Should Mentally Ill Patients Have the Right to Euthanasia?
Canada plans to grant this right, with safeguards.
Posted April 21, 2021 | Reviewed by Chloe Williams
- Medical Assistance in Dying (MAiD) by lethal prescription or voluntary euthanasia has been legal in Canada for terminal illness since 2016.
- In March 2021, in compliance with court rulings, the law was revised to permit MAiD for non-terminal, grievous, irremediable medical conditions.
- In 2023, the law will also apply to people suffering from mental disorders, which raises many ethical questions.
- Cases should be considered on their individual merits and safeguards should be put in place, according to a psychiatric association.
“It surely is a long agonising wait before a physician allows euthanasia, because there is always something left to try to make your suffering more bearable. Recommendations from two other physicians are also needed, and, in the meantime, time goes by and you're still suffering. Moreover, the people around you cannot believe that you want to die, because you're looking so good, so no one would allow you to die. So when I finally got the permission to die, that was a huge relief.”
—Testimonial from a 52-year-old woman with a chronic mental illness who requested euthanasia in Belgium1
In March 2023, Canada will begin allowing people with intractable mental disorders the option of voluntary euthanasia. To understand how we got here, and to evaluate whether this is something terrifying and dangerous or enlightened, let’s go back a few steps.
On February 6, 2015, in a unanimous and carefully reasoned decision referred to as Carter v Canada, the Supreme Court of Canada struck down the prohibition on assisted suicide and voluntary euthanasia, finding it to contravene the Canadian Charter of Rights and Freedoms. In so doing, it gave Canadian adults who are mentally competent and suffering intolerably and enduringly the right to a doctor's assistance in dying.
In June 2016, after delays, Canada’s parliament enacted legislation as required by the Supreme Court ruling. Bill C-14 was passed, allowing what became referred to as Medical Assistance in Dying (MAiD). C-14 added a stipulation not present in the Supreme Court ruling: 2 In order to qualify for MAiD, a person’s natural death must be “reasonably foreseeable” — generally understood to mean the applicant must be terminally ill.
A request for MAiD must of course be a voluntary one that is not the result of outside pressure or influence, and the person must be deemed competent to provide informed consent. 3
Eligible patients could either obtain a lethal prescription to self-administer at a time of their choosing or request euthanasia administered by a trained doctor (or specialist nurse).
The overwhelming majority of Canadians undergoing MAiD have chosen euthanasia (which at the time of writing is not legal anywhere in the U.S.) rather than a self-administered prescription (which is permitted in several U.S. states). 4 In the procedure, the person is given an intravenous infusion that puts them to sleep in a matter of seconds, and from there within minutes into a deep coma, followed soon after by what is typically a silent, serene death. It can be performed at a time and place of the person’s choosing and is usually preceded by an opportunity for loving last words and goodbyes by those closest to them.
In Canada and those U.S. states where any form of assisted dying is legal, it has until now only been permitted for terminal illness. 5
Moving Beyond Terminal Illness
Predictably, the "reasonably foreseeable" natural death requirement of C-14 was challenged in the courts, as it had not been part of the original Supreme Court criteria. In September 2019, the Superior Court of Quebec struck down that requirement. In March 2021, after delays and dissent, the Canadian parliament passed a new bill (Bill C-7) making several changes to the 2016 legislation (Bill C-14), including eliminating the “reasonably foreseeable” limitation, in compliance with the court.
In allowing MAiD for non-terminal conditions, the government anticipated that this would open the door to applications for MAiD by patients having mental disorders as their sole underlying medical condition. The government had hoped to exclude this possibility until a planned parliamentary review could be conducted into this complex and difficult question. Such a review had been promised in the 2016 legislation. 6 But the Canadian Senate forced the government’s hand and the exclusion of mental disorders had to be dropped when Bill C-7 was finally passed in March 2021—with a compromise of a 24-month delay dropping the exclusion. This would allow the government time to work out what kinds of safeguards would be required.
Mental Disorder as a Sole Underlying Medical Condition
The government knew that if it had kept the mental disorder exclusion after the “reasonably foreseeable” natural death requirement was eliminated, the exclusion would not withstand legal tests. Such an exclusion would almost certainly be found to be discriminatory and an infringement of human rights. The 2015 Supreme Court of Canada ruling, which had not restricted assisted dying to terminal illness in the first place, had referred to both physical and psychological suffering.
