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Presentation to the Standing Senate Committee on Legal and Constitutional Affairs regarding Medical Assistance in Dying (MAID)

Comments provided by the Canadian Mental Health Association to the Standing Senate Committee on Legal and Constitutional Affairs regarding Medical Assistance in Dying and Bill C-7, on November 23rd, 2020:

Good afternoon and thank you for the opportunity to speak today on behalf of the Canadian Mental Health Association. My name is Andrew Galley, and I’m the National Research and Policy Analyst for CMHA’s National office. My remarks will be summarizing our published position on medical assistance in dying as it relates to mental health, with consideration for new developments in the law and on the proposed amendment. Consistent with our published position, CMHA continues to support the exclusion from the law of mental illness as the sole underlying reason for medical assistance in dying.

CMHA is a federation of local, regional and provincial associations in all provinces and one territory. Many of our members provide mental health services, and some provide housing, employment and other supports. Our provincial divisions and our national office advocate for equitable, sustainable investment in mental health and addiction services. We support a recovery-oriented approach to mental health. To summarize, recovery in the mental health context refers to the idea that people can achieve stability and an active, full life in their communities, with or without the complete elimination of symptoms, if provided the supports that are right for them. We believe everyone facing mental health issues in Canada has the right to recovery.

In 2017, following the initial passage of the medical assistance in dying law, CMHA published a position paper stating that mental illness is not, by itself, an adequate qualification for MAID. We based this argument partly on the ‘reasonably foreseeable death’ clause which has now been struck down; however, that was not the only pillar of our position, nor was it the most compelling one. The law then, and the amended law being proposed, also contained the requirement that the condition of the applicant be “grievous and irremediable”, and that the applicant be in “an advanced state of decline in capabilities that cannot be reversed.” Our position is that there is inadequate evidence to determine, with the certainty that such a serious decision requires, that any particular case is irreversible and irremediable; that there is sufficient research evidence – although more research is needed – that many cases that appear resistant to treatment in fact show recovery over time.

There is no question that mental illness can be a grievous condition, and it is perhaps unfortunate that some of the language used in discussions of the new law might be interpreted as glossing over that fact. Suffering from mental illness is just as real as suffering from physical illness, and in some people that suffering may be, in the moment, intolerable and resistant to treatment. However, the research evidence shows that optimism is a rational attitude to serious mental illness; with the right supports, including health care as well as social and economic supports, recovery is possible. Our priority must be to ensure these supports are available to everyone in Canada who needs them. Future research might clarify the extent to which a particular case could be accurately diagnosed as “irremediable” even with treatment and supports; but currently we lack the rational basis even for experts to accurately detect which patients cannot recover.

I turn next to the requirement for irreversibility. The episodic recurrence and remission of symptoms is a well-known feature of serious mental illness. Indeed, it is a feature that adds to the social and economic costs imposed on those who experience a mental illness, since they are often unable to prove their eligibility for disability supports, such as the Disability Tax Credit and the benefits dependent on it. This pattern of recurrence and remission is particularly relevant for Major Depressive Disorder, which the WHO has identified as one of the most prevalent causes of disability worldwide, and for Bipolar Affective Disorder. When those symptoms include hopelessness and suicidality, extreme caution is called for; there is, of course, no more irreversible a condition than ending a life.

I turn finally to the important question of non-discrimination, which has been raised as a criticism of the proposed law, specifically with regards to the explicit exclusion of mental illness. The CMHA maintains that people experiencing a mental illness or mental health issues do not lose their ability to make independent medical decisions, including regarding a request for medical assistance in dying, where they are otherwise eligible. That is, when they are suffering from an irremediable and irreversible decline from a condition that fulfills all of the requirements of the law. CMHA believes the exclusion of mental illness as the sole underlying condition is a distinction based on the likely course of the illness, and not on the validity or severity of the condition itself. Those who would otherwise qualify for MAID should not be excluded on the basis that they also experience a mental illness.

This concludes my remarks, and I thank the Committee again for inviting CMHA to speak today.