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Gold’s Legal Minute*GLM* – Bulletin
By Allan Gold lawyer Montreal and elder law attorney
Vol. 15, #1 – January 31, 2024
Medical Assistance in Dying (MaiD): Call a doctor – Ottawa has a bad case of Indecisiveness! (a reaction to the Jan. 30, 2024 decision by Health Minister)**
Dateline Ottawa, Jan. 30, 2024: “This is Ottawa – ‘The federal government said Monday it is seeking another pause on extending medical assistance in dying to those suffering solely from mental illnesses. ‘It’s clear from the conversations we’ve had that the system is not ready,’ Health Minister Mark Holland said.’” 2
I ask, “What have we got here?” Front and center, the Liberal position is ‘Yes, I want to do this.’ But overwritten is ‘I really don’t want to do this.’ And written on top of that is ‘Maybe I could do this.” We can speculate whether it’s “Yes-leaning.” If so, we can ponder whether it might be very favorable, mostly favorable or mildly favorable. Instead, we can speculate whether it’s “No-leaning.” If so, we could try to figure out if it’s a ‘hard no’ or a ‘soft no.’ But on the other hand, it might be a ‘definite maybe.‘ In caucus, supportive Liberals may say this is a ‘stop and think’ move. The motivation could be the lack of specificity in the criteria under the legislation. This means that qualification for MaiD might be open to interpretation by medical practitioners. Opponents could see it as a chance to ‘pause and reconsider.’ Fence sitters are in a semi-permanent ‘wait and see’ mode.
Here’s my take. I’m underwhelmed by the federal government’s handling of this sensitive file. Today’s indecision doesn’t look good on the PM and the Liberals. I believe this ‘Yes Yes No No Maybe Maybe’ is a ‘Kick the can down the road’ maneuver. I say, “Don’t dawdle with ‘life and death’ matters. The more you dally – the more vulnerable people get hurt! And you can quote me on that!”
But more substantively, I’m of the opinion that this proposed expansion is misguided policy. For more, please refer to my blog post of May 18, 2023, titled, ” I say, “No to Medical Assistance in Dying (MAiD) for those whose sole underlying medical condition is a mental illness.”
But let me give you some context here and now. On Sept. 11, 2019,the Superior Court of Québec rendered a judgment in the Truchon case (-no appeal was lodged therefrom.) It declared unconstitutional the “reasonable foreseeability of natural death” (RFND) eligibility criterion contained in the federal MAiD legislation, and the “end of life” eligibility criterion contained in Quebec’s Act Respecting End-of-Life Care. On March 17, 2021, Parliament passed former Bill C-7 to revise eligibility criteria for obtaining MaiD. The government accepted a Senate amendment to remove the exclusion of people whose sole underlying condition is a mental illness. A two-year delay was allowed to get ready. On Feb. 2, 2023, the Liberal government introduced legislation (former Bill C-39) to “extend the temporary exclusion of eligibility in circumstances where a person’s sole underlying medical condition is a mental illness for a period of one year, until March 17, 2024.”
Also relevant are happenings in Quebec. On Feb. 16, 2023, the government tabled Bill 11, to modify the act respecting end-of-life care to allow people to make an advanced request for MAID. It’s noteworthy that the Quebec bill did not expand MAID to those with mental disorders like depression. The Minister of Seniors, Sonia Bélanger then had her reasons. She stated, “a mental disorder is not considered to be an illness.” She also said that “during consultations with medical professionals, the public and advocacy groups, no consensus emerged around the inclusion of mental disorders in the MAID legislation…” 3 On June 7, 2023, Quebec adopted this bill into provincial law.
This said, here’s my 1-2-3 for the Canadian government to get out of this mess.
1. Make a decision. Be honest – you don’t want this to be the law of the land. Don’t give false hope.
2. Take a decisive action. Make a quick retreat. Announce the withdrawal of the bill.
3. Declare your agreement with legal experts, saying there’s nothing in the law, compelling the country to further expand eligibility. – OR- Bring a new case. This is preferable because we’re at this junction, in part due to judgments rendered by our courts. And a judicial decision would be far stronger than mere support of a legal opinion. To be clear, this would be a court challenge raising issues similar to those in the prior cases. Take it to the Supreme Court. Distinguish this new case from earlier decisions. Plead that this extension of MAiD is not what the Supreme Court had intended. Ask the judges to rule that medical assistance in dying is not a right of persons suffering solely from mental illnesses.
In this way, we would push this MaiD genie partly back into the bottle. I’m mindful of those fiercely in disagreement. Proponents argue that we’re singling out persons suffering solely from mental illnesses. They assert that these patients don’t need protection. I don’t agree. Qualifying criteria is general. And I reject the insinuation that good-thinking citizens are being paternalistic. Proponents also say these sufferers have the same rights as other Canadians, are entitled to dignity in dying. They’re absolutely right. But for me, it’s a matter of fundamental principle. We, as a society, must help these vulnerable persons – read provide ‘care’ – not help them to die!
Allan Gold, lawyer Montreal and elder law attorney, www.allanjgold.com/blog-glm/
P.S. Here’s something to think about:“Nothing is so exhausting as indecision, and nothing is so futile.” — Bertrand Russell 4
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NOTICE – CAUTION –DISCLAIMER.
The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.
1. Image by Rilson S. Avelar from Pixabay
2. https://www.cbc.ca/news/politics/provinces-maid-ottawa-delay-1.7099237
3. https://www.cbc.ca/news/canada/montreal/quebec-maid-advanced-consent-1.6750423
4. https://quotefancy.com/quote/773501/Bertrand-Russell-Nothing-is-so-exhausting-as-indecision-and-nothing-is-so-futile
* ©/TM 2006, 2008, 2018 Allan Gold, Practitioners’ Press Inc. – ALL RIGHTS RESERVED
**© 2024– ALLAN GOLD – ALL RIGHTS RESERVED- Ed. 2024-01-31-001
