Assisted dying should include people with mental illness: panel
As Canada is set to extend medical aid in dying to people who are not necessarily about to die naturally, an expert panel of clinicians and ethicists is recommending the new law not exclude people whose only condition is 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 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 ended this week, 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 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 the requirements will no longer apply after the judge’s sixmonth grace period expires in March. The Quebec decision is not binding in other provinces, but amendments to the 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.
The Quebec decision does not create a “legal vacuum,” according to the ruling by Judge Christine Baudouin. It simply undoes the one part of the Liberal government’s assisted-dying scheme that wasn’t spelled out by the Supreme Court. “As Parliament opted to enact a legislative regime essentially based on the parameters set out by the Supreme Court, with the added reasonably foreseeable natural death requirement, its unconstitutionality returns the law to the state it was in Canada following Carter (the 2015 Supreme Court case that decriminalized assisted suicide).”
The panel’s report advises against adding a requirement that decisions to seek MAID are “nonambivalent.” This is a word that was used in the trial decision in Carter, and quoted by the Supreme Court of Canada in its landmark decision, to describe a desire in the applicant that was constant and clearly thought out. But the word did not appear in the actual wording of who is accessible. It has been controversial ever since.
It refers to the case of someone who asks for MAID, is approved after the mandatory 10-day wait period imposed by the Criminal Code, but then refuses it. The panel said this can be seen as evidence of “poorly considered desire,” or on the other hand as “reflecting a desire for a backup or exit route, revealing that the option of MAID is itself a form of palliation, enabling individuals to persevere through their suffering.”
Another note of caution the panel makes is over the potential overlap between the MAID law and the rules of involuntary hospitalization, which in most provinces requires only that someone is a threat to themselves or others. The concern is that if a person in hospital requests MAID from a health-care worker, this could be taken as evidence, by itself, of a risk to the self, which would justify involuntary hospitalization, and block access to MAID.