# introduction

Expanding Medical Assistance in Dying (MAiD) to include those suffering from a mental disorder as the sole underlying medical condition (MD-SUMC) has been hotly contested in Canada for the past several years. In the ongoing ethical debate, a common concern that is raised to caution against expansion is that those suffering from mental disorders are particularly vulnerable, and that to protect these individuals they should be excluded from accessing MAiD (1-4). Common responses to this vulnerability concern point to existing safeguards for MAiD for physical conditions where death is not reasonably foreseeable, or they argue that more stringent safeguards could be implemented to mitigate risks (5). However, while arguments based on vulnerability are common, what is meant by ‘vulnerability’, or to be vulnerable, is often ill-defined and under determined (6). This has resulted in debates where interlocutors are effectively talking past each other, each missing important aspects of the other’s argument, and often resulting in unproductive discourse. This paper aims to address this conceptual ambiguity with a goal of bringing clarity to and progress in the debate concerning MAiD for MD-SUMC.

Borrowing from and building upon the work of Lazin and Chandler, the first part of this paper highlights the integral role that the concept of vulnerability has played historically in the development of MAiD in Canada, by examining how it was employed in legal arguments (6). Next, using the work of Mackenzie, Rogers, and Dodds, a clearer definition of vulnerability is provided and defended. This clarified notion will then be applied in the context of individuals living with mental disorders who are seeking access to MAiD (7,8). Finally, after explaining the risks that arguments from vulnerability are intended to capture, it will be argued that the current common responses of pointing to current safeguards, or simply increasing safeguards to protect the vulnerable, are insufficient. These arguments focus on issues of individual capacity and conviction in pursuit of MAiD but miss the social context that is often the driving motivation for seeking MAiD in the first place.
# MAiD, Vulnerability and the Courts

MAiD in Canada has developed through a series of court challenges, the first of which was unsuccessful. In 1993 Sue Rodriguez, who suffered from amyotrophic lateral sclerosis (ALS), challenged the criminal prohibition of assisting suicide (9). A neurodegenerative disease, people suffering from ALS start with a loss of voluntary muscle control which then progresses to being unable to breathe or eat without mechanical assistance, and eventually death. In 1993, assisting another person in suicide in any capacity could result in criminal charges. Rodriguez wished to live as long as she was capable of enjoying her life; however, when she deemed her suffering to be intolerable and her life no longer worth living, she feared that she would not be able to commit suicide on her own. Hence her request to have the Criminal Code amended so that she could receive physician assisted suicide. Rodriguez challenged the criminal prohibition of assisting suicide on the grounds that it: 1) infringed upon her rights to life, liberty, and security of person (section 7 of the Charter); 2) violated her right to be free from cruel and unusual punishment (section 12); and 3) amounted to discrimination based on disability (section 15). In a 5-4 split decision, the majority of the court ruled that the outright criminal prohibition of assisting another to commit suicide was not unconstitutional, and so the law remained unchanged (9). Part of the reasoning employed to support this judgment was that section 241(b) of the Criminal Code, the outright criminal prohibition of assisting suicide, was necessary in order to achieve the legislative objective of protecting human life and dignity:

> Section 241(b) has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken
> — 9