In fact, even Bill C-14 had not specifically excluded mental disorder as a sole underlying medical condition (MD-SUMC). It had simply been unlikely that someone with a MD-SUMC would meet C-14’s criteria because, in most mental disorders, natural death is not reasonably foreseeable in the absence of other medical disorders. But there have been many cases of people with mental disorders who additionally were terminally ill, for example due to cancer, who met the C-14 criteria and received MAiD after being found competent to make that choice. 7 And in the month before Bill C-14 was passed in 2016 with its reasonably foreseeable natural death restriction, a case of MD-SUMC (a woman chronically disabled by severe conversion disorder) had actually been approved for MAiD by the Alberta Court of Appeal.
There has been consistently strong popular support for MAiD in Canada. There is even popular support for MD-SUMC, 8 but psychiatrists are split on the issue. 9
So far, despite initial fears that among terminally ill patients it would be poorer people or people with less access to adequate palliative care who would opt for MAiD, the data so far show the opposite: MAID for terminal illness has been chosen more often by wealthier, more educated people who have good access to palliative care. 10 Nevertheless, MAiD for MD-SUMC might be a different story entirely. And there have been concerning case reports 11 of “due care not met” (due to violations of procedural criteria) from Belgium and the Netherlands, where euthanasia for MD-SUMC has been legal for a number of years. 12
So here we are, with less than 24 months until MD-SUMC becomes legal grounds in Canada for MAiD.
More Questions Than Answers
How will suicidal urges that are frequently symptoms of the distorted thinking of psychiatric disorders be differentiated from a rational, reasonable choice that is consistent with the person’s life values? 13 How should suicide prevention campaigns be squared with the availability of medically assisted death for people with mental disorders? How will we confidently determine if a person is in a state of mental competence to make such a decision? How will vulnerable people be protected from subtle psychological and social pressures that might sway them toward feeling that they are a burden to their loved ones and to society? How shall we prevent the very existence and availability of an officially sanctioned medically assisted death for mental disorders from conveying a sense of hopelessness to patients regarding the likelihood of successful treatment of their condition? And how can we even predict whether a seemingly irremediable condition will continue to be irremediable? 14
And yet, how can we justify discriminating against people with mental disorders and suggesting to them that their suffering is more tolerable than that of people suffering from physical disorders? And how do we paternalistically tell them that we do not consider them under any circumstances to be competent to determine their own life values and to appraise whether their life is worth living? How many of those people will end up dying alone by suicide in ways that are much more traumatizing and stigmatizing for their families?
Charting a Way Forward and Developing Safeguards
The Quebec Psychiatric Association has taken the lead in Canada in developing a discussion paper on access to medical assistance in dying for people with mental disorders. In it, they state: “Patients whose sole underlying medical condition is a mental disorder should not be systematically 15 excluded from MAID on the basis of their diagnoses.” They add that the Association “does not intend to promote MAID [for] MD-SUMC, but recognizes the suffering of patients and their right to make their own choice like any other person.” Each case should be comprehensively assessed on its own merits. They envisage qualifying cases will be fairly rare.
The Association suggests a number of precautions. 16 For example, it is generally agreed that a desire for MAID for MD-SUMC would need to be consistently maintained over a long period (how long is a matter of debate), to reduce the risk that it is a temporary suicidal symptom of an episodic illness. Family should be consulted in the assessment process wherever possible. 17 And there must be a careful system of procedural oversight.
