Dr. David Amies: Exploring assisted dying for individuals whose sole underlying medical condition is a mental disorder

In his penultimate post for the DWDC blog, Dr. David Amies examines the Council of Canadian Academies’ report on the possible implications of extending assisted dying access to individuals whose sole underlying medical condition is psychiatric in nature.

It is safe to say there has been some discussion about the fairness of Canada’s medical assistance in dying (MAID) law. For example, as it stands, the law renders it difficult for anyone whose illness is purely psychiatric to qualify for a medically assisted death.

Canadian Parliament, in passing the MAID law in June 2016, undertook to dive deeper into issues surrounding assisted dying to determine whether any changes to the law should be enacted. Consequently, the federal government asked the Council of Canadian Academies (CCA) — a non-partisan think tank — to study the future of assisted dying in Canada.

In its studies, the CCA examined three groups of Canadians who are generally excluded from accessing MAID: mature minors, people whose primary underlying medical condition is a mental illness, and individuals whose right to a peaceful death is out of reach because of the ban on advance requests for assisted dying.

In December 2018, the CCA published its long and comprehensive reports. It is the report on MAID for individuals whose sole underlying medical condition is a mental disorder that I wish to address in this piece. Please note that the CCA was told not to make recommendations and it has not done so.

To begin, the panel pointed out that the Justice Minister and the Attorney-General of Canada used the term mental illness, whereas the panel chose to use mental disorder in order to be consistent with current clinical and legal practice. This latter term covers a wide variety of conditions with definite clinical profiles and causes. They also chose to expand the term MAID (medical assistance in dying) to MAID MD-SUMC (medical assistance in dying where a mental disorder is the sole underlying medical condition).

The CCA’s report on psychiatric illnesses was characterized by the panel’s inability to agree on many things. It is hard to say whether there was a majority view on the advisability of widening the scope of the law as it exists at present. The panel did, however, agree that people with mental disorders have a long history of facing stigma and discrimination. They also acknowledged that the lives of those with mental disorders have often been viewed as less valuable than those without.

There were five key areas of disagreement among the working group concerning MAID MD-SUMC, and I shall quote more or less directly from their report:

Firstly, it disagreed about balancing two risks: ending the life of a person with a mental disorder whose condition would have improved and who would have regained the desire to live, and denying MAID to someone who would not have improved and who would have to live on with intolerable suffering.

Secondly, some of the group considered there to be a fundamental difference between MAID where death is reasonably foreseeable (e.g. cancer) and most cases of MAID MD-SUMC, where death is not reasonably foreseeable. The panel saw the first instance being about changing the manner and timing of death and the second being about death that is brought about for those likely to have many years of life left. Others were uncertain that the distinction amounts to a fundamental ethical difference that justifies a different approach to MAID MD-SUMC.

Thirdly, they disagreed on whether it is possible to know how to distinguish between individuals who have made an autonomous, well-considered decision to employ MAID MD-SUMC and those whose desire to die represents a symptom of their mental disorder.

Fourthly, they disagreed on whether permitting MAID MD-SUMC would or would not adversely affect suicide prevention strategies.

Fifthly, they could not agree on whether decisions about MAID are different from other important decisions (e.g. refusing life-sustaining treatment). Are there ethical and practical distinctions between medical professionals actively ending someone’s life or allowing them to die through non-intervention?

In general, the working group considered that all adults, including those with mental disorders, are presumed to have the legal capacity to make important medical decisions about themselves. Evidence does, however, reveal that some psychiatric illnesses impair decision-making abilities and that different assessors may disagree about whether or not a particular person possesses this ability. Furthermore, in those requesting MAID MD-SUMC, their desire to end their lives may be a symptom of their mental state and it can be difficult for attending health professionals to make this distinction.

A challenging issue

The current law requires that those seeking to die with medical assistance be suffering from a “grievous and irremediable” condition. There is disagreement among clinicians about when, and if, mental disorders can be considered to be incurable. That is seldom the case when people are suffering from physical maladies. There is, on the other hand, little doubt that mental disorders can produce lasting and intolerable suffering. In most cases, death is unlikely to be “reasonably foreseeable” as is required by the current law.

• Related: Is it right to forbid mature minors access to assisted dying?

Since mental disorders can affect decision-making processes, there are questions that a request for MAID may just be a symptom of the disease which might go away with further treatment.  A person whose sole underlying medical condition is a serious mental disorder is unlikely to have a natural death that is “reasonably foreseeable.” That means that some individuals who are suffering grievously from a treatment-resistant mental disorder may be condemned to suffer for years or even decades.

The panel also considered the issue of suicide. Many reviews and analyses of evidence find that as many as 90 per cent of those who die by suicide may have had a psychiatric disorder. International research has shown that those who seek psychiatric euthanasia, in countries where it is allowed, share several common characteristics with those who attempt suicide. Members of the panel expressed different views about the relationship between MAID MD-SUMC and suicide, and wondered if it is possible to distinguish between the two. International experience of psychiatric euthanasia was exhaustively analyzed by the panel. They found that most seeking it suffered from depression. (It’s also important to note that the panel acknowledged that psychiatric euthanasia is practiced in very few jurisdictions and the knowledge base surrounding the practice is still quite scant.)

The last part of the panel’s report dealt with a number of general, even philosophical, issues surrounding persons with mental disorders. Topics included an individual’s vulnerability and autonomy; the stigma attached to those with such disorders; and the discrimination they face (for instance, people with physical conditions can qualify for MAID, while those with purely mental disorders cannot). The panel noted that many mental health-care practitioners in Canada were uneasy about MAID MD-SUMC. There were concerns that expanding access to MAID MD-SUMC would have a negative influence on the therapeutic relationship between mental health practitioners and those with mental health disorders.

Dr. David Amies

In summary, therefore, both the medical community and the public are faced with some special quandaries when considering whether or not Canada’s present law on MAID should or should not be widened to include those who are suffering solely from a mental disorder. Such illnesses are by their very nature less tangible than purely physical ones. There are usually no available laboratory tests available to assess them. Likewise, medical imaging is unhelpful. It is not possible to do biopsies. There is nothing to feel with a physical examination. All of these factors are in contrast to physical maladies where the progress of the disease can be minutely monitored by such measures.

Canada’s law on medically assisted dying has been in place for more than three years. I am sure that those who devised it, after the Supreme Court’s Carter decision, did not consider that it would be the final statement on the matter. Surely, they expected the law to be fine-tuned in the light of experience once it was enacted. Our experience during the last three years has shown how it has worked well in many instances and where it has fallen short in some others.

Our legislators now have the task of carefully reviewing the thoughtful reports that have emerged from the work of the CCA and deciding whether or not to make significant changes to the law. In my view, several more years will pass before the ideal position about MAID will be achieved.

Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWDC’s Clinicians Advisory Council.