A Quebec commission appointed by the National Assembly recently recommended against allowing medical assistance in dying (MAiD) for people whose sole underlying medical issue is mental illness.
In a recent article in Policy Options, Dr. Mona Gupta, chair of a separate federal panel charged with drawing up the terms for implementation of MAiD for the sole reason of mental illness, and Jocelyn Downie, criticize the Quebec commission’s report as being “based on misleading statements and logical inconsistencies.”
As illustrated below, it is Gupta and Downie who present skewed and selective arguments for a profound social change that will place some non-dying Canadians at discriminatory risk of premature death.
Gupta and Downie claim that the Quebec commission’s recommendation “is out of step with the evolving thinking on this issue found in jurisprudence, federal legislation and the recommendations of Quebec’s regulatory authorities and professional associations.”
With respect to jurisprudence, let’s be clear: A single Quebec Superior Court judge ruled in 2019 in Truchon v Canada that the previous Canadian and Quebec MAiD laws were unconstitutional because they required people requesting MAiD to be in a state where death was “reasonably foreseeable” (federal) or where the person was at the “end of life” (Quebec). The lower court decision was not appealed despite what we think are compelling legal and policy reasons to do so. Therefore, there is no higher court endorsement of the reasoning behind the decision.
Ottawa’s answer to the Quebec court was Bill C-7, which took effect March 2021. It no longer restricted MAID to situations where death is “reasonably foreseeable,” and introduced a new de facto access track for disabled Canadians whose death is not “reasonably foreseeable.” Additionally, the Trudeau government suddenly reversed its previous commitment to exclude MAiD for mental illness alone, with NDP and Conservatives in clear opposition. It accepted a Senate-introduced “sunset clause,” which delayed MAiD for the sole reason of mental illness until March 2023. We believe the decision to rush through the legislation was political and failed to consider the unique dangers of expanding MAiD outside the end-of-life context and particularly for reasons of mental illness.
This expansion also goes far beyond the Truchon ruling, which did not involve mental illness. Gupta and Downie did not mention that in the major MAiD case on which the Supreme Court has ruled (Carter v Canada 2015) it explicitly restricted its decision to “the factual circumstances in this case,” that of a person living with ALS approaching her natural death, and it made “no pronouncement on other situations where physician-assisted dying may be sought.” It also explicitly stated that “euthanasia for … persons with psychiatric disorders” did “not fall within the parameters” of its ruling at that time. Given that neither the Quebec Court of Appeal nor the Supreme Court were asked to rule on Truchon in 2019, Bill C-7 remains open to a Charter challenge.
Some who defend the expansive new law invoke the right to equality. Yet, three United Nations rapporteurs and human rights experts, national disability and social justice organizations, Indigenous advocacy groups and leaders and elders, along with hundreds of medical and legal experts have argued that Bill C-7’s removal of the safeguard of “reasonably foreseeable death” for those with disabilities, including mental health disabilities, shows reckless disregard for equal protection of disabled persons against avoidable death.
From the world-renowned CAMH (Centre for Addiction and Mental Health) to the Canadian Association for Suicide Prevention, experts have warned that it is impossible to predict, as per the language of the law, the “irremediability” of mental illness for any individual. Critics say this raises the spectre of people who are not near death, but who have mental illness, being provided physician-assisted death based on unscientific assessments by physicians claiming supposed “irremediability” — at times where they may be suffering despair that is actually resolvable.
Suggesting there is emerging “consensus” in the mental health community, Gupta and Downie refer to professional organizations endorsing MAiD solely on the grounds of mental illness. One of the reports they invoke, the Quebec AMPQ report, of which Gupta was a key author, explicitly acknowledged that those who may get MAiD for mental illness could have “regained the desire to live at some point in the future” (i.e. their condition may not have been irremediable). The report suggests that “assessors will have to answer this ethical question each and every time they evaluate a request,” meaning MAiD eligibility would depend on practitioners’ personal ethics rather than medical evidence. The previous MAiD law, Bill C-14, as well as the current Bill C-7 and the Canadian public, did not envision that irremediability was to be an “ethical” value-based decision. Instead, they trusted there would be some science and evidence behind it. Regarding autonomy and informed consent, how can someone with a mental illness make an informed capable choice about MAiD when experts say any prediction about their illness and future suffering as “irremediable” is meaningless?
The Canadian Mental Health Association and the Ontario Association for ACT & FACT (experts providing front-line care to those with the most severe mental illnesses) both stand in strong opposition. In a recent survey the overwhelming majority of Ontario psychiatrists who responded said they oppose the sunset clause and MAiD solely on the grounds of mental illness. Gupta and Downie’s article paints a false impression of a “fait accompli” consensus that does not exist.
