Medical Assistance in Dying and Mental Health: A Legal,Ethical,and Clinical Analysis

Abstract

Medical assistance in dying (MAiD) legislation is now over a year old in Canada, and consideration is turning to whether MAiD should be extended to include serious mental illness as the sole qualifying condition for being eligible for MAiD. This article considers this question from ethical and clinical perspectives. It argues that extending the eligibility for MAiD to include those with a serious mental illness as the sole eligibility criterion is not ethical, necessary, or supported current psychiatric practice or opinion.

Context

In February 2015, the Supreme Court of Canada struck down the Criminal Code prohibition on physician-assisted suicide under certain circumstances. ¹ The federal government passed Bill C-14, which was enacted on June 17, 2016. Bill C-14 provides the legal structure for what has now been called medical assistance in dying, or MAiD, embracing both physician-assisted suicide (where the doctor prescribes medication for the person to take at some future time) and voluntary euthanasia (where the doctor administers medication to cause death). ² The cases before the Supreme Court were ones of terminal illness and severe disabling physical illness. The Court ruled that persons facing grievous and irremediable suffering on the basis of a serious medical condition (one of the index cases was a terminal condition and one a degenerative neurological disorder) should be able to seek MAiD. The Court’s decision did not limit the scope of MAiD to terminal illness, however, but left the door open for a number of other medical conditions and concerns to qualify for MAiD. The Court also found that persons whose condition is so disabling that they are unable to exercise their own right to end their own life have a right to seek assistance to do so. The Joint Parliamentary Committee recommended including nonterminal disorders, ³ but Bill C-14 restricts MAiD to situations where death is ‘reasonably foreseeable’. This places MAiD largely in the area of end-of-life decision making, were MAiD is provided to a person whose death is ‘reasonably foreseeable’. Parliament further required independent review of whether the legislation should in future be extended to requests where mental illness is the sole underlying medical condition, consultation for which is currently under way.

MAiD has been quickly adopted. For the time period from June 2016 to June 2017 inclusive, 1981 persons have died using medical assistance, all bar 5 by voluntary euthanasia with 95.7% by physician and 4.3% by nurse practitioner. ⁴

The purpose of this article is to consider the issue of whether serious mental illness might be a condition that would allow a person to seek MAiD. The approach taken is to examine the fundamental ethical and clinical issues involved. For almost all situations where serious mental illness is the sole qualifying disorder, death is not reasonably foreseeable, nor is the person’s physical state so disabled that he or she is unable to exercise the right to end his or her own life. The exception is severe anorexia nervosa, which may meet the criteria in Bill C-14. ⁵ In the Netherlands, where mental illness is a sole eligibility criterion, only 3% of people with mental illness receiving voluntary euthanasia did so because of an eating disorder. ⁶ The clinical and ethical issues for extending MAiD to serious mental illness as a sole condition takes MAiD from end-of-life clinical care or assistance to those unable to make their own act of suicide into a much broader situation. This requires careful ethical attention.

Legal Argument

In some other jurisdictions, notably Belgium and the Netherlands, mental illness may qualify for MAiD. ⁷ The Court in Carter heard evidence about this but did not consider it, saying at paragraph 111, ‘Professor Montero’s affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions’. ¹ It is unclear if the constitutional arguments that were found to apply for terminal illness and for those so gravely disabled as to be unable to exercise their right to end their own life hold in these other situations. Paragraph 111 does suggest that the parameters of Carter do not include persons with psychiatric disorders alone. ^8,9

The specific cases before the Supreme Court in Carter did not require a ruling in relation to ‘psychiatric disorders’. However, in deciding that the appellants’ charter rights were violated by the prohibition on assisted suicide, the Court noted that section 7 of the charter protects the right to make fundamental personal choices free from state interference. This included a notion of personal autonomy involving control over one’s bodily integrity. The Court found that the prohibition on assisted suicide interfered with the applicants’ ability to make decisions about their bodily integrity and thus encroached on their liberty. It also found that to the extent that the prohibition left people like the appellants to endure what for them was intolerable suffering, it impugned their security of the person.

