MAID for those with a mental disorder: A deep dive into the issues of the Parliamentary Review

On March 17, 2021, Bill C-7 received Royal Assent, a huge milestone for medical assistance in dying (MAID) and end-of-life rights in Canada. With the new law in place, the next step was the Parliamentary Review committed to in the Bill. The review included eligibility for MAID of mature minors, eligibility of those with a mental disorder as the sole underlying condition, advance requests for MAID, the state of palliative care, and the protection of people living with disabilities.

As part of our mission to educate and share knowledge, we examined each issue of the Parliamentary Review in a series of blog posts. We hope to give people across Canada insight into the reason for, and importance of, each issue. We also hope you will be motivated to advocate for one or all of the issues by engaging your Member of Parliament.

In this blog post, we will discuss MAID for those with a mental disorder*.

Take action – write your MP to allow MAID for mental disorders.

Background

Bill C-7, which passed in March 2021, acknowledged that “further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness,” and limited the restriction placed on these individuals to two years, until March 2023. The Bill also mandated an independent review, carried out by experts, to consider protocols, guidance, and safeguards for MAID for people with a mental disorder. This review allowed the Government time to consider their conclusions prior to the removal of the restriction. However, on March 9, 2023, the restriction was extended until March 17, 2024.

DWDC’s position on MAID for those whose sole condition is a mental disorder

The exclusion of those with a mental disorder from accessing their constitutional right is stigmatizing and discriminatory, and requests for MAID by people whose sole condition is a mental disorder must be treated on a case-by-case basis.

Suffering caused by a mental disorder is no less real than suffering caused by a physical illness, injury, or disability. In many cases, symptoms of mental disorders are indistinguishable from those caused by a non-psychiatric medical condition.

Having a mental disorder does not necessarily mean that a person is incapable of making free and informed decisions about their care. In the Truchon case, the court concluded that physicians in Canada are able to conduct such an assessment and eliminate non-eligible patients, not because they have a psychiatric disorder, but because they do not have the capacity to decide and make this fundamental choice due to their mental condition.

In a 2023 Ipsos poll, we learned that 80% of people across Canada support access to MAID for those whose sole condition is a mental disorder.

Insight from an expert

Dr. Derryck Smith

Dr. Derryck Smith is a Vancouver based psychiatrist and past DWDC board member. We asked him to share his expert opinion on this matter.

Why do you support the inclusion of mental health conditions in the eligibility criteria for MAID?

Mental illness is like any other illness affecting individuals and we know that mental illness is in fact a disorder of the human brain. Why would we want to exclude disorders of the brain from MAID, any more than disorders of any other organ? This does not stand to reason and, in fact, would be a gross violation of the Charter of Rights and Freedom.

Persons with psychiatric illness suffer the same as those with other diseases and we should not deprive these citizens of their rights. We already know from a court case in Alberta several years ago (EF), that persons with mental illness as their sole diagnosis were eligible for MAID under rules flowing from the Carter decision of the Supreme Court of Canada. How can we separate intractable eating disorders, depression, or schizophrenia from MAID for dementia or brain cancer? These are all disorders of the brain.

Experience from the Benelux countries (Belgium, the Netherlands and Luxembourg) have shown that it is possible to enact legislation that will allow a small number of persons with psychiatric illness to sensibly access MAID.

This is a controversial aspect of the Parliamentary Review. What would you like the Canadian public to understand about mental disorders and MAID?

The controversy is that some persons, and a number of psychiatrists, believe that we should not allow MAID for psychiatric illness. By holding this position, they are further stigmatizing mental illness and requiring individuals to continue to endure their intolerable suffering. Individuals who meet all the other requirements should be allowed to access MAID. This is an individual decision made voluntarily by a competent person, in collaboration with their clinicians and after having exhausted treatment options that they deem acceptable to them. We need to respect the freely and carefully considered wishes of such Canadians.

Note from DWDC: Federal law does not compel nurse practitioners or physicians to assist a patient in dying or to refer a patient to another medical practitioner. Several provincial regulatory authorities have, however, issued guidelines that strongly encourage medical practitioners who are unwilling or unable to provide MAID to refer their patients to other institutions or providers. Others require a transfer of care or referral. In Ontario, for example, objecting providers must make an “effective referral” to an available, accessible physician or agency willing to facilitate a request for assisted dying.

What can suffering from a mental disorder look like?

As a practicing psychiatrist, I have seen the suffering of individuals with intractable mental illness. It is the same suffering that is experienced by persons with cancer, respiratory failure, and other diseases. All these people want is the ability to have control over their own lives and deaths, much the same as Sue Rodriquez famously stated, “Whose body is this? Who owns my life?”

There is no doubt that some forms of psychiatric illness are intractable and incurable. The challenge for psychiatry is now to differentiate suicidal thoughts from the decision of a competent person to access assisted dying.

Do you think through the Expert Panel and Joint Parliamentary Committee that a balanced approach to MAID for those whose underlying condition is a mental health condition can be achieved? What would that look like?

Safeguards that may be sensible to have include an assessment by a psychiatrist and a full competency assessment, if that is an issue.

It should be noted however that the Canadian Psychiatric Association has a policy statement that assumes that until proven otherwise, persons with a psychiatric disorder are presumed to be competent. Competency Assessments are not unique to psychiatric patients and should be requested on all patients seeking MAID where one of the two primary assessors has a concern in this regard.

Another reasonable safeguard would be to seek informed input from the patient’s primary care provider and/or family members.

My concern is that some parliamentarians are less interested in safeguards than they are in an absolute prohibition of MAID for person with primary psychiatric diagnoses. This process should not be used to try and reargue the whole concept of assisted dying, but rather focus on demonstrating leadership and not discrimination for people with a mental illness who wish to access MAID.

Advocate for MAID and mental disorders

Do you want to help protect the constitutional right to medical assistance in dying? Take action – write your MP to allow MAID for mental disorders.

*Medical assistance in dying (MAID) for those whose sole underlying condition is a mental disorder (MD-SUMC) includes conditions that are primarily within the domain of psychiatry, such as depression and personality disorders. It does not include neurocognitive and neurodevelopmental disorders, nor other conditions that may affect cognitive abilities. To be clear, neurocognitive disorders such as dementia, Huntington’s and Parkinson’s are not considered mental illnesses and are not included in the temporary restriction as directed in Bill C-7 in March 2021. People with neurocognitive and neurodevelopmental disorders, such as dementia, can currently qualify for MAID, if they meet all the criteria.