Dying with Dignity Canada, John Scully, Claire Elyse Brosseau and law firm Paliare Roland filed an application in Ontario Superior Court on Monday challenging the Canadian government’s exclusion of individuals with mental disorders from accessing medical assistance in dying (MAiD), on the basis that it is discriminatory.

The case is spearheaded by John Scully, who is a former war correspondent suffering from chronic mental health issues including post-traumatic stress disorder, depression and anxiety. Together, the plaintiffs argue that the exclusion of mental disorders from the MAiD eligibility criteria violates Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. The plaintiffs also argue that such an exclusion infringes upon their liberty to make deeply personal decisions about their own lives and that individuals with severe and incurable mental disorders are deprived of their security and forced to endure prolonged suffering.

Helen Long, CEO of Dying With Dignity Canada, said:

This lawsuit is an important step in recognizing that people with a mental illness deserve the same respect, access to medical services, choice, and dignity as all other people across Canada. Some individuals with mental illness experience enduring and intolerable suffering, and that suffering needs to be recognized as equally devastating as physical suffering. We have processes to determine whether a person is capable of making fundamental life decisions; all capable adults must be respected in their decisions and their choices honoured.

The federal government has expressed much concern in the past about allowing clinicians to assess the eligibility of individuals with mental disorders for MAiD. An expert panel emphasized the need for rigorous safeguards to ensure that individuals seeking MAiD due to mental disorders are making informed and voluntary decisions and also highlighted the importance of assessing the incurability and irreversibility of mental illnesses per established professional norms.

This legal challenge raises questions about the balance between protecting vulnerable individuals and respecting personal autonomy. If successful, it may lead to an expansion of the eligibility criteria, potentially aligning Canada’s laws with other countries like the Netherlands and Belgium, where assisted dying for mental disorders is permitted.

This comes in the wake of the 2015 Supreme Court of Canada decision in Carter v. Canada which invalidated sections of the Criminal Code that prohibited physician-assisted death, recognizing the right of competent adults with grievous and irremediable medical conditions to seek assistance in dying. In June 2016, the federal government’s bill C-14 received royal assent, amending the Criminal Code to allow for medical assistance in dying based on certain eligible criteria.