Respect for Autonomy and Control
The defining ethical principle for MAiD is respect for the autonomy of a competent individual. When competence is impaired and a person’s wish to die is significantly distorted by a temporary mental state, that person needs to be protected from their own self-destructive impulses. In such cases, the ethical principle of beneficence overrides the principle of autonomy—usually just temporarily. Beneficence means that a practitioner acts in the best interest of the patient, even against their wishes at that time (paternalistically, one might say). Doctors do this routinely in cases of involuntary hospitalization and in cases of declarations of incapacity to consent to treatment. In most cases, freedom and autonomous decision-making is restored to the patient within a fairly short period of time, as the patient returns to their usual baseline. 18, 19
Giving a chronically suicidal person a feeling of control over their life could even paradoxically help them to make a choice to try for longer to see if they can find a way to live. In fact, the 52-year-old woman whose testimonial was quoted at the beginning of this post went on to say:
“I have to admit that since my request to die was considered to be acceptable, I'm experiencing better moments and I'm also in doubt now. I'm still in therapy and there we discuss other available options.”20
1. Verhofstadt, M., Thienpont, L., & Peters, G. (2017). When unbearable suffering incites psychiatric patients to request euthanasia: Qualitative study. British Journal of Psychiatry, 211(4), 238-245. https://doi.org/10.1192/bjp.bp.117.199331
2. The landmark Supreme Court ruling had in fact been based on cases of two women with non-terminal illnesses.
3. Bill C-14 criteria:
—must be an adult (at least 18 years old) who is mentally competent (“capable”) to make health care decisions for themselves
—making a voluntary request for medical assistance in dying which does not result from external pressure
—giving informed consent to receive medical assistance in dying
—eligible for health services funded by a government in Canada
—having a grievous irremediable medical condition, defined as:
-- a serious and incurable illness, disease or disability
-- being in an advanced state of irreversible decline in capability
-- experiencing enduring physical or psychological suffering that is intolerable to the person and cannot be relieved in a manner that they consider acceptable.
-- their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. (This criterion, which had not been part of the original Feb 2015 Supreme Court of Canada ruling, was not included in the Bill C-7 criteria of March 2021).
[CLICK 'MORE' TO VIEW FOOTNOTES 4-20]
4. There are many reasons for this overwhelming preference, including the speed, serenity and practically 100% certainty of the procedure. Suicide by self-administered prescription on the other hand, which is legal in several U.S states and the District of Colombia, carries a risk of being drawn out or failing. Euthanasia is not legal in the United States. It is argued that it is too reminiscent of involuntary Nazi euthanasia programs.
5. Though, in Canada the C-14 criteria were slightly more loosely defined as a serious illness, disease or disability in which natural death has become reasonably foreseeable. This does not strictly mean only terminal illness. For example, by some interpretations very elderly people could also qualify.
6. As a first step toward this, a comprehensive report was drawn up in 2018 by the Council of Canadian Academies: “The State of Knowledge on Medical Assistance in Dying Where a Mental Disorder Is the Sole Underlying Medical Condition.” At the time of enacting Bill C-14 in 2016, the government had also committed to a parliamentary review of this question to begin five years after the legislation was adopted. This review had not yet started by the time the new bill, C-7, was passed in March 2021, but the government made a new commitment with the passage of C-7 that this parliamentary review would begin within 30 days of the new bill being adopted.
7. Lewis, R. “Depression and MAID: Terminally ill patients are often depressed. But that doesn’t mean they’re incompetent.” Healthydebate.ca, Feb 21 2018.
8. Ipsos poll conducted on behalf of Dying with Dignity Canada, Feb 2021.
10. Downar, J., Fowler, R. A., Halko, R., Huyer, L. D., Hill, A. D., & Gibson, J. L. (2020). Early experience with medical assistance in dying in Ontario, Canada: a cohort study. CMAJ : Canadian Medical Association journal = journal de l'Association medicale canadienne, 192(8), E173–E181. https://doi.org/10.1503/cmaj.200016
11. Miller, D. G., & Kim, S. (2017). Euthanasia and physician-assisted suicide not meeting due care criteria in the Netherlands: a qualitative review of review committee judgements. BMJ open, 7(10), e017628. https://doi.org/10.1136/bmjopen-2017-017628
12. Thienpont, L., Verhofstadt, M., Van Loon, T., Distelmans, W., Audenaert, K., & De Deyn, P. P. (2015). Euthanasia requests, procedures and outcomes for 100 Belgian patients suffering from psychiatric disorders: a retrospective, descriptive study. BMJ open, 5(7), e007454. https://doi.org/10.1136/bmjopen-2014-007454; Verhofstadt, M., Thienpont, L., & Peters, G. Y. (2017). When unbearable suffering incites psychiatric patients to request euthanasia: qualitative study. The British journal of psychiatry: the journal of mental science, 211(4), 238–245. https://doi.org/10.1192/bjp.bp.117.199331
13. There are also many other forms of distorted thinking that are symptoms of psychiatric disorders and which can impair a person’s rational ability to problem-solve and appraise their options (even without considering frank delusions)—for example, rigid obsessional thinking.