While the majority of the Supreme Court justices recognized that Rodriguez’s rights to security of person and equality were being limited by the outright criminal prohibition of assisting suicide, the court maintained that these rights infringements were justified under section 1 of the Charter (9). The court recognized two competing values, the protection of which justified the prohibition of assisting suicide: the sanctity of life and the protection of vulnerable persons (6). So, while the court recognized that section 241(b) of the Criminal Code infringed on Rodriguez’s section 7 rights, this infringement was justified due to the government’s objectives to uphold the sanctity of life and to protect the vulnerable. Their reasoning was that the cost of Rodriguez’s right to liberty and security of person being upheld via assisted suicide would be the degradation of the sanctity of life and risk to vulnerable persons. The court specified that the criminal prohibition of assisting suicide was necessary to protect people who might be induced to commit suicide in moments of weakness, and stated that those who are terminally ill are particularly vulnerable (9). However, what it meant to be ‘vulnerable’ was not specified nor elaborated upon. Although the court recognized that it might have been acceptable for Sue Rodriguez herself to have access to assisted suicide, it was concerned about what a federal regime of allowing assisted suicide for persons like her might cause. However, the specific cause for concern is vague, beyond individuals receiving assisted suicide in moments of weakness, as seen in the identified objective of the criminal prohibition by Justice Sopinka above. As such, what it means to be vulnerable, and what these people are vulnerable to, is not entirely clear. While these facets of vulnerability are not clear, it is important to highlight how the label of ‘vulnerability’ or being ‘vulnerable’ is applied. In this case, a group of persons, the terminally ill, are being labelled as “particularly vulnerable” in the context of assisted suicide. The court then argued that the only method of sufficiently protecting those that are vulnerable due to being terminally ill was to continue the criminal prohibition of assisted suicide. In other words, the Supreme Court took the risk of physician assisted suicide to vulnerable people to be too great and argued that protection through paternalism was necessary.

In 2015, the criminal prohibition of assisting suicide again came before the Supreme Court in the case of *Carter v. Canada* (10). The criminal prohibition of assisting suicide was challenged on the grounds that it infringed upon section 7 and section 15 Charter rights. The court reiterated the objective of the Criminal Code identified in the Rodriguez case as being to protect those who are vulnerable from committing suicide in moments of weakness, although Canada argued the objective was more broadly the preservation of life, which was rejected by the court:

> The trial judge, relying on Rodriguez, concluded that the object of the prohibition was to protect vulnerable persons from being induced to commit suicide at a time of weakness (para. 1190). All the parties except Canada accept this formulation of the object
> — 10

> Canada agrees that the prohibition is intended to protect the vulnerable, but argues that the object of the prohibition should also be defined more broadly as simply “the preservation of life” (R.F., at paras 66, 108, and 109). We cannot accept this submission
> — 10

Vulnerability and the specific risk, beyond inappropriate access to assisted dying, was not specified (6). The respondent, Canada, argued that the law needed to remain unchanged in order to fulfil this objective (10). However, the Court concluded that the outright prohibition of assisting suicide was too broad, as it unjustifiably restricted the autonomy of those who were not vulnerable and forced them to either live a life of suffering or to end their lives on their own (6,10). While what is meant by vulnerable is not specified, it is frequently contrasted with autonomy in the Carter ruling, leaving the impression that those who are vulnerable are those who are unable to autonomously consent to assisted suicide. This can be seen in how the term vulnerable is used:

> Applying this approach, we conclude that the prohibition on assisted dying is overbroad. The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness. Canada conceded at trial that the law catches people outside this class: “It is recognised that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives” (trial reasons, at para. 1136). The trial judge accepted that Ms. Taylor was such a person — competent, fully informed, and free from coercion or duress (para. 16). It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective
> — 10

Instead, the court stated that vulnerability can be assessed on an individual basis through the standard informed consent and capacity assessment process that physicians apply for all treatments (6,10). The final ruling was that the criminal prohibition of assisting suicide unjustly infringed upon the rights to life, liberty and security of person in cases where an individual suffers from a grievous and irremediable medical condition that causes intolerable suffering, and who freely consents to their own death. The result of the Carter case led to the first iteration of MAiD legislation, Bill C-14.

The debates on the proposed bill, and the resulting preamble, again highlighted the importance of protecting the vulnerable, and contrasted it with promoting the autonomy of others (6). Unsurprisingly, vulnerability and the precise risk that was of concern remained unspecified (6). In order to balance the perceived competing values of protecting the vulnerable, on one hand, and respecting autonomy on the other, Bill C-14 restricted access to MAiD to those whose deaths are “reasonably foreseeable” (11). As such, despite it not being mentioned in the Carter decision, MAiD under Bill C-14 was permissible only for those who had an illness that could foreseeably cause their death.

