The right to die: Should MAiD apply to those whose sole condition is mental illness?

“I’ve been involved with two cases where MAiD has been provided for patients with a psychiatric diagnosis. Psychiatric illness is a medical condition caused by a dysfunction of the human brain. In my opinion, it would be a gross violation of the Charter of Rights and Freedoms to not allow MAiD for appropriately qualified patients who have psychiatric illness. The original Carter decision (Carter vs Canada, Supreme Court of Canada, 2015), held that the prohibition of assisted suicide was a violation of Charter rights.

Since 2015, the Liberal government has been trying to narrow the scope of MAiD, the first instance being Bill C-14, where it inserted the words “where natural death must be reasonably foreseeable.” This was an attempt to disallow MAiD for psychiatric patients because psychiatric illness doesn’t usually result in death. Bill C-14 is an amendment to the Criminal Code; it’s not health-care legislation. If a doctor performed MAiD on a patient inappropriately, it would result in a potential murder charge. As a result, doctors have been reluctant to provide MAiD for patients with a sole psychiatric diagnosis.

In the 2020 Jean Truchon case in Quebec, the court struck down the clause “a patient’s natural death must be reasonably foreseeable” for a man seeking MAiD for his advanced cerebral palsy. That’s why MAiD ended up back in the political arena.

We know the public is strongly in favour of MAiD and doctor’s attitudes have changed over time. I remember when the Canadian Medical Association was initially not in favour of MAiD for any reason. Now it has changed its position.

Many psychiatrists are opposed to MAiD for a mental disorder. There is no doubt that this is a controversial area. I’m not concerned, however, about what doctors think about MAiD. This is a Charter right for patients. It’s what the courts have decided is appropriate for competent persons with psychiatric illness who have irremediable conditions and who are suffering.

It is important however, to ensure that MAiD is a free and voluntary request by any patient, and that no doctors are coerced into providing MAiD if they have opposing moral or religious values.”

“In some ways, the challenge is ‘Can we tailor a set of eligibility criteria and safeguards that address the case of an individual whose sole underlying condition is mental illness?’ But I think there’s also the question of ‘What are the ramifications for patients with mental illness more generally?’ What are the implications for our health-care system, which is failing in many respects to address the needs of people with psychiatric disorders?

The expert panel report is significant because there’s only so much you can do with criminal law alone. The set of recommendations is a good thing because, especially when it comes to health, criminal law just doesn’t have the level of detail required. I think having an expansive set of policies and priorities – like new protocols, education and training – will be equally if not more important than any kind of formal change in criminal law.

But if there’s recognition that individuals whose sole underlying medical condition is mental illness should have access to MAiD, I think that there has to be more than lip service paid to ensuring that there is an improvement to mental-health care and economic and social support for those people.

Exclusive focus on statutory eligibility criteria risks impoverishing a larger, very urgent policy discussion around how to support and facilitate autonomy of individuals with severe psychiatric mental-health challenges.

What I would hope to see in terms of the unfolding of this debate on a political level is to see a broad base of consultation – things like consultation with Indigenous communities, consultation with mental health patients and providers alike. There needs to be communication and coordination across federal, provincial, territorial and municipal levels of government. A well thought-out legal framework is crucial, absolutely. At the same time, ensuring economic, social and mental health support for the people who we’ll be considering requires more than that.”

“For me, the answer (to whether mental illness should be a sole underlying qualification) is no. I’m a psychologist and a university professor on mental health. I also have a mental illness – bipolar disorder – and I’ve been living with mental illness for 20 years.

We just don’t know enough about mental illness and how it evolves over time. There is recovery, but it’s not a linear path. With mental illness, there are ups and downs and, of course, the downs can be so down that you could feel like there’s no other option than asking for MAiD. The fact is that MAiD for mental illness is too close for comfort to suicide and mental illness. This makes it even more ethically dubious: How can you differentiate between the person who says ‘I’m suffering, I want to die’ and the person who says ‘I’m suffering, please help me die’?

When we’re talking about offering MAiD to people who are mentally ill using the pretext of ‘Well, if we don’t, it will be discriminatory,’ is also ludicrous. We’re discriminated against every day of our lives. We’re stigmatized and marginalized in different ways, some ways more subtle than others. Under normal circumstances, our discrimination is rarely talked about – it’s not even addressed. But all of a sudden, discrimination when facing death is an issue.

The message that they’re sending is basically that we are disposable beings. They’re saying, ‘You don’t have to kill yourself, we’re offering you the option to end your life for you.’

A person may feel like ‘I’m suffering, I’m not doing well, I can’t get a job.’ But there are a whole bunch of social determinants of mental health that impact a person – stigmatization, for example, is still a big issue. If you have a mental illness and you declare it in being interviewed for a job, you probably aren’t going to get hired.

The fact remains that it’s also very difficult to get access to mental-health services in Canada or get the right diagnosis. It took me 20 years, and only last year was I finally correctly diagnosed with bipolar disorder.

We don’t know enough about mental illness and what treatments work. And the things we know do work, many people don’t have access to. Psychotherapy is key. But you have to be able to afford it because in the public network it is extremely difficult to access. Mental-health promotion and prevention also is not funded enough to help people before they develop mental illnesses.

These social factors are set aside to make mental illness an individual problem. There’s injustice here and we’re giving up on people with mental illness instead of focusing on what we can do to help them live better lives. We’re giving them an out that is not right. Before offering MAiD as an option, we should make sure that everything else has been put into place and everyone has access to appropriate care.”

