The senator who pushed for Canada’s assisted dying regime to include people whose only condition is a mental disorder says the debate about that policy is now over.
“The issue of expansion has already been decided upon,” said Stan Kutcher, who sits with the Independent Senators Group.
As far as Kutcher is concerned, the what was determined two years ago, when his arguments in the Senate convinced the Liberal government to move forward with an expansion of eligibility.
It’s just the when that recently came into question.
Last week, Parliament hastily passed a Liberal bill that has further delayed the expansion of assisted dying eligibility to people whose sole condition is a mental disorder.
In an interview, Kutcher said he supported the delay until March 2024 because it will allow proper training and practice standards to be made available to provincial regulatory bodies and practitioners.
Conservatives supported it, too. But they argue that the expansion should not happen in the first place, with Conservative Leader Pierre Poilievre saying he would repeal it if he became prime minister. In the meantime, British Columbia MP Ed Fast has proposed a private member’s bill to do the same.
Fast told reporters last week that he was concerned the Liberal government was “moving from a culture of life to a culture of death.” Those suffering from mental disorders deserve mental health and social support and counselling, he said. “They need to find some joy and some meaning in life.”
But Kutcher, who was a leading psychiatrist before joining the Senate, urged Canadians to stop thinking about patients in this category as lacking agency.
“Just because an individual might belong to a group that is considered to be vulnerable, doesn’t mean that individual is vulnerable,” he said.
And he invited those who think it is wrong to offer assisted dying to such patients to challenge the law at the Supreme Court: “I don’t know why they’re not, if they have such strong feelings.”
When the Liberal government was getting ready to pass its first major update to assisted dying law in 2021, it was initially reluctant to expand eligibility to people whose only condition is a mental disorder.
The legislation came in response to a 2019 Quebec Superior Court decision that struck down part of the original framework passed in 2016. The court found it was unconstitutional to only allow people whose death was “reasonably foreseeable” to apply for assisted dying.
The new law expanded eligibility to those who have a serious and incurable disease, illness or disability, were in an advanced state of decline and were suffering intolerably – even if their death was not imminently foreseeable.
Passing the bill was already going to put the federal government in better alignment with the criteria set out in the 2015 Supreme Court decision that had originally challenged the prohibition on assisted death as counter to the Charter of Rights and Freedoms.
But Kutcher recalled thinking that the government should go a step further to truly respect Charter rights.
“If you had Lou Gehrig’s disease, or if you had severe Parkinson’s, you would be eligible to apply for and be treated humanely and thoughtfully, and critically, you would have an opportunity to apply for relief of your suffering,” he said.
“But if you had a mental illness, you would be excluded from such. … I thought that that was a flagrant example of stigma and discrimination.”
Kutcher convinced senators to amend the bill in the Senate and send it back to the House of Commons, writing an 18-month delay into the law so that practitioners could get ready for what would be a major change.
The government added another six months to the clock – and, last week, another year – but was otherwise persuaded. The Liberals are not expected to further delay the expansion. It will happen automatically on March 17, 2024, unless there is a change in government before then.
That’s a good thing, says Helen Long, chief executive officer of advocacy group Dying with Dignity Canada.
Long said that some mental disorders are treatment resistant, just as some people cannot be cured of all their physical illnesses. The expansion, she said, is an equalizer, and will still require people who only have a mental disorder to meet all of the other eligibility criteria.
She added that the ongoing political debate about the policy “continues to stigmatize those individuals,” saying: “Just because you have a mental disorder does not mean you won’t have capacity.”
Without the Senate’s intervention, Long said it is likely a legal challenge would have been launched arguing that the regime discriminated against people whose only condition is a mental disorder.
That legal challenge is a sure thing if the government doesn’t go forward with the expansion next year, she said.
University of Waterloo political science professor Emmett Macfarlane says the exclusion of people who only have a mental illness was “ripe” for a Charter challenge based on equality rights.
“On its face, an exclusion would be discrimination on the basis of a disability,” he said. “It’s difficult to justify an absolute prohibition of people who are suffering from a mental illness.”
He said determining what counts as an irremediable condition should be left to the medical profession, adding that broader societal concerns about the availability of mental health resources, palliative care and material supports such as housing need to be addressed.
But the Supreme Court has made it clear that access to assisted dying is in line with the Charter, and that isn’t going to change, he said.
“We are never (as) a country going back to an absolute prohibition on medical aid in dying,” he said. “That debate is closed.”