The requirement that one’s death be reasonably foreseeable in order to access MAiD was challenged in the Quebec Superior Court. The applicants in Truchon and Gladu v. Canada (Attorney General) and Quebec (Attorney General) argued that the MAiD legislation was not consistent with the Carter ruling as it included the requirement of reasonably foreseeable death, and that this requirement infringed on their section 7 and section 15 rights (12). The analysis of section 7 infringements went similarly to the Carter case. The rights to life, liberty, and security of person were all taken to be engaged for the reasons provided in the Carter case. The prohibition of assisting the suicide of those whose death is not reasonably foreseeable limited the right to life by potentially forcing individuals to end their lives earlier than they would like while still capable of doing so themselves, and the rights to liberty and security of person because it deprived individuals with non-terminal severe disability of their bodily autonomy by preventing them from accessing a medical treatment and forcing them to continue to live a life of suffering that they do not value (12). An analysis of the provision was also conducted on section 15 right to equality. In this analysis, it was found that the requirement of reasonably foreseeable death creates a distinction based upon disability, preventing individuals who are suffering from a grievous and irremediable but non-terminal physical condition from accessing MAiD, and perpetuates prejudice and disadvantage based on physical disability. Since section 7 and 15 rights were taken to be engaged, the question then became whether these infringements were justified by the principles of fundamental justice or section 1 of the Charter.

To determine whether the infringements are justified, the objective of the provisions needs to be clearly defined. The attorney generals provided three objectives of the requirement of reasonably foreseeable death:

1. That it is important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled;
2. That suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities;
3. That vulnerable persons must be protected from being induced, in moments of weakness, to end their lives (12).

However, only the third objective of protecting vulnerable persons from being induced to end their lives was accepted. Justice Badouin recognized that while the concept of vulnerability and vulnerable persons was integral to this case, it was not defined in the legislation (6,12). As such, expert testimony was heard on the meaning of vulnerability with regard to MAiD (6). Importantly, the attorney generals argued for a conception of vulnerability that applied at a group level, with the elderly, the ill, and the disabled, as well as those who are suicidal and cannot make a free and informed choice all being labelled as vulnerable groups. In other words, if one fell into one of these groups, such as being elderly, the implication was that one would be vulnerable to being induced to accessing MAiD in a moment of weakness. As such, restricting MAiD to only those who have a reasonably foreseeable death was necessary to protect members of these groups. However, the applicants argued that vulnerability should be understood and assessed on an individual level, as any individual member of one of these groups could be capable of making personal decisions in their best interests. According to this individual application of vulnerability, an individual is vulnerable in the context of MAiD only if they do not have the capacity to consent to MAiD.

In the court’s opinion, a collective understanding of vulnerability was too broad. Instead, vulnerability should be determined at an individual level with only those who were incapable of consenting being considered vulnerable. As such, the requirement of reasonably foreseeable death was deemed to unjustly infringe upon section 7 and 15 rights, as the objective of protecting the vulnerable could be achieved through less restrictive means, such as capacity assessments conducted by physicians (12).

As a result of the Truchon and Gladu case, Bill C-7 was introduced, which changed MAiD to a two-track system depending on whether the applicant’s death is deemed reasonably foreseeable. If death was reasonably foreseeable, safeguards are lesser, including the ability to waive final consent if there is a concern that capacity will be lost between assessment and provision (13). If death is not reasonably foreseeable, the person would be subject to further safeguards, such as a minimum 90 day assessment period (13). However, Bill C-7 explicitly excluded those who sought MAiD for MD-SUMC. This limitation was “sunsetted” to be lifted after 3 years (13). Yet, despite the original date for MAiD to expand to include MD-SUMC being March of 2023, this exclusion has been continued until at least March of 2027, due to concerns that Canada was not ready for the expansion. One of the main concerns cited was the need to protect the vulnerable (14).

