Should someone with depression be assisted in ending their life? It’s a question that many in health care are currently wrestling with. And it’s not a hypothetical one.
The February 2015 Supreme Court of Canada ruling on physician-assisted death – known as the Carter decision – opens the door for people with mental health conditions to request physician-assisted death. The Court noted those with “grievous and irremediable” medical conditions that cause suffering that is “intolerable” and “enduring” should be able to access physician-assisted death. This suffering could be physical or psychological, according to the Carter decision. However, the individual must still be determined as cognitively “competent” to comprehend the numerous factors involved in a request to die.
Last week, the Court gave federal lawmakers a new deadline of June 6 after which the Criminal Code prohibitions on physician-assisted dying will no longer be in force when it comes to individuals who meet the Court’s criteria. The Court also made it clear that the Criminal Code prohibitions are already invalid in Quebec, as the province has already passed legislation to regulate “medical aid in dying.”
The possibility that psychiatrists – who make great efforts to prevent suicide among patients – could be called upon to essentially facilitate a psychiatric patient’s wish for death is leading to much concern, says Sonu Gaind, president of the Canadian Psychiatric Association. “Our members are wanting some guidance,” he says.
“Nobody [in the psychiatric community] has taken a serious run at the mental health questions,” says Phil Klassen, vice-president of medical affairs at Ontario Shores Centre for Mental Health Sciences.
Sandra Martin, a journalist at the Globe and Mail, has researched assisted death practices in countries around the world for a book that will be published in April. One of the key questions for Canada, she says, is how doctors and lawmakers define what is irremediable – or without remedy – when it comes to mental health conditions. “With cancer, you know there’s an end in sight. With a psychological condition, there’s always a thought that maybe a miracle cure will come along,” she says.
Physician-assisted death and mental health conditions: The international picture
Before wading into the ethically complicated questions, it’s important to mention that other countries – Belgium, The Netherlands, Switzerland and Luxembourg – allow access to physician-assisted death on mental health grounds.
Belgium is widely seen as the most permissive jurisdiction when it comes to assisted dying for people with mental health disorders, says Martin. One study followed 100 Belgian patients who made assisted dying requests as a result of mental suffering. The study found most had depression, followed by personality disorders. But patients with anxiety disorders, schizophrenia, Asperger’s and other conditions also applied. (The study noted that around half of the requests were granted, but the diagnoses involved in the accepted applications were not disclosed.)
Other countries have stricter procedures. In Switzerland, for example, a consulting psychiatrist must determine that the wish to end one’s life is not a result of perceptual changes that mental disorders can cause, but is “self-determined.”
In all jurisdictions that allow mental health diagnoses as grounds for assisted dying, very few patients with only psychological suffering die with physician assistance. They represent less than 1% of the successful applications, explains Jennifer Gibson, who examined international data as co-chair of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying. That could be because so few people with mental health issues request physician assistance in death or “because the psychiatric illness prevented the individual from being viewed as sufficiently competent to make the decision,” she says.
In other jurisdictions, including several U.S. states and the country of Colombia, psychological suffering doesn’t make one eligible for assisted suicide; there, people must have a terminal condition.
Doctors divided on the use of assisted death for psychological suffering
In her stakeholder meetings with psychiatrists as part of the Expert Advisory Group, Gibson says that while many in the psychiatric community are waiting for more legal clarification before adopting a position, some are already for or against assisted dying for their patients. “Some will be adamantly opposed to this and say, ‘Our job is to prevent suicide,’” she says. “On the other hand, I’ve heard from psychiatrists who say, ‘There are one or two cases in my years of clinical practice that have haunted me.’” For those extremely rare cases, the psychiatrists think that assisted death could be seen as reasoned to alleviate intolerable suffering, Gibson explains.
One of the key arguments for allowing assisted death for people with mental health disorders relates to fairness. The Supreme Court didn’t make ‘terminal’ a criteria for accessing physician-assisted death. So it would be discriminatory to allow physician-assisted death for those with non-terminal physical conditions but to bar it for those with non-terminal psychological conditions, the argument goes. As Martin puts it, “psychological suffering can be just as real as physical suffering.”
Gibson encapsulates this view. She doesn’t agree with an overt ban on assisted death for people with psychological suffering because “that’s saying a person with a mental health diagnosis doesn’t have the same right as a person with a physical health condition,” she explains.
