United Nations report says Canada should repeal MAID for people with non-terminal illness

Some Nova Scotia doctors are arguing a policy approved by the medical regulator requiring they make referrals for medically assisted deaths could force physicians from their practices and harm recruitment. A patient has his hand held at a hospital, in Minneapolis, Monday, May 3, 2021. THE CANADIAN PRESS-David Joles-Star Tribune via AP (David Joles/THE CANADIAN PRESS)

A recent report by the United Nations Committee on the Rights of Persons with Disabilities has asked Ottawa to repeal medical assistance in dying (MAID) for anyone without a terminal illness, also known as “Track 2” in Canada’s MAID program.

Presented last month at a meeting of the committee, the report recommends Canada create a federal MAID watchdog to look into complaints and investigate the causes that lead to people with disabilities applying for assisted death in the first place.

MAID is offered as a state-sanctioned relief for people who were failed by the government due to improper access to health care or housing, the report says. Poverty, lack of access to employment and services for people with disabilities and the lack of a support system were also cited as factors.

The UN committee wrote it is “extremely concerned” by Ottawa’s broadening of Canada’s MAID laws in 2021 to offer medically assisted death to people who have permanent, but non-terminal physical illnesses.

MAID Track 2 has expanded rapidly since legalization but only represented four per cent of the 15,323 people who chose MAID (Track 1 and 2 combined) in 2023, according to Health Canada data.

Charlotte-Anne Malischewsk, president of the Canadian Human Rights Commission, told the committee that too many Canadians with disabilities lacked access to supports and services like health care, medication and equipment.

“Some persons with disabilities were turning to medical assistance in dying because they felt they had no other options, which was terrifying,” a summary of her comments at the meeting reads.

“The Commission remained concerned about Canada’s lack of progress in implementing the recommendations from the international human rights system, including from the Committee,” it says. “Canada needed a strong framework for implementation and monitoring to drive meaningful and coordinated progress, and to meet its obligations.”

‘We offer them support; we don’t offer them death’

Isabel Grant, a criminal law professor at the University of British Columbia, says Track 2 is premised on the idea that death is preferable for people with disabilities.

On behalf of the Feminist Alliance on International Action, Grant co-authored a submission to the Geneva hearings about repealing MAID Track 2, published on March 27.

“Somebody else who wants to die, we offer them suicide prevention, we offer them supports,” Grant told CTVNews.ca on Friday. “We don’t offer them death.”

It’s a choice people with disabilities make often due to facing social and economic inequalities, and Canadian government’s failure to provide support, according to Grant.

“People with disabilities who are suffering are being offered death, as opposed to what they might need to alleviate their suffering,” she said.

“The people who are reporting to the federal government are the people who are giving the MAID death,” Grant said. “They just check a bunch of boxes on the form and they send that off to the federal government. There’s no independent national oversight going on. And there’s no oversight in any province prior to death, it’s always after the MAID death has happened.”

The submission made to the Geneva hearings says MAID Track 2 threatens the rights outlined in the Convention on the Rights of Persons with Disabilities by disproportionately endangering women with disabilities.

The committee issued recommendations that included repealing Track 2 of MAID, rejecting proposals of offering MAID to “mature minors” under the age of 18, investing in federal, provincial and territorial measures to address the social determinants of health and establishing a resourced federal independent oversight for MAID monitoring.

According to Grant, more than half of the recipients of Track 2 are women with disabilities.

“I think the social inequality that women face, the social inequality that disabled women face, and then the social inequality that elderly disabled women face is so significant in Canada that I think all of those factors feed into them feeling there’s no good option to alleviate their suffering, whether that’s from a history of violence, a history of inadequate health care access, a history of inadequate housing or supports, feeling very socially isolated.”

Legal framework designed with safeguards: Health Canada

The UN committee also asked the federal government to end the proposed expansion of MAID for patients with mental disorders, but no physical illness, and to ban any federal support for any requests in advance.

Quebec announced last October that people with dementia or Alzheimer’s disease could get approvals before their mental capacity declines.

Health Canada says they have no intention of repealing the Track 2 of MAID and will continue to stand with the system created by them, a spokesperson for Health Canada told CTVNews.ca in a statement.

“The legal framework for MAID, including Track 2, has been designed with safeguards to affirm and protect the inherent and equal value of every person’s life,” the statement reads.

“Enhanced safeguards are in place for individuals who request MAID under Track 2 to provide additional protection. These include that the person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services.”

The health agency said the Government of Canada will complete the review of the final concluding observations and recommendations and consider its response to the UN Committee on the Rights of Persons with Disabilities.

Track 2 MAID was first established as a result of a court case brought by two Canadians with disabilities who fought the right to access MAID without being excluded based on their prognosis, Dr. James Downar, a physician in the Division of Palliative Care at the University of Ottawa points out.

“Canadians are not eligible for MAID on the basis of disability alone; they must meet all the eligibility criteria, which most Canadians with disabilities do not,” Downar says. “Track 2 MAID remains an extremely rare event in Canada, whereas 27 per cent of Canadians identify as having a disability.”

He emphasizes that the reversal of MAID laws would lead to creating another injustice without addressing the real issues.

According to Downar, the impact of policies on people with disabilities and those experiencing structural vulnerabilities is the part that need to be focused on.

However, he did agree with some of the recommendations made by the UN committee about finding ways to support Canada’s disability community by focusing on key drivers of structural vulnerability and increasing support.

“If the argument is that the government should be investing and should follow through on the disability benefit and make sure it’s indexed properly, at least to make sure that we are not in a situation of legislative poverty for people with disabilities. That’s a great idea,” he said.

“We should do that, but not because of MAID. We should do it because that’s the right thing to do for people in general that will lead to better health outcomes for them. More stable food, stable housing, and further support for national pharmacare, for preventive medications, dental care, et cetera. Those are all important things to do.”