As can be seen, the concept of vulnerability has played an integral role in the debates surrounding MAiD, up to and including MAiD for MD-SUMC. Yet what it means to be vulnerable, and what people of concern are vulnerable to, is often not clearly defined. Furthermore, the concept of vulnerability has been applied in two different ways: at a group level by those who sought to restrict access to MAiD, and at an individual level by those who argued for expansion. In the next section, a clearer definition of vulnerability will be provided, including the precise risk that is of concern. It will be argued that the vulnerability debate continues to be so contentious due, at least in part, to the dual application of the term — whether it be to groups or individuals. Finally, I argue that the current strategy of responding to vulnerability concerns, which primarily focuses on pointing to existing safeguards, relies on the individual application of the concept of vulnerability. As such, the response often misses the ethically relevant concerns being highlighted by those who continue to argue for restricting access to MAiD. In particular, the focus on individual capacity assessments to remove those who are incapable of consenting to MAiD can miss the reasons that motivate the decision to seek access to MAiD in the first place.
# Clarifying the Notion of
        Vulnerability

What does it mean to be vulnerable? For clarity, I will be using the definition of vulnerability provided by Mackenzie, Rogers, and Dodds and apply it to MAiD (7). In a very real sense, everyone is vulnerable due to being physically embodied (7). We all require food and shelter, are susceptible to illness and injury, and need care at the beginning and ends of our lives. These physical necessities mean that all people are vulnerable to harm. However, this is not what people mean when they use the term ‘vulnerable’ because people vary in their exposure to risk and resources available to mitigate risk (7). To be vulnerable then, according to Mackenzie, Rogers, and Dodds, is to be at an increased risk of harm and/or decreased capacity to protect oneself from harm (8). It is important to note that this increased risk of harm, or decreased ability to protect oneself, is context dependent. A person could be vulnerable to harm in a particular context without being globally vulnerable. For example, consider an argument against the legality of selling blood: people that are impoverished will be compelled to sell their blood due to financial necessity (15). The concern here is that people living in poverty are uniquely vulnerable to exploitation and to donate blood when it could pose a risk to themselves in order to receive a cash payment. That is not to say, however, that people living in poverty are vulnerable (in other words at increased risk) when donating blood without financial compensation, as it comes without financial pressures. It is unlikely that a person would donate blood for free if it could potentially pose a risk to their own health. As such, one could argue that those living in poverty are uniquely vulnerable in the context of paid blood donation, but not in the case of uncompensated blood donation.

When the concept of vulnerability is applied, it is rarely just an observation, but often rather carries with it a demand for an ethical response (8). So, to be vulnerable is to be at an increased risk of harm in a particular context, and this increased risk of harm comes with an ethical responsibility of others to mitigate that risk. What then is the risk facing vulnerable people in the context of MAiD for MD-SUMC, and what does this risk require of policy makers?

In the Truchon and Gladu case, the court took the time to specify what it understood vulnerability to mean, and how it applies. It was determined that vulnerability should be applied at an individual level, and that those who are vulnerable are those individuals who lack the capacity to consent to MAiD (12). From this, the court determined that the standard informed consent process was sufficient to prevent vulnerable persons from accessing MAiD. This individual approach to vulnerability has continued to be adopted by proponents of expanding MAiD, with the addition of further safeguards and processes that were developed in the MAiD Model Practice Standard (16). This standard guides MAiD assessors and providers through the assessment process, with the aim of ensuring that only those people who meet the criteria have access. This is undoubtedly a good thing, as it promotes consistency amongst assessors and should help reduce the likelihood of individuals who do not meet eligibility criteria from gaining access. Yet, despite the new practice standard, arguments from vulnerability continue to be levied in attempts to push back against expansion. I argue that this is because the way in which the term vulnerability is applied is different, as too is the risk that they are trying to identify.

