Medical Aid in Dying and Mental Disorders: Debates, Delays, and Discourse in Canadian Legislation

Sub-titles available

Medical aid in dying became legal on June 17 in 2016 with the passage of bill c-14. Bill c-7, tabled on March 17, 2021, broadened the eligibility criteria for medical aid in dying, allowing access to those whose natural death is not foreseeable under certain additional conditions. However, the inclusion of mental illness as the sole reason for qualification was postponed until March 17, 2023.  

The exclusion was extended for one year by Bill c-39 on March 9, 2023, and then for a further three years, due to concerns about the health system’s readiness to provide such assistance as recommended by the Special Mixed Committee on Medical Assistance in Dying.  

Professor Emmanuel Bernheim explores the arguments surrounding medical aid in dying for severe and persistent mental disorders.  

I’m Emmanuelle Bernheim, Full Professor in the Civil Law Section of the Faculty of Law at the University of Ottawa, and I hold the Canada Research Chair in Mental Health and Access to Justice.  

You’ve certainly seen that the positions are very, very opposed. I’d say that those who support, particularly doctors’ associations, for example, who really support opening up medical aid in dying to people suffering from mental health problems, will have a very strong argument based on discrimination, on the fact that in fact prohibiting access constitutes discrimination in itself, since it’s also denying the seriousness, in fact, that certain mental health problems can have. The fact that we can’t necessarily help people to go on, to make them, to have a life that seems acceptable to them, that is pleasant for them. The fact that these people can live with distress for decades, and that this can resemble the severity of any other illness. So to make this difference in itself, when there is discrimination as much in terms of the illness itself, its severity, what it represents, but also the rights of the people concerned. And denying them this access is really an infringement of their rights. So, the people who support the initiative are more into this kind of argument, whereas the arguments against are going to have a basis which, in some respects, can be more moral, i.e. there are these ideas that we could tip over or go back into patterns that look a bit like engineering, for example, by targeting people who are vulnerable, for example, whom we could influence to go for medical assistance because they’re people we find, for example, not very productive, not very functional in our society, and it would be a roundabout way of getting rid of them to a certain extent.   

So we could slip into this kind of thing, and at the same time question the real capacity that people may actually have to consent to this kind of act. So, at the very least, we’re going to raise the question of whether a person with a serious mental health problem is really capable of expressing valid free and informed consent. And at that point, to really consent to this kind of procedure, in which case, since it’s irreversible, there’s a very high degree of seriousness attached to it. So, there are these elements too, which are more of the order of the need to protect people and the fact that there’s this idea that we must first protect them perhaps against themselves to a certain extent, but also that in a context where mental health services are little available.  

There is a need for systemic reforms in the medical and social fields because of the barriers to accessing mental health resources. Ms. Bernheim argues for public coverage of mental health services to reduce inequalities, and for the importance of social services in improving the quality of life of people with mental disorders.   

On several occasions, we’ve also seen people present at emergency departments, unable to get service even when they’re in great distress.

So it’s difficult, even to get an appointment with a doctor in the current context, but it’s perhaps the easiest thing left to do, in quotation marks, and insofar as social services, of which there are almost none, and psychologists, for example, are not covered by public insurance. So already there aren’t enough psychologists, but not everyone can access these services if they are available. It’s often a very limited number of sessions. So you’ll be able to have a telephone appointment with a psychologist followed by a few sessions. For example, a maximum of 10 sessions. For someone with major problems, even an average of ten sessions isn’t enough. So, in the end, the most accessible treatment in the current context is medication, which is not necessarily prescribed by a psychiatrist. We realize, however, that general practitioners will prescribe psychiatric medication. So it’s not necessarily the psychiatrist who’s going to do that, but that apart from access to medication, there’s not a lot of diversity of services is going to have some, some community services can be offered. But if you’re thinking about more sustained support for multidisciplinary teams, for example, that’s still rare. It’s home support for some people, like psychotherapy, as I was talking about. So different types of services are difficult to access, or not accessible at all, for a certain segment of the population.  

So, access is really very difficult at the moment, and what’s more, it doesn’t necessarily correspond to people’s needs. In other words, you already have access to very little, you’ll take what you’re offered, but it’s not necessarily what you would have wanted. So, once again, we don’t listen much to people and we don’t console them about what they’d like to get.  

The inclusion in legislation of mental illness as the only medical condition for obtaining medical aid in dying has sparked significant debate in the Canadian Parliament recently. Since the 2015 Carter v. Canada (Attorney General) decision and the subsequent passage of Bill C-14, medical aid in dying became legal on June 17, 2016. The Criminal Code now allows doctors and nurse practitioners to provide this assistance to capable and consenting adults suffering from a serious and irremediable condition leading to a foreseeable natural death.  

Bill C-7, tabled in the Parliament of Canada on March 17, 2021, expanded eligibility criteria for people whose natural death is not foreseeable, under certain conditions. However, the inclusion of mental illness as the sole reason for qualification sparked fierce debate and has still not been accepted by Parliament.

Students wanted to weigh up the pros and cons of this debate and looked at the structural issues involved in caring for people suffering from mental disorders. Together with Professor Emmanuelle Bernheim, they explore the arguments for and against Parliament’s refusal to extend medical aid in dying.

For Professor Emmanuelle Bernheim, this debate raises systemic issues in both the medical and social spheres, including the question of barriers to accessing mental health resources. Professor Bernheim advocates public coverage of mental health services to reduce inequalities and stresses the importance of social services in improving the quality of life of people with mental disorders.

This visual advocacy video was produced by law students Amanda Buttice, Alexandra Castiel, Grace El Chami, Shaun Jamison and Kim Nguyen as part of the Visual Advocacy/Law and Film course offered at the University of Ottawa, Faculty of Law, Civil Law Section.

Learn More
About the Project

Stay informed of our latest news and publications