Justice delayed is justice denied

Picture two people with the capacity to make decisions about medical assistance in dying (MAiD). Both have serious and incurable illnesses, are in an advanced state of irreversible decline in capability, and are experiencing enduring, unrelievable, and intolerable suffering. The first person, with a physical illness, can have access to medical assistance in dying. The second person, with a mental illness, cannot. They have the same level of enduring, unrelievable, and intolerable suffering, yet one has a legal path available to end it and the other does not.This is the state of Canada's current MAiD law, as it temporarily excludes persons with a mental disorder as their sole underlying medical condition (MD-SUMC). Recognizing the indefensibility of a permanent exclusion, Parliament included what is known as the “sunset clause” in the legislation that introduced the exclusion - the clause established that the exclusion would be automatically repealed in March 2023 (extended last winter until March 2024). However, there have been public calls for a Special Joint Committee of the House and Senate to recommend extending this deadline, for yet another year or even indefinitely.It is clear what justice requires – the removal of the exclusion of eligibility for MAiD for persons with mental disorders as their sole underlying condition. This has been clear since the Supreme Court of Canada issued its decision in Carter v. Canada in February 2015. This interpretation of the Carter decision was accepted by the Alberta Court of Appeal in EF in 2016, Justice Baudouin of the Quebec Superior Court in Truchon in 2019, and the government of Canada in 2019. It is a violation of the Canadian Charter of Rights and Freedoms to exclude capable individuals with a grievous and irremediable medical condition causing enduring and intolerable suffering that cannot be relieved under conditions acceptable to them. Some individuals with a mental disorder as their sole underlying medical condition can meet those eligibility criteria (international experience demonstrates that this will be a very small number). They must not be denied access on the basis of their diagnosis with a mental rather than a physical disorder.And yet, here we are again, on the verge of potentially delaying access to this justice. The argument being that “we aren't ready.” But is this true?Some people will never be ready – because they are opposed to MAiD MD-SUMC. For them, readiness is impossible.  The Committee should be alert to opponents of MAiD MD-SUMC cloaking themselves in claims of readiness when really they believe there should never be MAiD MD-SUMC.Some people are genuinely concerned about readiness but are uninformed or misinformed about what steps have been taken to ensure readiness. For example, a group of psychiatrists issued a letter last fall proclaiming that Canada wasn't ready for MAiD MD-SUMC. A sub-group of them has issued another letter this fall again proclaiming a lack of readiness. Yet it is clear that they were and remain unaware (and did not canvass the provinces/territories or MAiD practitioners or programs in order to become aware) of what has been done at the federal, provincial/territorial, regional, and local levels. While they as individuals may not feel ready, that is not evidence that others are similarly ill-prepared.What does a thorough canvas reveal? It reveals that the federal government has fulfilled every commitment that falls within its jurisdiction. Indeed, the federal government has now gone further than ever before in ensuring readiness. It amended its reporting regulations to ensure that the data needed is gathered. It created an independent Expert Panel to provide recommendations re: steps to be taken for MAiD MD-SUMC. It followed those recommendations. It also created an independent expert Task Group to draft a Model Practice Standard to assist regulatory bodies in the revision/establishment of practice standards. It funded the independent national accredited curriculum to train MAiD assessors and providers. This curriculum is now available to clinicians across Canada. It also supported a national Knowledge Exchange Workshop that brought together MAiD assessors and providers and psychiatrists from every jurisdiction in Canada to prepare together for the implementation of MAiD MD-SUMC. It is therefore time for the federal government to let the sunset clause take effect and lift the discriminatory exclusion of MAiD MD-SUMC.Some might say that the provinces/territories aren't ready. Perhaps some of them have not taken full advantage of the almost nine years since Carter or four years since Truchon or almost three years since being put on notice MAiD MD-SUMC exclusion would be lifted to put in place legislation, policies, or programs that they believe to be essential. Even if it is true that some provinces/territories aren't ready (which has not actually been established and we would dispute), it is not appropriate for the federal government to participate in the further delay of justice. If any provinces/territories are not ready, then they can put in place any barriers to access that they feel are necessary. If they aren't ready, that is their responsibility, and accountability for failing to meet their responsibility lies with them. Furthermore, laggard provinces or territories should not be able to hold hostage individuals in other provinces or territories that have done the work of getting ready for MAiD MD-SUMC. A further extension on the federal exclusion allows that indefensible result.Some might say that not all clinicians in Canada are ready. However, not all clinicians in Canada were ready for MAiD when it first came in. Furthermore, any individual clinicians who do not feel ready, are under no obligation to participate in MAiD. What matters is whether there are MAiD assessors and providers in Canada who are ready — and there are.Some might say that not all Canadians are ready. However, not all Canadians were ready for MAiD. Furthermore, no person is ever compelled to get MAiD. The protection of Charter rights does not and cannot wait for some subset of the public to be ready.In sum, we urge the Special Parliamentary Committee on MAiD to recommend that the federal government allow the sunset clause to take effect and to end the delays and stop the denial of justice.The Honourable James Cowan, CM, KC – retired Senator, member of the 2016 Special Joint Parliamentary Committee on Physician-Assisted Dying; DWDC Board member and Past Chair.Jocelyn Downie, CM, FRSC, FCAHS, SJD — Professor Emeritus, Faculties of Law and Medicine, Dalhousie University; Member pro bono legal team in Carter v. Canada, Royal Society of Canada Expert Panel on End-of-Life Decision-Making, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Council of Canadian Academies Expert Panel on Medical Assistance in Dying, and MAiD Practice Standards Task Group.

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