Medical Assistance in Dying. A Review of Court Decisions on the issue of MAiD and Psychiatric Illness

In this issue of the journal, van Veen and colleagues have reviewed the issue of irremediable psychiatric suffering in the context of medical assistance in dying (MAiD). ¹ They conclude that uncertainty about irremediability is inevitable, and furthermore, the treatment efficacy is challenged by patients refusing certain types of treatment. They call for more epidemiological research. I should note that it is the right of all patients to refuse all or certain levels of treatment in any medical condition.

MAiD for psychiatric patients has proven to be a controversial issue for many Canadian psychiatrists. In my opinion, this issue has been defined and will be defined in the future, not by medical studies, but by legal decisions influenced by a profound change in societal values over the last 30 years.

In 1993, the Supreme Court of Canada refused to allow an assisted death for Sue Rodriguez, a woman suffering from amyotrophic lateral sclerosis by a decision of 5 to 4. ² The court held that although the law as it existed infringed section 7 of the Canadian Charter of Rights and Freedoms, this infringement was justified. Section 7 enshrines the right to life, liberty, and security of the person, rights which cannot be removed outside of the principles of fundamental justice.

It was not until 2015 that the Supreme Court of Canada again addressed this issue. The court heard the Carter case on appeal from British Columbia. ³ Kay Carter suffered from spinal stenosis and had an assisted death in Switzerland before the case was even heard. Gloria Taylor, the other plaintiff, suffered from amyotrophic lateral sclerosis. The court concluded that prohibiting physician-assisted dying (as it was then known) infringed the rights of the plaintiffs, specifically sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 15 prohibits discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. The court decision was unanimous and, furthermore, all 9 justices signed the decision, a rare judicial intervention.

Following this decision, individuals who wished to have assisted dying had to apply to the courts prior to legislation being introduced. The issue as to whether “Carter” applied to individuals with psychiatric illness was adjudicated by the Court of Queen’s Bench of Alberta. The plaintiff EF had a severe Conversion Disorder. The court granted her an assisted death. The decision was appealed not only by Alberta but also by the Attorney General of Canada. The crown objected that EF’s illness was not terminal and that she primarily suffered from a psychiatric condition. The Alberta Court of Appeal denied the appeal and granted EF an assisted death. ⁴ It was thus clear that the rules flowing from the Carter decision did allow assisted dying for individuals with psychiatric illness as their sole diagnosis.

Subsequently, the federal government introduced and passed Bill C-14. This Bill did not speak directly to the issue of psychiatric illness but essentially denied assisted dying to psychiatric patients by the insertion of the clause that “natural death must be reasonably foreseeable.” Under C-14, the only psychiatric patients granted assisted dying were patients with severe eating disorders and elderly patients with various diagnoses whose natural death was reasonably foreseeable based on their age.

In the AB case in Ontario, a 77-year-old woman with chronic osteoarthritis requested an assisted death. ⁵ Justice Perell ruled that natural death need not be due to a particular terminal disease or condition and rather is connected to all of the person’s medical circumstances. AB was allowed an assisted death.

In a recent decision in Quebec in 2019, Madam Justice Baudouin held that the “reasonably foreseeable natural death” requirement of C-14 infringed upon plaintiffs’ charter rights, specifically section 7 and 15 of the Charter. ⁶ The Government of Canada was ordered to amend the criminal code and the government subsequently introduced Bill C-7 in January 2020. This Bill is still before parliament.

In February 2020, the Canadian Psychiatric Association released a position statement that concluded “patients with a psychiatric illness should not be discriminated against solely on the basis of their disability and should have the same options regarding MAiD as available to all patients.” Other authors submit that there is a lack of scientific evidence regarding physician-assisted dying for persons with psychiatric diagnoses.

In my opinion, this is an issue that cannot be primarily addressed by scientific study or evidence. This is a human rights issue that can only be addressed by fully informed court decisions. I find it inconceivable that any court would allow discrimination against a class of Canadians, in this case psychiatric patients, to be denied access to MAiD provided they meet all of the other requirements of the law. Such a denial in my view would gravely offend section 15 of the Charter.

Progress in assuring Canadians’ right to MAiD has only been achieved through judicial decisions. The politicians, with the exception of Quebec, have only been reluctantly reactive to decisions of the courts and have shown, in my opinion, no leadership on this issue.

I recognize the conundrum that this issue poses to psychiatrists, including myself, who have spent our careers trying to prevent suicide. We need to find a path that allows qualified Canadians right of access to MAiD without discrimination based on a primary or secondary psychiatric diagnosis.

In summary, I am not opposed to ongoing research in regard to MAiD and psychiatric patients; indeed, I welcome it. However, the main influence in shaping ongoing public policy has been and will continue to be into the future, judicial decisions focusing on human rights.