“There are good ethical reasons for giving (patients with intractable severe mental illnesses) access to MAiD: A good society ought to respect and support autonomous patients’ decision to request MAiD based on their own considered views about their experienced quality of life in so far as their suffering is caused by an intractable medical condition at the time of decision-making.

Unlike what many anti-choice activist academics want us to believe, intractable psychiatric illnesses do exist, and they do cause suffering comparable to some of the worst suffering caused by other illnesses that today would make such patients eligible for MAiD.

There is an argument to be addressed that goes along the lines that if we provided better health care (and other) services to people with mental illnesses, most or all of their MAiD requests would not occur. Unquestionably the state of mental health care services in our country, as in many other countries, is dismal. Nothing follows from that for the question of whether people with mental illnesses should be able to access MAiD. After all, the same is true for other illnesses and palliative care.

Access to palliative care will probably never be perfect, but how would patients with an intractable disease condition, who suffer intolerably, be better off if their agency and ability to access MAiD was removed on account of that? We have seen significant investments in palliative-care provision across the country since the introduction of MAiD. The same would be desirable in regard to mental-health care services. However, suffering patients should not be held hostage by anti-choice activists to achieve this. It’s also false to assume that in a better resourced mental-health care system, no MAiD requests would occur.

I think it is remarkable that after decades of trying to remove the societal stigma that is attached to mental illness, anti-choice activism has gone full circle, it is trying to remove decisionally capable psychiatric patients’ agency because the activists find the self-regarding choices some of these patients wish to make disagreeable. This shows a remarkable lack of respect for the agency and personhood of such people.

Changing MAiD access criteria, after much deliberation, to include mental illnesses does not constitute evidence of a slippery slope; rather, it brings the current unconstitutional legislation in line with the Supreme Court criteria, and that is the point where Canada’s MAiD journey began.”

“The expression ‘mental illness as their sole underlying medical condition’ is an imprecise shortcut for clinical concerns that people might have about certain MAiD requesters. For example, (clinicians) might be concerned about MAiD requesters who have an imprecise diagnosis or whose prognosis is uncertain. Or they might have concerns about MAiD requesters who have a history of suicidal thinking or even behaviour.

The problem is there’s a mismatch between what we’re really concerned about and the way that we’re formulating the solution. The concerns and the diagnoses do not overlap perfectly. So, there are people who have mental disorders where these concerns don’t arise and there are people who have other kinds of diagnoses where these concerns do arise.

But we’re not going to get rid of the problem by excluding people based on their diagnosis. So, I think then the question arises: ‘Why do we have this exclusion clause? What purpose is it serving?’ I think that there’s some kind of belief that if we can make generalizations about this group of people and that if we just exclude the group, we get rid of the problem. Clinically, that turns out not to be true.

How society wants to respond to these problems is an open question. Do we respond to these problems related to imprecise diagnosis and prognosis, suicidality and so on, by excluding requesters that have those characteristics? Perhaps that might be an entirely legitimate way to go. But my point is simply that we’re not necessarily going to achieve that goal by having a mental illness exclusion clause.”

“No would be my answer (to MAiD expansion). Primarily because we’re not at a point where we could ever say that (mental illness) is not curable or untreatable.

Secondly, we’ve known for decades now that our mental-health system is woefully inadequate and woefully underfunded. It’s difficult to get even basic CBT therapy. You can be prescribed medication, but for a lot of people that’s also not going to be a full answer. Most psychiatric medications work well some of the time. But it’s not the same as medication for an acute condition where we know what’s going to have an impact and what that impact is going to be.

If we have a situation where we don’t know if a condition is irredeemable, and we know that it’s unlikely people are going to be able to get the amount and type of support they need in our current systems, then essentially you’re solving the problem of inadequate mental-health services with MAiD.”

“I’m very supportive of respecting people’s wishes and autonomy over their lives. I definitely do not think that people with mental illness should be excluded from MAiD if they have another condition. But I’m personally very against MAiD solely for a mental illness. The main issue for me is a lack of evidence.

In our practice as psychiatrists, we really strive to be evidence-informed and recovery-oriented when we work with people who have severe and persistent mental illness. We also recognize that suffering is usually a significant experience of mental illness. Suffering is a valid and subjective state. But if you have a recovery focus, then saying that the mental illness is irremediable or incurable is a different issue.

Being able to determine irremediability is a standard that the physicians who need to make that decision should have. But we just don’t have a standardized and evidence-based way of assessing that yet for any mental illness. We also don’t have enough evidence to think about the potential overlap between irremediability of a mental illness and suicide. How can you assess whether someone is making that decision based on the irremediability of their mental illness versus having suicidal intent that is actually an active part or symptom of having a mental illness? I just don’t think we can distinguish that and therefore there will be needless deaths and people who are deemed irremediable who could still have received improved care and have their suicidality treated.

The recent report of the expert panel noted that it was out of its scope to continue to debate whether a person with mental illness as the sole underlying condition should be eligible for MAiD. Yet accepting this eligibility as a foregone premise does not accurately represent the degree of dissent within psychiatry and mental-health disciplines or present a balanced representation of countervailing perspectives that are critical of the conclusions arrived at in the report.

We also know people don’t have full access to mental-health care. Even before the COVID-19 pandemic, up to a half of Canadians struggling with mental illness and mental distress didn’t have adequate access to care. Within that context, to introduce MAiD solely for the purposes of mental disorder seems to be particularly tragic.

When we do think about suicide, we also think about the impact socially. The ripples go far beyond the person who dies by suicide to their friends and family. The same is going to be true of people who choose MAiD solely for the purposes of a mental illness. There are going to be other social impacts beyond the individual. I don’t think that we have had the chance to properly engage people with lived experience and their families for what could be – will be – a very momentous social impact.”