14. Outcomes of mental disorders can be quite unpredictable, since not only might some future treatment turn out to be at least partially successful, but also unforeseen changes in a person’s life circumstances (relationships, jobs, environment, etc.) can sometimes have profoundly positive impacts on what had previously appeared to be a dismal, hopeless state. Counterarguments to this being used to justify the wholesale exclusion of all patients with MD-SUMC from eligibility for MAiD are presented below in footnote 16. For examples of other arguments against MAiD for MD-SUMC see here, here, here, here, and here.
15. Emphasis mine. Systematic exclusion is in many ways the crux of the matter. The argument being made here is that people should not be judged and discriminated against on the basis of their diagnosis. Aside from the human rights issue (which is why the courts and parliament in Canada have decided that mental disorders cannot continue to be excluded), the question is whether it even makes sense to use diagnosis—itself an unreliable, often arbitrary and subjective judgement—as the line in the sand for these decisions. The argument articulated by the Quebec Psychiatric Association is that the assessment of eligibility for MAiD needs to be far more complex, nuanced and, above all, individualized rather than relying on a psychiatric diagnosis.
16. Quebec Psychiatric Association discussion paper on “Access to Medical Assistance in Dying for People with Mental Disorders,” November 2020. Here are just a few examples of precautions suggested by the Association: “the assessment of decision-making capacity should be longitudinal and conducted throughout the required clinical meetings and not based on a single meeting. Assessment must go beyond cognitive criteria and take into account emotional reactions, interpersonal dynamics and values resulting from the disorder, which negatively affect the patient’s ability to weigh options and make judgments.” Furthermore, "If a person’s suffering is based on irrational, dysfunctional, or pathological beliefs or emotions, it may not be appropriate to proceed with MAID." They acknowledge the great difficulty if not impossibility of being certain about the long-term prognosis of psychiatric disorders, but they note “It would be tempting to say that no action should be taken without a 100% level of certainty. The truth is that uncertainty can exist even in cases of physical illness as well as physical and psychiatric comorbidity. MD-SUMC cases are no exception.” (For example, the prognosis and irremediable nature of chronic pain conditions may also be uncertain). They suggest (without expecting 100% certainty) that “The incurability of a mental disorder could therefore only be determined at the end of a long process, after attempting several treatments and assessing their effects.” A majority of psychiatrists surveyed for the paper said that the person should have been living with the condition for at least five years before making a MAiD request, and many said ten years. The Association also proposes a structure for prospective oversight of the assessment process.
17. There may need to be exceptions to that rule in very occasional situations where the family is actually part of the patient’s problem in a destructive and obstructionist way.
18. In patients with cyclical / episodic disorders such as bipolar disorder, it is not unusual for treatment approaches to cycle between beneficence and autonomy. But wherever possible, patients have the right to autonomy and control over their own lives.
An increased emphasis on patient autonomy and choice will also serve to promote personal responsibility, which could be especially therapeutic for personality disordered individuals who undermine their own personal growth by repeatedly using threats of suicide to try to get others to assume responsibility for their own safety.
19. It is also worth noting that there are a great many life-and-death situations not involving mental disorders in which patients are allowed to make choices that doctors would consider profoundly irrational and indicative of extremely poor judgement—for example, refusing curative chemotherapy in favor of “natural” alternative therapies and spiritual “cures.” This of course is not the same as actively assisting the person to die, but it does illustrate that the right to autonomy is prioritized in many other life-and-death decisions even when the decision is clearly irrational and the patient is displaying extremely poor judgement. In cases of MAiD for MD-SUMC, a much higher bar will certainly be set in trying to ensure that the decision to request MAiD is rational and reasonable.
20. Verhofstadt, M., Thienpont, L., & Peters, G. (2017).