Mental Health and Matters of Life and Death: Concerns About Expanded Eligibility for MAID
Few social policy decisions have elicited as much impassioned debate as Canada’s 2016 Medical Assistance in Dying (MAID) legislation. Proponents of the law lauded it for permitting a person to exercise autonomy and self-determination to end their life in a manner that prevents further pain, suffering or danger. Critics of the legislation, including some members of the disability community, suggested it signals that some lives are less worth living than others and does not adequately protect the vulnerable.
A ruling by Quebec’s Superior Court in the 2019 Truchon case prompted the federal government to make amendments to the MAID Act that further expanded eligibility criteria.
In this blog post I briefly outline the history of MAID and the legal reasoning that underpins it, highlight recent amendments, and explain why I, like some members of the disability community, have significant concerns about the direction we appear to be headed with this policy.
The History of Assisted Suicide in Canada
Suicide and assisted suicide were prohibited in Canada’s Criminal Code in 1892. Although the prohibition on suicide was lifted in 1972, assisted suicide remained criminalized until 2016 when the MAID Act came into force.
In the interim, there were several high-profile cases which brought assisted suicide (and the related but distinct concept of euthanasia) to public attention. Most notably, Sue Rodriguez, who had been diagnosed with amyotrophic lateral sclerosis (ALS), brought a case to the Supreme Court of Canada in which she contended that section 241(b) of the Criminal Code, which prohibited assisted suicide, was unconstitutional.
In 1993, the Court ruled 5-4 in favour of maintaining the prohibition, noting that decriminalizing assisted suicide could lead to abuses. The dissenting justices contended the prohibition was arbitrary because an able-bodied person could legally choose to end their life at a time of their own choosing, but a disabled person would be deemed to have committed a crime when seeking assistance to perform the same action.
It would be more than 20 years before the Supreme Court considered a similar case, Carter v. Canada (Attorney General). By this time, however, there were multiple national and international examples of legal assisted suicide or medical assistance in dying laws. The Court ruled unanimously that physician-assisted dying was constitutional in certain situations.
MAID and its recent amendments
In response to the Supreme Court’s ruling, the federal government created the MAID Act to limit medical assistance in dying to certain circumstances where there was a “reasonable foreseeability of natural death.”
In 2019, Quebec’s Superior Court ruled the eligibility requirements in the law were too restrictive and unconstitutional. This decision was not appealed and instead the federal government tabled amendments to MAID in form of Bill C-7. The revised law stipulates that a person who wishes to receive MAID must satisfy the following eligibility criteria:
- be 18 years of age or older and have decision-making capacity
- be eligible for publicly funded health care services
- make a voluntary request that is not the result of external pressure
- give informed consent to receive MAID, meaning that the person has consented to receiving MAID after they have received all information needed to make this decision
- have a serious and incurable illness, disease, or disability (excluding a mental illness until March 17, 2023)
- be in an advanced state of irreversible decline in capability
- have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable
Notably, the changes opened a second track of eligibility for people with illnesses that may not result in a reasonably foreseeable natural death but nonetheless cause them intolerable suffering. It also permitted applicants who were deemed eligible for MAID to receive it if they later lost the ability to consent.
The government provided a two-year exclusionary period for mental illness as a recognized reason for seeking medically assisted death. The delay was meant to provide time for experts to offer recommendations for protocols, guidance, and safeguards to be put in place to protect individuals suffering from mental illness who are making potential end-of-life decisions.
Concern for people with mental illnesses
While some activists who support the expanded eligibility requirements hail the changes as a victory for personal choice, autonomy and self-determination, critics have expressed some significant reservations.
First, unlike terminal physical illnesses, the trajectory of a person’s experience with mental illnesses is far from certain. Disability advocates have stressed that there is an enormous backlog for access to many mental health services that could greatly improve a person’s ability to manage their mental illness. They fear people on years-long wait lists for help may opt for death when a better quality of life looks to remain out of reach.
Moreover, there are fears that persons in the depths of a period of suicidality may believe their condition is irremediable when they will at some point regain a desire to live. For example, persons who acquire significant physical disabilities often experience a period of severe depression and mental anguish as they adjust to their new situation. Yet in many cases, these people emerge from this period accepting that they still have a life worth living as they adapt and find sources of support for their recovery.
Some disability advocates contend that rather than providing medically assisted options for dying, society and the government should be investing in programs and infrastructure that demonstrate people with disabilities and their needs are valued.
From my own perspective as a personal injury lawyer, I have seen first-hand how medical professionals can express vastly different opinions when diagnosing mental illness and evaluating functional disability.
The arbiter of eligibility requirements for people with mental illnesses who may seek medically assisted death will be faced with a much higher potential for error. And, unfortunately, if the opinion on a person’s mental illness is wrong but acted upon, there is no way to reverse or correct it. There is a fundamental tension here between subjectivity of the judgment calls and the finality of the outcome.
The road ahead
Reasonable people can disagree about how MAID has been designed and how it works in practice while still broadly agreeing that people with disabilities, including people with mental health conditions, should be valued by our society.
On May 13, 2022, the expert panel on MAID and mental illness tabled its final report providing discussion and recommendations on how to safely expand eligibility to people whose sole reason for seeking medically assisted death is mental illness. In the next few months, we will learn what elements of the report the government has accepted and just what safeguards will be put in place to protect people with mental illnesses who are considering ending their lives through MAID.
Whatever systems are enacted, we must be ready to scrutinize the outcomes to ensure the most vulnerable among us are protected from harm.
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