Lawyers seek to ‘rein in’ law group’s MAiD advocacy

Christian lawyer Lia Milousis hoped the votable resolution she and Kerri Froc submitted to the Canadian Bar Association (CBA) would convince the federal government to delay once again expanding medical assistance in dying (MAiD) to individuals solely dealing with a mental health illness. 

But now that the government has announced its intent to postpone, Milousis and Froc’s motion, if agreed upon during the CBA annual general meeting on Feb. 8, could deliver an influential signal that further expansion of MAiD should be abandoned entirely.

Milousis’ and Froc’s resolution calls upon the CBA, which represents over 38,000 lawyers, judges, notaries, law teachers and students, to execute three actions: withdraw prior statements supporting MAiD for those whose only underlying medical condition is a psychiatric condition; urge the federal government not to proceed with MAiD for people solely living with a mental illness unless and until there is a reliable method to determine if such conditions are irremediable; and implore federal, provincial and territorial organizations to prioritize advancing, developing and funding mental health support.

Milousis said this motion would essentially “correct a misinterpretation” of a position adopted at the 2016 annual general meeting in the aftermath of the Supreme Court decision that shaped Canada’s original MAiD law Bill C-14. Members agreed then that if a person would otherwise qualify for euthanasia — a person had to have a grievous, irremediable medical condition and reasonable foreseeability of natural death — they should not be barred from MAiD because they also have a psychiatric condition.

“I struggle to think that members who voted in 2016 were voting with individuals whose only underlying medical condition was mental illness in mind,” said Milousis. “Really, this was about saying if you have terminal cancer and you would otherwise qualify for medical assistance in dying and you also happen to have an anxiety order or depression, that depression should not prevent you from proceeding with this decision you have made.

“The way this resolution has been interpreted with time has been a source of deep concern for me and many of my colleagues,” continued Milousis. “What has happened with time is that the advocacy group with the Canadian Bar Association has increasingly made submissions that are supportive of medical assistance in dying where a mental illness is the sole underlying condition. Some of my colleagues and I both believe this is contrary to the Carter decision and outside the scope of the resolution.”

The authors of the 2024 resolution support their position by citing a 2018 Council of Canadian Academies report. The major finding is that there is no medical consensus regarding the irremediability of psychiatric conditions.

Another finding in the Council of Canadian Academies document cited by Milousis and Froc is that marginalized populations, including women, Indigenous communities, LGBT individuals and youth “experience or are at risk of experiencing mental disorders at disproportionate rates.”

They argue, “permitting medical assistance in dying for those whose sole underlying medical condition is a psychiatric condition would have a disproportionate, gendered impact and risks violating section 15 of the (Canadian Charter of Rights and Freedom). Section 15 of the Charter declares ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ ”

“The solution that these (marginalized) communities have repeatedly asked for are increased mental health supports” and “additional funding to help these individuals,” Milousis said, but “in the midst of that cry and desire the government is saying, ‘well, we don’t have those supports available, but we will allow you to access medical assistance in dying.’

“I find that deeply concerning and disrespectful of what folks in these communities have asked for.”

Milousis and Froc are on the CBA’s Constitutional and Human Rights Section’s executive team, which already voted to endorse the resolution. 

“Perhaps, we’ll see what happens during the AGM, the CBA has gone too far in their advocacy and we need to rein things back in on this issue and focus on what the Supreme Court said in (the Carter decision).”