The Trudeau government has agreed with the Senate that Canadians suffering solely from grievous and irremediable mental illnesses should be entitled to receive medical assistance in dying — but not for another two years.
The two-year interlude is six months longer than what was proposed by senators.
It is one of a number of changes to Bill C-7 proposed by the government in response to amendments approved last week by the Senate.
The government has rejected another Senate amendment that would have allowed people who fear being diagnosed with dementia or other cognitive-impairing conditions to make advance requests for an assisted death.
It has also rejected one other amendment and modified two others in a motion that was debated Tuesday in the House of Commons.
Justice Minister David Lametti told the Commons he believes the response to the Senate amendments is “fair and realistic.”
The Bloc Quebecois announced it will support the minority Liberal government’s response, assuring it will pass.
Once approved by the Commons, the bill will go back to the Senate, where senators will have to decide whether to accept the verdict of the elected chamber or dig in their heels.
Bill C-7 would expand access to assisted dying to intolerably suffering individuals who are not approaching the natural end of their lives, bringing the law into compliance with a 2019 Quebec Superior Court ruling.
As originally drafted, the bill would have imposed a blanket ban on assisted dying for people suffering solely from mental illnesses.
A majority of senators argued that the exclusion was unconstitutional, violating the right to equal treatment under the law, regardless of physical or mental disability. They voted to impose an 18-month time limit on the exclusion, which the government now wants to extend to two years.
Lametti told the Commons he still believes the exclusion is constitutional and he “does not believe we are entirely ready” to safely provide assisted dying for people with mental illnesses.
Nevertheless, he said the government has heard the concerns of Canadians who fear the exclusion may never be lifted and will, therefore, support a two-year sunset clause.
“We think 24 months is still an ambitious timeline to implement such an important change in Canada’s MAID (medical assistance in dying) policy, but it still provides a fixed timeline in the relatively near future,” Lametti said.
During the two-year interlude, the government is also proposing to have an expert panel conduct an independent review of the issue and, within one year, recommend the “protocols, guidance and safeguards” that should apply to requests for assisted dying from people with a mental illness.
Sen. Stan Kutcher, a psychiatrist and member of the Independent Senators Group who proposed the 18-month sunset clause, said he can accept that an additional six months may be needed. He also welcomed the creation of an expert panel to develop safeguards.
The Canadian Mental Health Association, however, was “deeply disappointed” by the government’s response.
“Until the health-care system adequately responds to the mental health needs of Canadians, assisted dying should not be an option — not now and not two years from now,” the association said in a statement.
If the two-year sunset clause is approved, the association said the government must commit to “a substantial increase” in funding for mental health care to help alleviate suffering.
In rejecting advance requests, the government motion argues that the Senate amendment on that issue “goes beyond the scope of the bill” and requires “significant consultation and study,” including a “careful examination of safeguards.”
Sen. Pamela Wallin, a member of the Canadian Senators Group who proposed the advance request amendment, said its outright rejection by the government “only serves to perpetuate the catch-22 that punishes those with cognitive impairment or dementia and all those who simply want some choices knowing that a diagnosis of Alzheimer’s is inevitable.”
Lametti said he knows many Canadians will be disappointed. But he said the issue of advance requests should be examined during the legally required five-year parliamentary review of the assisted-dying law, which was supposed to have begun last June but has yet to materialize.
The government has agreed to a modified version of a Senate amendment to finally get that review underway within 30 days of Bill C-7 receiving royal assent.
It is proposing to create a joint Commons-Senate committee to review the assisted-dying regime, including issues related to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities. The committee would be required to report back, with any recommended changes, within one year.
The government has also agreed to a modified version of another Senate amendment to require the collection of race-based data on who is requesting and receiving medical assistance in dying.
It is proposing to expand that to include data on people with disabilities and to specify that the information be used to determine if there is “the presence of any inequality — including systemic inequality — or disadvantage based on race, Indigenous identity, disability or other characteristics.”
That’s in response to the strenuous opposition to Bill C-7 from disability rights advocates who maintain the bill sends the message that life with a disability is a fate worse than death. They’ve also argued that Black, racialized and Indigenous people with disabilities, already marginalized and facing systemic discrimination in the health system, could be induced to end their lives prematurely due to poverty and a lack of support services.
Some critics have also raised concerns about unequal access to assisted dying for marginalized people, rural Canadians and Indigenous people in remote communities.
The government’s response did not satisfy either the Conservatives, who largely opposed the original bill, or the New Democrats, who object in principle to the unelected Senate making substantive changes to legislation passed by the Commons.
NDP MP Charlie Angus criticized the “unelected and unaccountable Senate” for expanding assisted dying to “people who are depressed.”
Conservative MP Michael Barrett moved an amendment to the government motion that would delete the proposed sunset clause on the mental illness exclusion.
He further slammed the government for ignoring the concerns of disability rights advocates and signalled that his party will not go along with the government’s “fevered rush” to pass what he called a “deeply flawed” bill.
The government offered late Tuesday afternoon to extend the debate until midnight, but the Conservatives denied the necessary unanimous consent — despite having called for additional time to thoroughly debate the government’s response to the Senate amendments. It was unclear when debate will resume.
The government had hoped the bill could be passed by both parliamentary chambers by Friday to meet the thrice-extended court-imposed deadline for bringing the law into compliance with the 2019 ruling.
But it is also poised to ask the court on Thursday to give it one more month — until March 26.
Lametti admitted he’s concerned the Conservatives, who dragged out debate on the original bill last December, are intent on blocking it altogether. He appealed to Conservative Leader Erin O’Toole to show leadership and allow a vote on the government motion.
“This is not the time to relitigate old battles, not with the Quebec Superior Court deadline looming, not with Canadians suffering while they wait for medical assistance in dying,” he told a news conference later Tuesday.
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