If one understands vulnerability on an individual level, and the risk to which people are vulnerable — to assent to MAiD while lacking capacity to do so — then the current process works very well. It applies the eligibility criteria: capacity, grievous and irremediable medical condition, and enduring physical or psychological suffering, and anyone who does not meet the criteria will not be permitted access to MAiD. However, the risk that is identified with current arguments from vulnerability against expansion is different and is being applied differently.

Rather than focusing on whether an individual meets the eligibility criteria for MAiD, the concern is that those living with mental disorders as a population may be subject to disproportionate pressures to access MAiD. In other words, rather than focusing on whether any one individual can meet the MAiD eligibility criteria, the focus is on the motivation for accessing MAiD in the first place. The risk then is one of individuals accessing MAiD not because they want it due to irremediable intolerable suffering, but because their needs as a group are not being met. This concern, and the argument that MAiD should not be expanded due to those suffering from mental disorders being vulnerable as a group, was made apparent by disability rights activists and disability scholars during the consultation period for Bill C-7. Briefs and testimony were presented to the House of Commons and the Senate highlighting the risks of expanding MAiD to include those with non-life-threatening disability, pointing out how those with physical disabilities are systemically vulnerable. The sources of systemic vulnerability included Canada’s long history of social disadvantage for those who live with disability, inadequate social supports such as housing and insufficient income support, and healthcare discrimination and barriers to care (17-19). The focus on systemic vulnerability that apply to an entire group is leveraged to argue that individuals living with disability should not have access to MAiD. Again, the use of the term ‘vulnerability’ here, and how it is applied, is different from the use of the concept in the relevant court cases. It is also different from the way the concept is used by those who argue for expansion and focus on individual eligibility assessments. This line of reasoning can similarly be applied to those living with MD-SUMC.

The entire population of individuals living with mental disorders are similarly considered particularly vulnerable because their mental health needs are inadequately met, and they are subject to social stigma and discrimination. Since these two sources of vulnerability are systemic, the argument is that that all members of the affected population are uniquely vulnerable.

The argument that people living with mental disorders are uniquely vulnerable due to lack of adequate access to mental healthcare and social supports, in my opinion, is the stronger of the two arguments. That there are issues with access to adequate mental health care is a broadly accepted fact and includes lack of access to mental health care in rural settings, long wait times to visit psychotherapists, and the unaffordability of some aspects of mental healthcare (20). Depending on the province’s health insurance plan, effective treatment interventions, such as cognitive behavioural therapy, may only be covered in particular settings, such as in a hospital, with therapy outside of these settings being prohibitively expensive for many. On top of this, if there are treatment centres outside of the hospital that are covered by provincial health insurance, wait times to gain access can be long. This problem applies to some prescription medications as well. If one does not have private insurance through an employer or otherwise, prescription drugs to treat one’s mental disorder may be unaffordable. Lack of access to mental healthcare is considered problematic in the context of permitting access to MAiD because of the requirement that one suffers from a grievous and irremediable medical condition (19). This naturally raises the question: if one has not received adequate treatment, then how can their condition be considered irremediable?

Jocelyn Downie, echoing a common response in a recent Senate Committee Report, argued that individuals without a demonstrable history of failed treatment attempts would not be eligible for MAiD (14). As such, if someone did not receive adequate mental health care, while this may be tragic, they would not be eligible for MAiD. However, this does not necessarily appear to be the case according to the MAiD Model Practice Standard. The MAiD practice standard provides guidance on determining irremediability. However, in an effort to not make the error of being too restrictive, the current MAiD standard allows for a fair amount of space for judgement on behalf of the assessor. The following definitions of incurable and irreversible are provided:

> 9.5.2 ‘Incurable’ means there are no reasonable treatments remaining where reasonable is determined by the clinician and person together exploring the recognized, available, and potentially effective treatments in light of the person’s overall state of health, beliefs, values, and goals of care
> — 16

