MAID should be extended to those with mental illness: report
As Canada is set to extend medical aid in dying to people who are not necessarily about to die naturally anyway, an expert panel of clinicians and ethicists is recommending the new law not exclude people whose only medical condition is a mental disorder.
“There is no reason to believe that suffering from mental disorders in some cases is not as intolerable and deserving of relief as suffering from physical disorders,” reads the new report from the Institute For Research on Public Policy, by a panel of eight professors of medicine, law, sociology, psychiatry and nursing from across Canada.
They recommend the new laws, which the federal government is considering in response to a Quebec court ruling, not exclude people who have only mental illness. The experts also suggest a new requirement be imposed that a decision to accept medical aid in dying (MAiD) be “well-considered,” which is to say “well thought out and not impulsive,” but not necessarily a “good” decision in the judgment of the assessor, and with no requirement for a settled intention to die immediately.
The report calls for clear regulatory standards for nurses and doctors, more professional training, and a federal consultation service to run for at least five years, with all cases of people without lethal conditions accepting medical aid in dying being sent to a “post hoc peer review process.”
The advice comes as a federal public consultation period recently ended, seeking guidance in advance of a full review of the MAiD law this summer. The government is considering changes to make assisted death easier for people who aren’t terminally ill, but who still want help in dying legally.
As the report notes, this issue “has landed squarely and unavoidably on the desks of Parliament,” because of a court decision last year in Quebec, in the case of Jean Truchon, 51, who has been paralyzed all his life with spastic cerebral palsy, and Nicole Gladu, 73, who has been paralyzed to varying degrees since childhood by poliomyelitis and consequent degeneration. Neither were about to die when they requested aid in dying, so both were refused.
A judge found their charter rights to life, liberty and security of the person were violated by the requirement of “reasonably foreseeable” natural death (in the Criminal Code), and being at the “end of life” (in Quebec law). That means that the requirements will no longer apply after the judge’s six-month grace period expires in March.
The Quebec decision is not binding in other provinces, but any amendments to the federal Criminal Code will be.
Both governments said they would not appeal. Quebec said it would simply let the “end of life” requirement be stripped from its law, and ask medical regulators to provide further guidance. The federal government has committed to bringing new legislation. It had already sought expert reports on how the MAiD law might apply to mature minors, people who wish to give directions in advance of losing their capacity to make decisions, and the people whose only illness is mental.
The Quebec decision marked a conceptual shift in Canada’s assisted-dying regime that has led to this urgent moment. After the ban on assisted suicide was struck down by the Supreme Court in 2015, medical aid in dying was presented politically as hastening a death from sickness that was already imminent and inevitable. But the court had allowed it in order to relieve suffering, not just in those about to die, but in anyone with a “grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
This difference in fundamental purpose has now come into conflict, and as the report notes, there is a need for more parliamentary guidance. Without it, there would be a patchwork of access in Canada, and another charter challenge would be simply a matter of time. But the questions are just as hard as they were when the legislation was first passed, such as whether it is ethical for a person with mental illness to seek assisted death, and if it is unethical in some cases, whether medicine is able to reliably tell them apart.