The Court argued that if a medical condition robs a person of the physical ability to take his or her own life, section 7 of the charter protects the right of those individuals to seek MAiD so that they are not forced to end their lives earlier than they otherwise would out of knowledge that they could not do so later when they would be too incapacitated. As the Court opined,

The trial judge found that the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. On that basis, she found that the right to life was engaged.…The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of [page 368] life “is no longer seen to require that all human life be preserved at all costs” (Rodriguez, at p. 595, per Sopinka J.). And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect. (1, paragraphs 57-63)

For terminal illnesses and severe disabling disorders, this line of argument has considerable support from other jurisdictions. This type of argument is part of the foundation for MAiD in terminal conditions in Quebec and 6 US states. ¹⁰ In the legislation in Quebec, MAiD is seen as extending from a physician’s duty of care in end-of-life care and thus bounded by the clinical ethics of end-of-life decision making whilst specifically excluding psychiatric conditions. ¹¹ Most psychiatrists in Canada appear to support MAiD at end of life but are much more reticent about extending MAiD to persons only with a serious mental illness. ¹² Australasian ¹³ and American ¹⁴ psychiatric bodies have come out against such extension.

The proposal to extend MAiD to include someone with a serious mental illness who retains the physical and mental ability to end his or her own life and who is not dying takes MAiD into a different ethical and constitutional framework than argued in Carter. The arguments from end-of-life care and from a right to life and bodily integrity perspectives no longer hold. These are not end-of-life decisions, nor is the person unable to end his or her own life should he or she so choose. ¹⁵ So why should the prohibition on assisted suicide be lifted here?

Status of Mental Illness

Mental illness is not, generally, a terminal disease. Mental illness alone does not, generally, deprive people of their own ability to end their life. Suffering from a mental illness can be immensely difficult and painful. It can be life threatening. But the possibility of recovery is never lost. ¹⁶ The severity of mental illness waxes and wanes. New treatments are possible, new types of therapy can assist, and new ways of thinking about being someone living in recovery are always available from many sources. We do not yet know enough about when or if someone will recover or if the severity of their disorder will remit in time. ^12,17 But clinicians must at all times remain engaged and try to help as best they can. Giving up on hope for some patients may be dangerous for mental health services.

Clinicians know only too tragically that there are times when people with mental illness may take their own life; most of us in clinical practice have lost at least one patient to suicide. Depression can lead a person to feel hopeless, worthless, and unable to change his or her life situation. Psychosis can grossly distort the nature of how the person experiences the world and people in it. Decisions made in the grip of illness deny the possibility of seeing the world differently, or a person can feel ground down by years of problems that all feel too much. But people with mental illness usually retain the capacity to look at their life situation competently, at times hopeful, at other times not, as they try to determine how best to live, thrive, and manage the ebb and flow of psychiatric disability. Suicide under these situations is an understandable answer to the problems of living with mental illness, although, we hope, never the best alternative. ¹⁸ The task of living with serious mental illness can be overwhelming and painful, and contemporary mental health care remains of limited effectiveness for many.

It is not for carers and clinicians to lose our hope. ¹⁶ We must always seek the possibility of finding ways to help people with their suffering and help them see their ongoing life as valuable and vital, for themselves and for others who know them and love them. In my view, the role of psychiatrists in the mental health system is to assist people in recovery, including relief of suffering, and enhance their ability to find ‘a life worth living’ as they define it. All people are worthy of our service, most importantly at the times when they struggle with whether they can bear to continue to live. To expect clinicians to participate in a person’s decision to take his or her own life adds a fundamentally different and conflicting mission to that commitment. ¹⁵

The next complicating factor for people with mental illness is that socioeconomic factors can be major ones in making someone’s life difficult, such as inadequate income support, poverty, and poor or unavailable housing. People with mental illness frequently have poor social conditions and a lack of good housing and income support. Social inclusion is often frustrated by major barriers of stigma and discrimination. These factors can be very significant in how people judge the value of their life or whether they feel valued and have a place in the wider community. The task of reducing stigma and promoting social inclusion is vital, including ensuring there are adequate clinical and community supports for people with mental illness. It would be tragic if societal inadequacies increase people’s sense of hopelessness so that they seek death by MAiD.

