Members of the Canadian Bar Association will debate Ottawa’s planned expansion of medically assisted death for people whose sole medical condition is mental illness at next month’s annual general meeting.
One resolution up for discussion calls on the organization, which represents lawyers and legal professionals across the country, to “withdraw” its prior public statements that support medical assistance in dying (MAID) for people whose only medical condition is mental illness.
The resolution also urges the government not to allow MAID for mental illness “unless and until there is a reliable manner to determine whether the psychiatric conditions are irremediable.” It cites a lack of consensus among psychiatrists about whether mental illnesses are irremediable.
In 2016, the CBA passed three resolutions supporting MAID. These resolutions supported MAID for people with mental illnesses, MAID for mature minors and the creation of advance directives that allow patients to request to receive MAID in the future at any time after being diagnosed with an “grievous and irremediable” condition. The resolution about MAID for mental illness calls on the CBA to encourage governments to “ensure that persons with psychiatric conditions who seek medical assistance in dying are not faced with additional barriers by virtue solely of their psychiatric condition.”
Resolutions passed by CBA members form the basis of the CBA’s policies and submissions to government. These submissions must be consistent with the resolutions, Thomas Ullyett, chair of the CBA Policy Committee said in a written statement to Canadian Affairs.
The CBA has written to the government several times supporting MAID for people whose sole condition is mental illness, and has submitted information to government committees that have studied MAID for mental illness. It has also written to Cabinet ministers urging the government to allow MAID for mental illness. But the CBA has not adopted any resolutions about MAID since 2016.
‘Democratic say’
The CBA represents 38,000 lawyers, judges and legal professionals across the country. Membership is voluntary — except in New Brunswick where the law society requires it. Members can join sections, which are groups that focus on a particular area of law.
The resolution up for debate this year shows CBA members are divided about whether allowing MAID for mental illness is a correct interpretation of the Supreme Court of Canada’s Carter decision. That decision said prohibitions on physician-assisted suicide are unconstitutional.
Physician-assisted suicide was legalized in 2016, but only for adults with “grievous and irremediable” conditions whose deaths were “reasonably foreseeable” and who were able to make decisions about health care. Mental illness alone did not qualify, the law said.
The government is set on March 17 to allow MAID for people whose sole condition is mental illness. The requirement that someone’s death must be “reasonably foreseeable” to be eligible was removed in 2021.
Supporters of the resolution to withdraw CBA’s public endorsement of MAID for mental illness say the Carter decision does not apply to situations where an individual’s death is not reasonably foreseeable.
The Carter decision “intentionally didn’t speak to mental illness as a sole underlying condition,” said Kerri Froc, a law professor at the University of New Brunswick. Froc is seconding the motion to withdraw the CBA’s past support for MAID for mental illness. The Carter case did not involve a person whose only condition was mental illness, and those are the facts the court considered, she says.
Garifalia Milousis, who wrote the resolution up for debate in February, says the CBA’s members need to discuss this subject again.
“I am concerned that Canadian Bar Association members are not aware, or did not have an appropriate democratic say, in how this resolution is now being used,” said Milousis, who is secretary of the constitutional and human rights law section.
The preamble to the CBA’s 2016 resolution mentions an Alberta Court of Appeal decision that said Carter should be interpreted to include mental illness if individuals “otherwise fit the criteria for medical assistance in dying.” The resolution then urges the government to ensure that people with mental illnesses are eligible for MAID. The resolution says this would be consistent with the Carter decision.
CBA members may not have known that this 2016 resolution was going to be used to support allowing MAID for people whose only condition is a mental illness, says Milousis.
“It’s not an activist resolution,” she said, referring to the resolution that will be voted on in February. Lawyers can reasonably disagree about whether MAID for mental illness should be allowed. And they should be able to discuss it.
Milousis is also a member of Christian Legal Fellowship, an organization that intervened in Carter to argue against legalizing MAID.
The CBA’s constitutional and human rights section voted to endorse Milousis’ resolution. Sections can endorse or oppose resolutions and encourage their members to vote in specific ways. But all CBA members can vote however they choose at the annual general meeting.
Sharp criticism
According to the CBA, 100 members are needed to establish the quorum for voting, but members are not required to vote on every resolution. Resolutions need a majority of votes in favour to pass. The annual general meeting has been virtual since 2020, so voting happens on a virtual platform.
Before 2020, the meetings were held in-person. The CBA’s 2016 resolution supporting MAID for mental illness passed by a “clear majority,” Ullyett said in a statement.
The resolution Milousis is bringing forward has already garnered sharp criticism.
“I really hope that this resolution does not pass,” said Shelley Birenbaum, chair of the association’s end-of-life working group. The working group put forward the resolutions about MAID in 2016, including the one about MAID for mental illness. It has mainly focused on MAID since 2016, said Birenbaum, who has been a member of the group since it formed in 2014.
The resolution put forward this year “seeks to overthrow our resolution without saying it,” said Birenbaum.
Consensus on treatment among the medical profession should not be required before allowing MAID for mental illness, says Birenbaum. “There is no consensus on how you treat many diseases.” For example, people with fibromyalgia could be eligible for MAID even though doctors disagree on how to treat it, she says.
Birenbaum is a former member of the now defunct legal advisory committee for Dying with Dignity Canada, an organization that advocates for MAID access. She supports that organization’s work, she says.
The CBA’s end-of-life working group has always disagreed with restricting MAID to people whose deaths are “reasonably foreseeable,” says Birenbaum. It has always said mental illness alone should make someone eligible for MAID, she says.
The Canadian Bar Association’s annual general meeting is February 8.
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