Access to assisted dying program expanding. Is that really wise?

By Tony Poland, LegalMatters Staff • With some people considering medical assistance in dying (MAiD) because of the financial burdens of living with a physical or mental disability, lawyer Leanne Goldstein says governments must provide more support to prevent unnecessary suffering and death.

Goldstein, founder and senior lawyer at Leanne Goldstein Law Professional Corporation, says the federal government will potentially open up MAiD to those with mental illness in 2023. Meanwhile, she says she recently came across a news report of a woman suffering from long COVID who has begun the process of applying for the program in what is described as “exclusively a financial consideration.”

“It is tragic that certain people struggling with debilitating physical and/or mental issues are resorting to MAiD because they are unable to access financial or medical support. They are living in poverty and feel they have no other option,” Goldstein tells LegalMattersCanada.ca. “Whether it is a lack of support financially for people, or in cases such as long COVID where they believe there is no medical support for their condition, they are choosing to pursue MAiD. 

‘Government needs to focus more on the medical, financial support’

Goldstein says she believes that “the government needs to focus more on the medical and financial support it can give people rather than focusing on increasing this legislation so that more people can access it.” 

She says “there are so many individuals struggling with physical and mental disabilities who are required to survive on nominal monthly incomes which, in many cases, leaves them unable to afford safe, accessible housing, food and clothing.

“People have actually chosen to apply to MAiD because they are going to lose their home and they have no way to access funding or support,” says Goldstein. “They are looking to their future and they feel hopeless.”

The issue of assisted dying really came to the public’s attention after Canadian right-to-die activist Sue Rodriquez took her case to the Supreme Court of Canada (SCC) in September 1993, she says. Rodriquez, who was given two to five years to live in 1991 after being diagnosed with amyotrophic lateral sclerosis (Lou Gehrig’s disease), argued that the section of the Criminal Code prohibiting assisted suicide was unconstitutional. After losing her case in 5-4 decision, Rodriquez committed suicide in February 1994 with the help of an anonymous doctor. 

Criminal Code prohibition ruled unconstitutional

In Carter v. Canada in February 2015, the Supreme Court ruled the Criminal Code prohibition was unconstitutional since it breached the rights to life, liberty and security of the person, under the Charter of Rights and Freedoms. The SCC turned the issue over to the federal government to create a new law allowing eligible Canadian adults to request medical assistance in dying. That legislation was passed in June 2016.

According to the Government of Canada, those applying for medical assistance in dying must:

• be at least 18 years old and mentally competent;
• make a voluntary request for MAiD that is not the result of outside pressure or influence;
• give informed consent to receive MAiD;
• have a serious illness, disease or disability (excluding a mental illness until March 17, 2023);
• be in an advanced state of decline that cannot be reversed; and
• experience unbearable physical or mental suffering from an illness, disease, disability or state of decline that cannot be relieved under conditions considered acceptable by the applicant.

A person does not need “a fatal or terminal condition to be eligible for medical assistance in dying,” the government states.

The government revised the law 2021 and initially prohibited medically assisted death for people dealing with a mental health issue. However, that was changed by the Senate, which means that people with a mental illness can potentially use that as their sole reason for requesting MAiD in March 2023.

Expanding access to MAiD is a difficult issue

Allowing those with mental health issues to access assisted dying is a difficult issue, Goldstein says. She cites findings by an expert panel that noted the challenge associated with establishing when a person’s mental illness is incurable and how many supports and treatments should be tried before that conclusion is reached. 

“This will vary according to the nature and severity of medical conditions the person has and their overall health status,” the expert panel said in a Toronto Star report. “This must be assessed on a case-by-case basis.”

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Goldstein says her firm deals with long-term disability benefits claims for many individuals dealing with mental illness and it can be difficult even for their clients’ own treatment providers to definitively determine if their condition and their quality of life will improve with treatment. 

From her own observations, she says “mental illness is often not linear in its progression or regression but can be more cyclical. “Symptoms of mental illnesses can wax and wane,” says Goldstein. “Although there may be some who never improve, how do you determine who those people are? How can you predict if someone’s mental health will improve or not?” 

She cites the example of certain individuals who have been prevented from committing suicide and have ultimately turned their lives around.

Some considering assisted dying because of financial concerns

What is especially heartbreaking, says Goldstein, is seeing reports of people with mental illness considering an assisted dying application because their financial outcome is bleak. She says researchers have stated medically assisted dying is not being driven by factors such as poverty but the reality is people are still contemplating it for those reasons. 

“Studies have found that there really is no link between MAiD and poverty but many disability advocates are saying that people are resorting to this program because they don’t have any other choice,” Goldstein says. “Numbers should not matter. Even if it is just one person who has to make that choice, that is so tragic.” 

Governments at all levels should be taking a closer look at the link between assisted dying applications and poverty and find ways to support people in need, she says.

‘Governments should be more discerning in how they spend their money’

“Governments should be more discerning in how they spend their money. There was a recent report of 300,000 teenagers receiving $636-million in CERB payments.” Goldstein says. “Instead of critically analyzing who really needs assistance, it seems those with disabilities, those who are struggling already, are the ones who end up struggling more. It is infuriating.”

She says “taking away support or failing to provide financial aid to people so that they can live a meaningful life can be so detrimental” and lead them to a choice they may not necessarily want to make.

“It is challenging and such a difficult area to wade into. It is ironic that it sometimes seems it is easier for people dealing with disabilities and poverty to access MAiD than it is to access support,” Goldstein says. “Obviously accessing MAiD is a complex personal choice and people in Canada have that choice. But should we not be protecting people in a different way rather than forcing them to resort to taking their own lives because they feel they have run out of financial options?”