> 9.6.4 ‘Irreversible’ means there are no reasonable interventions remaining where reasonable is determined by the clinician and person together exploring the recognized, available, and potentially effective interventions in light of the person’s overall state of health, beliefs, values, and goals of care
> — 16

Note that there are no specifics in terms of number of treatment attempts, whether specific standard treatment interventions have been undertaken, or the length of time one has had the condition (21). As such, while some may claim that individuals who have not received adequate care will not be eligible, this may not be true (21,22). Rather, the assessment relies on a determination of what is reasonable, made between assessor(s) and individuals. If one cannot afford potentially efficacious treatment interventions, and so does not undergo them, is that reasonable? If one lives in a rural area and has neither the money nor the time to commute to an urban area for mental health care, is that reasonable? What is being highlighted here is that if systemic barriers to accessing care exist, then not accessing care due to these barriers could presumably be considered reasonable, and therefore an individual who has not accessed standard mental healthcare could potentially access MAiD. This argument may seem convoluted, but what it is intended to highlight is a systemic vulnerability faced by people living with mental disorders. If it is more difficult to access mental healthcare, then it is more likely for people living with mental disorders to have what appears to be an irremediable condition that causes intolerable suffering as it is more difficult to access the means of alleviating it. As such, the argument is that individuals living with mental disorders are at a greater risk of accessing MAiD. This greater risk is due to unmet needs and is greater than the general population. According to this line of reasoning, those living with mental disorders are uniquely vulnerable in the context of MAiD and so should be prohibited from accessing MAiD for their own safety.

The other main argument as to why those living with mental disorders are uniquely vulnerable in the context of MAiD is due to pervasive and historic stigma and discrimination. This argument is more difficult to pin down as it is more speculative due to being difficult to prove the link between social stigma towards those living with mental disorders and a potentially increased chance of accessing MAiD. Stigma and discrimination towards people living with mental disorders is well documented and researched (20,22-24). The concern is that this pervasive stigma will disproportionately influence individuals living with mental disorders to access MAiD when other treatment interventions or social supports would alleviate suffering, and as such, people living with mental disorders are uniquely vulnerable (24). Discrimination and stigma can affect people living with mental disorders in a variety of ways, yet arguably the most relevant in the context of MAiD is how stigma can affect the person’s willingness to pursue and continue care, the value they place on themselves, and the perceived efficacy of treatment interventions (22). Socially embedded stigma and stereotypes send conflicting and problematic messages to people living with mental disorders. On the one hand, there can be a denial of the seriousness of mental disorders, with there being a perception that some instances of mental disorders are fabricated for attention, not particularly harmful or debilitating, and as such do not require treatment (22). On the other hand, people suffering from mental disorders can be seen as ‘insane’, suffering from so severe a mental disorder that they are unable to capably make their own decisions. These stereotypes constitute what is known as ‘public stigma’, which is the negative perception of a group by the general public. When pervasive stigma exists, it can become internalized by individuals within a stigmatized group, which is known as self-stigma (20,22). This self-stigma in the case of individuals suffering from mental disorders has been shown to negatively affect the rate at which care is sought, adhered to, and believed to be effective. Internalized negative beliefs can erode self-trust and self-worth, which in turn affects mental healthcare. If one does not believe that their life has value, or that their condition is treatable, they are less likely to seek out or continue care (23).

