Imagine a 70-year-old woman who has suffered from major depressive and post-traumatic stress disorders since she was 18. Imagine she has tried more than 35 different treatments, without success. Imagine she has made 30 suicide attempts, many serious enough to land her in hospital. Should this otherwise healthy woman, who we’ll call “C,” be allowed to apply for a medically assisted death?
C’s story is fictional, but it is inspired by real cases. It was featured in the final report of an expert panel appointed by the federal government to make recommendations on how Canada can safely expand its assisted-dying regime to include patients whose sole illness is a mental disorder.
The panel’s report, released in May, doesn’t say whether C should be eligible for assisted death, and that omission hints at the impossible choices ahead for psychiatrists after March 17, 2023. On that date, Canada’s assisted-dying law is scheduled to open to requests like C’s, making this country’s euthanasia law one of the world’s most permissive.
How did Canada get here? The winding road to medical aid in dying, or MAID, for mental disorders began in 2015, when the Supreme Court of Canada struck down Criminal Code provisions outlawing assisted suicide.
The Trudeau government responded with a bill that set the terms for physician-assisted death. To qualify, patients had to suffer from a “grievous and irremediable illness,” which the government further defined as meaning that natural death had to be “reasonably foreseeable.”
In 2019, a Quebec Superior Court judge struck down the “reasonably foreseeable” standard (and a similar provision in Quebec’s MAID law) as unconstitutional, in a case brought by two Quebeckers with incurable degenerative illnesses whose deaths weren’t imminent. The Trudeau government did not appeal – a bad call – and instead brought federal legislation in line with the view of one Quebec judge.
Parliament amended the MAID law to create two tracks, one for applicants whose deaths are reasonably foreseeable, and a second, with enhanced safeguards including a 90-day waiting period, for those whose deaths are not. Of 10,064 assisted deaths last year, 219, or 2.2 per cent, followed track two.
Track two would have been open to patients whose only illness is mental, but Parliament excluded applications of that kind for two years to allow for further study. The exception expires next March; a joint committee of the House and Senate has until October to report on the issue.
Some aspects of evaluating MAID requests for patients with mental disorders (the psychiatric profession’s preferred term) are more straightforward than you might think. Doctors are well-versed in determining whether people with mental disorders are capable of making high-stakes medical decisions. Major depressive disorder doesn’t preclude patients from refusing life-sustaining dialysis or requesting MAID for terminal cancer. A much harder question is whether severe mental disorders can ever be considered “irremediable,” as the law requires. To meet that test, the illness must be incurable and the patient must be in an advanced state of irreversible decline and intolerable suffering.
How many different treatments must patients like C try before their disorders are deemed incurable and irreversible? Might future therapies succeed for disadvantaged patients if they’re helped off the streets, given housing and a stable income? Can doctors ever say that psychiatric patients have no hope of getting better?
Supporters of MAID for mental disorders argue the same uncertainly exists for some physical illnesses that fall under track two, such as chronic pain, Crohn’s disease, and epilepsy. That’s a good argument for revisiting track two, not for expanding eligibility to mental disorders.
Backers also say Canadian doctors are sure to tread carefully, much like their Dutch counterparts, who reject more than 90 per cent of euthanasia applications for psychiatric suffering. Such cases have increased in the Netherlands nonetheless, to 88 in 2020 from two in 2010.
As psychiatrist John Maher put it to the Parliamentary committee, “the rallying cry is autonomy at all costs. But the inescapable cost is people dying who would get better. What number of mistaken guesses is acceptable to you?”
For a Quebec government committee studying the issue, the answer is zero. Last December it recommended that provincial law continue to prohibit MAID solely for psychiatric suffering. It’s not too late for Ottawa to do the same.
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