Sound Body, Ailing Mind: the Complexities of Assisted Dying for the Mentally Ill

Introduction

One of the more salient questions surrounding Canada’s new assisted dying regime concerns requests by persons suffering exclusively from mental illnesses to end their lives. While this option is not currently available in Canada, due to the requirement that death be reasonably foreseeable, Bill C-14 requires the government to conduct an independent review of issues relating to these requests within the next two years.

Global approaches to this issue are mixed. Belgium and the Netherlands permit such requests in cases where the mental illness causes “unbearable suffering with no prospect of improvement”, but the American Psychiatric Association recently approved a policy statement preventing its members from participating in assisted dying. While this is somewhat of a moot point in the United States, where medically assisted dying is not legal, the statement may have an impact here in Canada given the important persuasive role the APA plays in defining the “voice and conscience” of the psychiatric profession generally.

The right to die of the mentally ill has the potential to become the next great battle in the debate around medically assisted dying, raising unique legal challenges and flagging a potential role for the psychiatric profession in non-state regulation of the practice. While mental illnesses are diverse and not all challenges will apply to all conditions, the following themes and legal issues are expected to pose challenges in at least some cases.

Reasonably foreseeable death

The requirement that “natural death has become reasonably foreseeable” excludes mental illness from the ambit of Canada’s new legislation. Since mental illness does not result in natural death, it alone can never constitute the grievous and irrevocable medical condition required to allow the option of physician-assisted death under section 241.2 of the Criminal Code. Notably, the inclusion of this criterion proved controversial at the drafting stage, as it contravened a recommendation of the Joint Special Committee that non-terminal conditions be included. Indeed, Professor Peter Hogg of Osgoode Law School suggested during his testimony that including this condition would make the law vulnerable to constitutional challenge as the Supreme Court alluded to no such criterion in Carter.

Allowing requests for physician-assisted death where mental illness is the sole medical condition is only possible if Parliament removes the reasonable foreseeability requirement. Interestingly, the outcome of the independent review may impact the approach to other non-terminal physical illnesses. Allowing cases of mental illness to circumvent the legislation’s criteria while continuing to require it in the case of physical illness appears logically inconsistent.

Never irremediable?

Another issue that arises in the cases of mental illness is the degree to which mental illness fulfills the criteria of being “irremediable”. Under Canada’s legislation, the requesting individual’s condition must be “grievous and irremediable”, which includes the criteria that it be “incurable” and cause “an advanced state of irreversible decline in capacity”. Psychological problems, being less tangible and less well-understood than physical ailments, complicate the assessment of remediability.

In conformity with the increasingly central recovery-based model of treatment, a variable combination of medical, therapeutic and social interventions might manage suffering such that mental illness is deemed “remediable”. In particular, in light of the fact that a large proportion of individuals suffering from mental illness do not have access to the resources they require, it may be difficult to say with certainty that a given case of mental illness cannot be effectively remedied: there is always the possibility that a different approach or more social support could reverse the decline in an individual’s condition.

Even though a mental illness may be incurable, it seems somewhat less likely, due to the complex causes and varied treatment options, that a psychiatrist would be willing to say that the progress of any given mental illness is irreversible and, therefore, irremediable. Without clear criteria for determining the remediability of mental illnesses, it is unclear how these cases could fit within the C-14 scheme.

Informed Consent

Another issue that complicates assisted dying for the mentally ill is their ability to give the informed consent as required to initiate the assisted dying process. Given that suicidality is a symptom of mental illnesses like severe depression, it may be difficult to separate a reasoned judgment to end suffering from a symptom of the disease. Deciding to end one’s life due to psychological suffering inevitably conflicts with the legal notion that psychological conditions that alter our reasoning can vitiate consent.

The Carter decision and Bill C-14 took great care in handling issues regarding the patient’s consent. Providing medical assistance in dying for mentally ill patients will prove an even more onerous task. || (Source: Wikimedia Commons)