Thompson v Ontario (Attorney General), 2016 ONCA 676

Posted By Liam Harris

Background

In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.

CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny. Continue reading “Thompson v Ontario (Attorney General), 2016 ONCA 676”

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

Posted By Liam Harris

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.

Untitled.png
The Carter decision catalyzed Parliament to legalize assisted dying for those suffering from an irremediable physical illness, but what of those whose suffering is mental? || (Source: Dying With Dignity)

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.

File:Supreme Court of Canada by night.jpg

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)

While most cases of mental illness do not result in a loss of general legal capacity, the president of the Canadian Psychiatric Association believes that when it comes to the specific decision of ending their lives, those suffering from certain mental illnesses may not have capacity to give informed consent. The forthcoming independent report will hopefully address the obtention of informed consent from patients whose decision-making capacity is impaired, but this will not be an easy task.

Resistance from Psychiatrists

Furthermore, another key consideration relevant to assisted death for those with mental illnesses is the extent to which the psychiatric profession may exert its normative power to blunt the occurrence of assisted death by psychiatrists. Bill C-14 does not require doctors to provide medical assistance in dying, leaving them free to decline to offer the treatment as long as they comply with their professional obligations. If Canadian psychiatrists adopted a similar policy position as the APA has just taken, we may see the profession en masse refuse to offer assisted death for patient who are suffering solely from a mental illness. Therefore, even if the government adopts changes to allow the practice, the practical effect could be minimal if psychiatrists continue to oppose the idea.

Conclusion

As our government continues to study the issue of medical assistance in dying for persons suffering exclusively from mental illness, it remains an open question if and how these cases will be brought within the Bill C-14 framework. The particularized treatment of mental illness as compared to physical illness reflects an ongoing struggle to understand and destigmatize psychiatric conditions. It seems natural in this largely uncharted territory – perhaps we should turn to medical experts to guide lawmakers – and it remains to be seen what kind of influence the psychiatric community will have on the future of this legal issue in Canada. Of equal importance, though, is ensuring a place for the voices of those suffering from mental health issues at the center of this discussion. Only through meaningful engagement with a broader subset of stakeholders can the legislature and the Courts strike the fine balance required for such a sensitive issue.

Three’s a crowd? Three-Parent Babies and the Future of Assisted Reproduction in Canada

Posted By Liam Harris

Earlier this year, a team of doctors successfully carried out a new fertility technique that resulted in the birth of a child containing the genetic information of three people: the mother, the father, and a female donor. The technique allowed the intended parents to have a healthy baby after all of their previous children had died of Leigh syndrome, a debilitating neurological disease.

However, the mitochondrial replacement technique (MRT) remains highly controversial, both medically, due to unknown side-effects, and ethically, because the donor’s genetic information will be passed on to future generations. In fact, American doctors performed this procedure in Mexico to bypass an American ban. MRT is illegal in Canada under the Assisted Human Reproduction Act (AHRA), but other jurisdictions such as the UK have legalized the technique.

What are the risks and benefits of MRT? And what can these developments tell us about our reproductive legal regime in Canada?

The Science

The vast majority of human genetic information is carried in the cell’s nucleus. However, there is also DNA contained in sub-cellular structures called mitochondria. Unlike nuclear DNA (nDNA), mitochondrial DNA (mtDNA) is inherited exclusively from the mother. While mtDNA accounts for a very small portion of the genome (about 1%), mutations in these genes can cause serious disease due to the mitochondria’s critical role in cellular energy generation and signalling.

Leigh syndrome is one of these diseases. Patients with Leigh syndrome experience a progressive loss of movement and neurological function. This decline often begins in early childhood, resulting from the inability of their neurons to metabolize energy effectively. These patients will rarely live more than a few years.

dr-lin

This new procedure allows prospective parents to conceive a child from their own genetic materials without the risks carried by faulty mitochondrial DNA. || (Source: CBC News)

MRT aims to prevent Leigh syndrome in the children of mothers carrying mutant mtDNA genes. The mother’s egg is harvested and the nucleus, which contains the vast majority of genetic information she would pass to her child, is removed. The rest of the egg, including the disease-causing mitochondria, is discarded. The nucleus from the mother is then inserted into a donor’s egg. This hybrid egg, containing the mother’s nDNA and the donor’s mtDNA, is then fertilized by the father’s sperm, resulting in an embryo that is implanted in the mother through in-vitro fertilization (IVF). The result is a child whose nDNA comes from both parents, but with a mitochondrial genome inherited from a third party. This genetic material will, in turn, be passed on to future generations if that child is female and has biological children of her own.

The Risks

Opposition to MRT is based on two main arguments, one medical and one ethical. First, because the technique is new, its side effects are heretofore unknown. Some suggest that it could result in higher rates of cancer or early aging. While experts have no evidence showing the technique to be unsafe, uncertainty persists.

The result is a child whose nDNA comes from both parents, but with a mitochondrial genome inherited from a third party. This genetic material will, in turn, be passed on to future generations if that child is female and has biological children of her own.

Second, critics decry the alteration of the genome in a way that can affect future generations. Slippery slope arguments suggest that this is the first step down a road to “designer babies”, where parents modify the genome of their offspring to meet their every whim. In the case of MRT, it is important to remember that mtDNA accounts for only a tiny portion of the genome and that these genes control basic cellular functioning rather than the types of defining traits often pictured in the case of designer babies. This concern may therefore prove less relevant to this particular genetic change. However, caution is warranted whenever a heritable alteration occurs, because this permanently changes the composition of the gene pool, recognized as the common heritage of humanity.

The Law

The replacement of the egg’s mtDNA with that of the donor alters the genome in a way that is potentially inheritable, placing the technique within the ambit of prohibited practices in Canada. Section 5(1)(f) of the AHRA states that “[n]o person shall knowingly alter the genome of a cell of a human being or in vitro embryo such that the alteration is capable of being transmitted to descendants”. Doctors carrying out the procedure in Canada could face harsh penalties: up to $500,000 and a ten-year prison term.

The outright criminalization of heritable genetic alterations seems less and less tenable as new techniques are developed that offer significant medical benefits and manageable risks. In addition to MRT, recent advances in human gene editing have fuelled hopes that inheritable genetic diseases could be eradicated forever, but these procedures would be prohibited under the AHRA for inducing inheritable genetic alterations.

101716_TI_3parentbaby_inline_rev.png

Doctors combine the mother’s nucleus, the donor’s egg, and the father’s sperm to produce a viable embryo for the mother to carry to term. || (Source: Science News)

Meanwhile, the promise of these techniques has begun to attract legislative and regulatory attention worldwide. Last year, the UK Parliament carved out a specific exemption from its prohibition to allow MRT. This legislation addresses a number of practical matters, including the right of the child to request medical information about the donor, and it clarifies that the child is not related to the donor despite the contribution of genetic information. Earlier this year, a report commissioned by the FDA recommended allowing clinical trials of MRT in the United States.

This technique and others like it certainly merit close regulatory attention due to the implications they have for our collective genetic heritage and the uncertainty regarding their side-effects. However, it is impossible to ignore the treatment potential of these techniques in the case of diseases like Leigh syndrome. These developments shine a negative light on the restrictive reproductive landscape in Canada. The embattled AHRA provides neither the flexibility nor the clarity needed to confront these new regulatory challenges. Patients, medical professionals, and the public deserve clear rules that properly manage the risks while securing the benefits associated with this promising new medical frontier.