Klassen adds that psychiatrists have been encouraged to adopt a care approach known as recovery – and this philosophy could be interpreted as suggesting it’s not the place of psychiatrists to prevent patients from accessing assisted death. “Recovery has words in it like hope and empowerment but at the end of day, it’s about patients determining their future, and that future being facilitated, not directed, by mental-health professionals.”
Others in the medical community are not comfortable with people with mental health disorders accessing physician assisted dying.
“There are often long waits for psychiatric referral and care,” says Romayne Gallagher, a palliative care doctor in Vancouver. “I would hate for someone to not get proper treatment and feel like there is really no other way to relieve themselves of the suffering but to consider physician-assisted death.”
One doctor who wished to remain anonymous argued doctors and patients can never be certain that a mental health condition won’t improve. “There are many cases of people being suicidal for months or even years, and they regret their suicidal thoughts,” he says.
Meanwhile, it’s psychiatrists’ jobs to prevent suicide in their patients in mental health crises. It doesn’t make sense to “admit one group of depressed patients who have attempted suicide to hospital against their will to stop them from harming themselves” while assisting another group of depressed patients in ending their lives, the doctor explains.
As chair of the Ontario Hospital Association’s Task Force on suicide prevention, psychiatrist Ian Dawe is acutely aware of the suicide prevention versus suicide facilitation conundrum. “The irony of working on suicide prevention while at the same time debating the appropriate approach to physician-assisted dying is not lost on me,” he says.
But Dawe sees a difference between “impulsive, aggressive” suicide, where people are responding to “acute episodes” of depression or substance dependence, for example, and wishes to end one’s life that are reasoned and consistent over time. “We don’t want to take a look at this from a sense of all or nothing,” says Dawe. “This isn’t a black and white issue.”
Of course, many concerns doctors have about physician-assisted death apply to both those with physical and psychological suffering alike, points out Gallagher. These include concerns about whether someone might be unduly influenced by family or whether someone is making a decision because they don’t have access to better care. Many doctors disagree with physician-assisted death in general.
Special considerations in assisted dying and psychiatric disorders
Currently, the CPA is preparing guidance for members on key issues that must be taken into account when considering what the legal terms like irremediable, intolerable, enduring, and capacity mean in the context of mental illness.
With regards to mental capacity, psychiatrists already decide whether patients with mental health conditions are cognitively aware of the implications of major decisions, such as refusing a treatment for cancer. And tools and processes are in place to help doctors when they’re unsure – in Ontario, doctors can refer a case to the Consent and Capacity board, for example.
In mental health conditions and assisted dying, the job of those deciding on consent will be to tease out an individual’s genuine thoughts from thoughts that may be a result of their disease. The “cognitive distortions” that come along with depression – “negative expectations of the future” and “loss of hope,” for example – could be seen as interfering with a patient’s autonomy, says Gaind, and could mean a person doesn’t have the capacity to decide to terminate their life. But Gaind is quick to add that there likely will be cases where patients with depression or other mental disorders are determined to have such capacity. “I wouldn’t want this to be misperceived as saying that the presence of mental illness alone means you can’t make this kind of decision. That’s not the case,” he says.
In some cases, however, “it would be virtually impossible to know for sure” whether a patient with a mental health condition is making decisions because of cognitive distortions caused by their disease or not, says Gaind. “We’d have to figure out what we do in that situation,” he says.
Dawe adds that it will be important that anyone who is making a request for assisted dying “show consistency with regards to that request over a reasonable period of time.” While Dawe was unwilling to attach a timeframe to what a reasonable period would be, he explained that if a person had depression that had changed in severity in the past, it would be prudent for doctors to ensure the patient had the same request when their depression was in an improved state.
When it comes to “irremediable,” meanwhile, there are many unanswered questions. “Will it be [the patient’s definition of] the end of the line or [the doctor’s definition of] end of line that wins the day?” asks Klassen.
Gaind thinks that “irremediable” should not simply be defined medically. Because many mental health conditions are influenced by societal factors, if a person’s condition could be helped with housing support or a path to employment, it shouldn’t be seen as irremediable, Gaind argues. “Society cannot wash its hands of that responsibility [to remedy a person’s suffering].”
However terms like “intolerable” and “irremediable” are further defined in the coming months, Martin hopes the debates lead to a better understanding of severe mental health disorders. “What would I do if I had unrelenting depression for 15 to 20 years?” she asks. “If you haven’t had a mental health illness like that, I think it must be very difficult to imagine it.”
Special thanks to Jocelyn Downie for her assistance in summarizing the Carter case.