Permitting MAID when mental illness is the sole underlying medical condition

In a nutshell

Medical assistance in dying where mental illness is the sole underlying condition presents some of the most difficult legal and clinical questions in the current MAID framework. The CBA takes no position on the underlying policy question, as this is a judgment that belongs to Parliament. The CBA's mandate is to ensure the law is clear, the safeguards are enforceable, and the rights of all persons affected are properly protected.

Key considerations

The suffering experienced by individuals living with mental illness is significant and warrants consideration the same consideration as that associated with physical illness. Conversely, the state’s interest in protecting vulnerable persons and maintaining the integrity of the MAID regime must be considered. The CBA underscores the importance of rule of law considerations, including the transparency and fairness of any oversight mechanisms, and recommends the following to the committee:

• Individuals living with mental illness experience increased and intersecting levels of vulnerability in health care settings, and, accordingly, require that appropriate safeguards are in place with respect to the availability of MAID. The CBA recommends ongoing collaboration with health care professionals to inform a legal framework that is capable of supporting consistent and safe MAID practice across Canada.
• Consideration should be given to ensuring that any amendments to the Criminal Code relating to MAID align with the constitutional framework articulated by the Supreme Court of Canada in Carter v Canada, including respect for autonomy, dignity, and the requirement for carefully designed and monitored safeguards.
• There should be consideration whether MAID eligibility criteria appropriately reflect the complexity of cases involving mental illness as the sole underlying condition, including whether they may create barriers to access, while recognizing the need for a cautious and evidence-based approach. In this context, special care should be given to assessing a person’s decision-making capacity, to determining what expertise is needed of assessors when mental illness is the sole underlying medical condition, and to determining how soon after being diagnosed with a mental illness a person may request MAID.
• Commit to empirical evaluation and public reporting on the sufficiency of the legislative and regulatory safeguards to protect the autonomy of vulnerable groups.
• Consult with the relevant affinity groups and individuals who self identify as members of marginalized or adversely affected communities.
• Should Parliament expand MAID in mental illness, a clear definition is needed, given the varying legal definitions of mental illness and mental disorder across Canada.

Why this matters

MAID where mental illness is the sole underlying medical condition raises complex legal, ethical, and clinical considerations, engages differing perspectives, and requires careful balancing of individual autonomy and the protection of potentially vulnerable persons. As Parliament considers the expansion of MAID eligibility, the importance of the rule of law, robust procedural safeguards, and the feasibility of implementing these legal mechanisms must be considered.

Read the full submission.