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Provinces ask Ottawa for indefinite pause on expansion of assisted dying eligibility

OTTAWA — A majority of provinces and territories are asking the federal government to "indefinitely" hold off on a controversial plan to expand eligibility for assisted dying.
Health Minister Mark Holland speaks to the media during the federal cabinet retreat in Montreal, Monday, Jan. 22, 2024. Most provinces and territories are asking the federal government to "indefinitely pause" expanding the eligibility for assisted death. THE CANADIAN PRESS/Christinne Muschi

OTTAWA — A majority of provinces and territories are asking the federal government to "indefinitely" hold off on a controversial plan to expand eligibility for assisted dying. 

The Liberal government is facing pressure to stipulate what such a delay could look like, with the extension of eligibility for people who only have a mental illness due to take place in mid-March. 

Health and mental-health ministers from all three territories, along with Alberta, Saskatchewan, Ontario, New Brunswick and British Columbia, are prodding their federal counterparts for more time. 

A parliamentary committee urged much the same in its final report Monday, warning that the health system is not ready to allow medical assistance in dying for people whose only condition is a mental illness. 

The committee, which heard from 21 expert witnesses and received hundreds more briefs, concluded it heard "significant testimony" the system was not ready.

It found that critical questions remained unanswered, such as how to tell if patients requesting an assisted death are suicidal or whether it is possible for them to get better.

There's simply too much work to be done, the provincial and territorial ministers warned in a letter to Health Minister Mark Holland and Justice Minister Arif Virani.

"It is critical that all jurisdictions, health authorities, regulators and practitioners have sufficient time to implement these safeguards and to address capacity concerns that are expected to result from the expansion," the letter read. 

"We encourage you … to indefinitely pause the implementation of the expanded (medical assistance in dying) eligibility criteria to enable further collaboration between provinces, territories, and the federal government."

Ministers from Nova Scotia and P.E.I. said their provinces are better prepared for the changes, but nonetheless signed on to support their colleagues. 

Reacting to the committee report on Monday, both Holland and Virani said they agreed with its conclusions and the system needs more time. 

But just how much is still in question, and ministers are staying mum until new legislation is tabled. 

The federal Conservatives are calling on the Liberals to cancel plans for the expansion altogether. The New Democrats want to see more mental-health supports in place first. 

NDP MP Alistair MacGregor, who sat on the parliamentary committee that probed the issue, says while New Democrats haven't seen what the Liberals are proposing for a delay, he would be "hesitant" to attach a timeline to it. 

The Liberals already legislated a one-year delay to the expansion last year, and that "obviously wasn't enough," he said. 

MacGregor said Holland must listen to the call for an indefinite pause coming from provinces, since they are ultimately responsible for the overseeing of its system. 

Holland told reporters on Tuesday that the government must listen to what the provinces are saying, but also what medical professionals report about the readiness of the system.

He acknowledged that for some provinces, ideology may be at play. 

The Alberta government, for example, says it is calling for an indefinite delay because it does not believe that offering a medically assisted death to someone with a mental disorder belongs in the health-care system at all. 

The minister said jurisdictions saying "that they don't ever want this to occur" is, in his view, "not a tenable position" and that Ottawa maintains mental suffering is equal to physical suffering. 

Still, provincial ministers from across the political spectrum are raising concerns, Holland noted. 

"I've talked with health ministers from New Democratic governments, health minsters from a Liberal government, a health minister from Quebec — all of whom say their system isn't ready," he said. 

"So it's not just conservative health ministers that are saying this."

Quebec passed a law last year that excludes adults in that province from accessing a medically assisted death solely for a mental disorder.

The federal government introduced an update to the assisted dying law in 2020 that initially excluded people suffering solely from mental illness. The Senate amended the bill to include them, and the government accepted the change. 

The law, which passed in March 2021, included a two-year clock on the coming-into-force of the provision to allow practitioners and health-care systems to get ready. 

Last year, the Liberal government added another year to that timeline with support from across the political aisle.

If the government opts to pause the expansion indefinitely, that could leave the door open to a constitutional challenge, said Shelley Birenbaum, chair of the end-of-life working group at the Canadian Bar Association.

"I think that it's a grave injustice to those whose suffering is so great that they wish to access MAID as a response," said Birenbaum, a Toronto-based health lawyer. 

Even if the minister tables legislation that sets a new deadline to expand the eligibility, she said she doesn't know who would trust the government to meet it. 

She also said she doesn't believe a parliamentary committee is the appropriate body to determine clinical readiness.

"Why would laypeople sitting on a committee, who are not experts in any of these fields, be able to assess readiness?" she said. 

There has been recent debate within the bar association over whether it should maintain its position that excluding people with a mental illness would violate their rights. Birenbaum said until then, she will continue to advocate for that position. 

MPs and senators heard a variety of legal opinions during hearings last fall. 

Some argued that excluding people who only have a mental illness violates their rights, while others said such patients are vulnerable and would be at greater risk if assisted death becomes an option. 

Dying With Dignity Canada and other proponents of the expansion say excluding those with mental illness perpetrates a belief that they cannot make decisions for themselves.

This report by The Canadian Press was first published Jan. 30, 2024. 

Stephanie Taylor and Laura Osman, The Canadian Press