The Ethical Nature of a Request for Assistance to End One’s Life

There is another dimension that is rarely discussed but remains vitally important: when is it ethical for one person to ask another person to kill him or her or to be party to that person’s death? This is, in ethics and relationships, what MAiD is: a request of a physician to participate in suicide (physician-assisted suicide) or euthanasia (physician-caused death of a consenting person). In both situations, a physician has become involved in and party to the patient’s death. It involves other health care professionals also: nurse practitioners, pharmacists, and other members of the health care team. Bill C-14 defines that if a person’s death is reasonably foreseeable and his or her suffering is irremediable, then it is legal to ask someone to assist, ² and Quebec has agreed that this is part of the ethics of end-of-life care. ¹¹ But beyond those narrow limits, we must be careful. Is it ethical for a person to ask someone else to kill him or her? What ethical burden does that place on the other person?

And there are broader questions about the practice of psychiatry itself. Accepting MAiD for mental illness risks that despite our values of protecting and upholding life, we will also do the opposite and end life in some situations. Defining those situations is essentially one of individual value judgements by each psychiatrist about which lives are worth living and which are not. Will we progressively expand our definition of what life no longer has purpose or value? And are we sufficiently confident that we have the ability to do this, cognizant of the involvement of psychiatry in the eugenics movements of the past? What does it say to others who may be vulnerable and struggle to find meaning of a life with suffering?

Involving others in one’s death places an ethical burden upon them that may of itself be harmful. Evidence from the countries that have this legislation suggests the burden of participation in physician-assisted suicide is not insignificant. ¹⁹ It is so against the core values and training of physicians to be involved in causing the death of other people. It seems reasonable to expect that being party to some of our patients’ deaths would bring significant ethical fallout for physicians as practitioners and as people.

There is no argument from liberty that one has a right to engage someone else in the act to end one’s life. This argument only holds if one is physically incapable of doing so oneself and then only under certain circumstances. It is not the right to take one’s life that is being sought; it is the right to involve others in one’s suicide. Suicide is not illegal. It is available to all of us who have the physical ability to end our own lives. MAiD, however, is getting the help of a doctor in one’s suicide and, for serious mental illness, getting help when one has the physical capability of doing so oneself. Assistance of a health care professional is not generally required to commit suicide.

It is worth reflecting that suicide must be the only legal act that is illegal to assist. This speaks to society’s concern that we must not condemn a person for feeling suicidal or for taking his or her own life. But neither do we want to encourage or facilitate suicide, and we may condemn anyone who does so. We see people feeling suicidal as vulnerable and worthy of our support at times of crisis. Allowing MAiD for persons with mental illness overturns these core commitments.

Liberty defends the right to decide if and when we die. The Court has found that if one loses physical capability, then liberty argues for the ability to ask others to assist in one’s death. But the Court was also aware of the need to protect vulnerable others, for all our decisions in this area will affect others: family, friends, people suffering in similar ways, and others who may experience negative impacts on the sense of value of our shared lives. There is reference throughout Carter of this being a limited liberty and of the need to protect ‘vulnerable populations’ without enunciating what MAiD protection needs to be or why. As Callahan ²⁰ has stated, respect for autonomy is vital but not determinative, and relief of suffering is not the only human good that physicians must respect. The current law wisely limits MAiD to end-of-life care to achieve this balance; extending to include serious mental illness alone would not.

Concluding Remarks

Those of us who work in mental health are only too aware of our limitations. There are people for whom it seems all we can do is inadequate to help them find a way to live. We need to be humble in the face of that limitation and keep striving to improve our care and practice. To introduce MAiD as an ‘option’ in this great struggle will only undermine our ability to help people who are suffering greatly with mental illness and burden clinicians with profoundly difficult ethical conflicts between hope, life, and assisted suicide. People may choose to take their own lives; that is understood and respected. But acting as a partner in helping people recover as well as acting as an agent in a patient’s death is an impossible burden that is not ethically justifiable or legally necessary.

MAiD should be confined to terminal illnesses and situations where a person is physically incapable of enacting his or her own wish to commit suicide and not to serious mental illness alone.