Since there is fairly strong evidence showing the impact of stigma on perceived self-worth and self-trust of individuals living with mental disorders, and how this in turn affects propensity to access mental healthcare, the concern in the context of MAiD for MD-SUMC is two-fold: first, permitting MAiD for MD-SUMC reinforces negative stereotypes, and second, self-stigma could lead to disproportionate seeking of MAiD by those suffering from mental disorders. In regard to the first concern, the argument is that by permitting access to MAiD for MD-SUMC, perceptions of hopelessness are reinforced and the value of the lives of individuals living with mental disorders are undermined (25,26). If one accepts that MAiD should be available for those suffering from MD-SUMC, this must come with the belief that mental disorders are, at least in some instances, irremediable. This recognition could reinforce beliefs in the futility of mental healthcare. Permitting MAiD for MD-SUMC may also, even if it is not intentional, send the message that the lives of people who are mentally ill are not worth living, or not worth protecting (25,26). As such, permitting MAiD for MD-SUMC in the first place may perpetuate stigma that already exists.

Even if one does not believe that expanding MAiD would reinforce harmful stigma, it is clear that stigma towards those who live with mental disorders exists (21-23). This stigma, as demonstrated above, can have a measurable impact on the mental healthcare pursued, and received, by those living with mental disorders (22). The second concern is that the effect of stigma on self-worth and propensity to seek care may cause individuals suffering from mental disorders to disproportionately request MAiD due to not adequately accessing care or internalizing disvalue of their own lives, thus rendering them vulnerable in the context of MAiD. There is evidence that higher self-stigma is correlated to increased suicide rate (21). Therefore, stigmatized persons living with mental disorders may also be more likely to seek access to MAiD. On top of this, self-imposed barriers to care due to self-stigma may function similarly to systemic barriers, where individuals who have not received adequate mental healthcare may nonetheless seek out and potentially access MAiD.
# Conclusion

Two broad arguments as to why people living with mental disorders are particularly vulnerable in the context of MAiD have been outlined. Notably, these arguments rely on a notion of vulnerability that is different from the vulnerability identified in the Truchon decision. The risk identified, rather than being that a person may access MAiD who cannot meet informed consent requirements, is that there may be greater pressures on those living with mental disorders to access MAiD due to impaired access to treatment and stigma affecting self-worth. This vulnerability is applied to the group as a whole: since the source of these pressures are systemic and social, all people who are mentally disordered can be affected. As such, everyone who lives with a mental disorder is vulnerable in the context of MAiD and should be protected by exclusion. Proponents of expansion, however, argue that rather than excluding those living with MD-SUMC from accessing MAiD, implementing safeguards and careful individual assessments are sufficient for ameliorating risk. However, to focus on whether an individual meets eligibility criteria misses the critique being raised by those making arguments from social or group vulnerability. The concern is not that some individuals will access MAiD who are ineligible, but rather that people living with mental disorders will choose to access MAiD due to unmet needs, with the implicit assumption that if these needs were met, these individuals would not access MAiD.

This difference in understanding and application of the concept of vulnerability invariably leads to difference in opinion as to how we ought to respond ethically. If the risk of concern is believed to be ineligible individuals accessing MAiD, then standardizing and enforcing assessments is an adequate response. Yet if the risk of concern is systemic and focused on the underlying reasons for seeking out MAiD in the first place, ensuring that individuals seeking MAiD meet eligibility criteria entirely misses the concern. As such, the vulnerability debate continues to rage on, with opposing groups applying and using vulnerability in different ways, leading to different strategies of addressing said vulnerability.

Vulnerability is a concept oft used in the debates surrounding MAiD in its various forms. However, it is often ill-defined and under determined and used in myriad ways. Vulnerability is to be at an increased risk of harm or decreased ability to protect oneself from harm (8). Vulnerability in the context of MAiD for MD-SUMC is used in different ways depending on if one is arguing for expansion or exclusion, leading to interlocutors effectively talking past each other. The court stated that vulnerability should be understood on an individual level, with the solution to vulnerability being careful application of assessment criteria. This does little to address the broader concern that individuals living with mental disorders may experience systemic pressures to access MAiD in the first place. Unless or until arguments for expanding MAiD seriously contend with the social and systemic sources of risk for individuals with MD-SUMC accessing MAiD, vulnerability arguments will continue to be raised.

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