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The authors surprisingly criticize as lacking in detail the argument raised by the Quebec commission that “mental disorders have specific characteristics that distinguish them from other illnesses such as cancer or lung and heart disease.” Most lay people need no convincing that when issues of people seeking death and suicidality are involved, there are obvious differences between mental illnesses and other illnesses. Any psychiatrist knows that no other medical illnesses have suicidality as a potential diagnostic criterion. A wealth of evidence shows that people suffering mental illness with related symptoms of despair and hopelessness make different decisions than they otherwise would.
Gupta and Downie further minimize the Quebec commission’s worry about “distinguishing suicidality from a request for MAiD” in cases of mental illness. This is particularly surprising given that Gupta and Downie sat on the Council of Canadian Academies (CCA) expert panel that issued this key finding: “Some people who have sought psychiatric euthanasia and assisted suicide in jurisdictions that permit it share certain characteristics with people who attempt suicide.”
Many injuries and physical illnesses are indeed accompanied by temporary depression and suicidal thinking. For example, research demonstrates increased risk of suicide for two years after a spinal cord injury. This suicidality overwhelmingly ends with adaptation and recovery support. Offering death to anyone during a period of transient increased suicidality is, in our view, unethical and violates the standard of medical care by which physicians must abide.
The fact that the newly expanded law may facilitate death in those circumstances of increased suicidal thinking is, in and of itself, problematic. The fact that MAiD for suicidal thinking in those suffering from physical disease is allowed does not make the failure to prevent suicide of people solely on the grounds of mental illness any more acceptable, as Gupta and Downie appear to suggest. Of further concern, they do not mention the fact that those getting MAiD because of mental illness in the few European countries that provide it disproportionately seek relief because of marginalization, including unresolved social suffering and loneliness – problems that are remediable.
Gupta and Downie characterize as ‘inconsistent’ that a person with schizophrenia could be denied MAiD for that condition, yet return the next day and get MAiD for cancer. Once again, this neglects the obvious differences between mental illnesses and terminal/neurodegenerative diseases (where many Canadians support MAiD). The impossibility of assessing irremediability is absolutely particular to those with mental disorders and thereby singles them out as a distinctly identifiable group. Failing to recognize this difference is discriminatory and exposes these non-dying Canadians to unjustifiable deaths. The Quebec commission’s recognition of these key differences is consistent with evidence. It is Gupta and Downie’s discounting of these differences that should raise concern.
The authors conclude that not giving access to MAiD interferes in the lives of capable adults living with mental disorders, some of whom may have had many years of ineffective treatment. We find it startling to frame suicide prevention as an “interference” in people’s lives, and disturbing that Gupta and Downie do not mention the lack of access to care faced by Canadians suffering from mental illness. The Mental Health Commission of Canada tells us that fewer than one in three adults get the mental health care they need. Only one in five children can access early care that may prevent them from needing many years of professional care later because their diseases were not treated in a timely way. Canadians wait up to five years for specialized tertiary psychiatric care.
In this context, introducing in law a “painless death” through MAiD and ignoring the systemic failures of lack of access to mental health care seems beyond reckless. While this will save money (providing MAiD to non-dying persons with decades left to live is far cheaper than attempting to provide support for dignified living), it will come at the high cost of prematurely ending the lives of those who could possibly have recovered and enjoyed long meaningful lives with family and loved ones.
We think that in Gupta and Downie’s ledger, this may be seen as respecting autonomy and compassionately providing peaceful deaths to those suffering from mental illness who were irremediable. In our ledger, it will be making irresponsible predictions of “irremediability”’ and failing to allow for true informed consent, while providing premature deaths to potentially suicidal and marginalized individuals who might have improved.
Permitting MAiD solely on the grounds of mental illness fundamentally violates the right to equal protection of persons with mental illness against premature death. Gupta and Downie’s strong rejection of the Quebec commission’s recommendation is concerning, particularly when considering how such skewed arguments might influence the soon-to-be released recommendations of Gupta’s federal panel. One member of a mental health advocacy organization has already resigned from Gupta’s panel but this has not been announced by the panel or federal government. None of this bodes well for those of us hoping for a balanced and evidence-based approach.
Sonu Gaind, professor at the University of Toronto, chief of psychiatry and physician chair of the Humber River Hospital MAiD team and former president of the Canadian Psychiatric Association, co-authored this article.