Canada has recently established the right to physician-assisted suicide, and Canadians are debating who should have that right. In Carter v. Canada (2015), the Supreme Court held that it was unconstitutional to
prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual.
The Court did not limit this right to those who are near death. After all, if a person has a right to suicide to escape intolerable suffering during the last days of her life, why should she be forced to endure it for decades? Nor did the court exclude any specific medical condition. This raises the question: Should the right to assisted suicide be extended to persons who want to end the suffering they experience from mental illness?
It is entirely appropriate for Canadians to discuss whether persons with mental illness would be competent to consent to a physician-assisted suicide. Liberal societies believe that all citizens are entitled to the equal protection of the law. So if a right is granted to one class of citizens, and the boundaries of that class are arbitrary, we should knock that barrier down.
But is it arbitrary to exclude patients who want an assisted suicide to end a mental illness? Mental illness is associated with a high risk of suicide. Moreover, there are significant concerns about the physician-assisted suicides of psychiatric patients in the Netherlands, where the practice is legal (see also here). We need to think carefully about who is competent to consent to an assisted suicide.
The Court gave the Canadian government a year (since extended) to write laws and regulations implementing physician-assisted suicide. From the Carter decision, we can see that physicians will be able to assist the suicides of competent adults with irremediable and enduring conditions that cause intolerable suffering.
So, can the suffering of severe mental illness be intolerable? In his classic memoir of his depression, Darkness Visible, William Styron wrote that
The pain of severe depression is quite unimaginable to those who have not suffered it, and it kills in many instances because its anguish can no longer be borne.
Can severe mental illnesses be irremediable and enduring? Yes: some patients suffer incurably. However, many cases have an episodic course, with suffering that is irremediable but not necessarily enduring. It is an open question whether psychiatrists can accurately distinguish cases in which the suffering will remit from those that never will.
Are psychiatric patients competent to consent? Even some severely mentally ill people can be competent to make important life decisions. Nevertheless, we should be extremely careful about the competence of psychiatric patients to consent to assisted suicide.
Mental illness is the strongest known risk factor for suicide. Danish researchers linked a national registry of psychiatric patients to vital statistics data. They found that adult men with mental illnesses are more than 12 times more likely to die by suicide than the general population and women are more than 13 times more likely. These exceptional ratios are why preventing suicide is the first priority of mental health clinicians. Further, the epidemiology of suicide poses this question: Is the desire of a mentally ill person to take his life a reasonable response to his situation or a symptom of his disease?
Legal competence requires that a person be able to appreciate his situation and its consequences. However, hopelessness is both a key symptom of depression and an important indicator of suicide risk. Styron:
It is hopelessness even more than pain that crushes the soul.
A person can be hopeless because she has accurately appraised her future. But the mentally ill often underestimate and devalue their prospects. Styron wrote about his illness that
The pain is unrelenting, and what makes the condition intolerable is the foreknowledge that no remedy will come- not in a day, an hour, a month, or a minute. If there is mild relief, one knows that it is only temporary; more pain will follow.
Or so he felt at the time. Yet after that episode, Styron’s condition remitted. He experienced a final relapse at the end of his life. But a midlife suicide would have cost him and his family many healthy years, and it would have cost the world Darkness Visible and A Tidewater Morning.
The Canadian Parliament is working on the law required by the Supreme Court. The Parliament’s Special Joint Committee on Physician-Assisted Dying recommended
That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.
The Committee cited the argument of the distinguished ethicist and lawyer Jocelyn Downie that
[M]ental illness should not be an exclusion criterion [for assisted suicide because]… not all individuals with mental illness are incompetent. Physicians already routinely determine whether someone is competent, even when they have a mental illness.
Physicians do routinely make competence determinations. This is because these determinations have to be made and there is no reason to think that anyone else can do a better job of it. However, those aren’t strong grounds for believing that physicians can validly and reliably determine when a desire to end one’s life is a reasonable decision and when it is a symptom of mental illness.
In an assisted-suicide competence determination, a physician can make two kinds of errors. On the one hand, she could judge that a patient is incompetent to consent, when in fact he is. If so, the cost is that the patient will be deprived of his rights. On the other hand, the physician could judge that the patient is competent to consent, when in fact he is not. If so, the cost is a dead patient. We have no estimate of the likelihood of either type of error. The Canadian parliamentarians have confidence in physicians’ abilities to determine whether mentally ill people are competent to consent to assisted suicide. But this confidence lacks a scientific foundation.
Concern for the autonomy and dignity of the mentally ill means that we should urgently develop valid procedures for determining which patients are competent to consent to assisted suicide. Concern for their lives means that we should precede incrementally and not include mental illness until we’ve worked this out.