In the past week, a Canadian law regulating the exercise of the right to medical assistance in dying (that right being established by a Supreme Court of Canada decision known as Carter) has come into effect. Although I host far from the most regular blog on FtB, and although that inevitably results in fewer comments here than elsewhere, I’d like to try to host a discussion on an important topic of ethics and law: whether treatment-resistant anxiety disorders and/or treatment resistant depression should have access to medically assisted suicide.
In Canada, the Carter decision has established that the privacy/autonomy right so crucial to the Supreme Court’s decisions establishing a right to abortion access in the Morgentaler cases also encompasses the right of “grievously and irremediably ill persons” to gain access to advice and medications necessary for competent assisted suicide as well as to further medical aid in dying (sometimes called MAID though something about this acronym sounds unpleasantly inappropriate to me). Grievous and irremediable illness is not a phrase that automatically excludes mental illness, and indeed one person has already gained access to medical aid in dying on the basis of severe and treatment-resistant mental illness.
However, this first person known to have access to medical aid in dying on the basis of psychiatric illness suffered from a conversion disorder. Conversion disorders are so called because although as best can be discerned by physicians the symptoms arise from a psychiatric basis, the psychiatric and/or psychological problems manifest in distinctly physical ailments: literal paralysis and serious digestive difficulties that can result in malnutrition are two of the most severe noted effects of conversion disorders.
The Carter decision does not require (as does the state of Oregon’s Death With Dignity Act, see ORS 127.800) that natural body processes will foreseeably lead to death as a result of the grievous and irremediable illness. In Oregon, you must have a prognosis limiting your expected lifespan to 6 months. In Canada, this is not true. Thus for diseases that dramatically affect quality of life, are incurable, and may indeed lead to death but with ordinary treatment will only do so in a matter of years, if not longer, Canadian law now provides for the possibility of medical aid in dying.
Mental illness is nominally handled differently in the Carter decision and in Oregon’s DWDA: in Oregon’s law mental illness cannot make you eligible, except in the possible case of a person whose body is literally failing as a result of a conversion disorder or something similar. Though one cannot be eligible for use of the DWDA’s provisions on the basis of mental illness, mental illness is not automatically a bar to such access for Oregonians who have a terminal illness co-occur with a psychiatric one. The Canadian approach, as required by the Carter decision and implemented by the Liberal bill C-14, is significantly different.
In Canada, a psychiatric illness on its own can qualify a person for medical assistance in dying even where the illness is not directly causing body, organ, or metabolic failures that will (unchecked) result in death. In practice, however, the courts have to date only approved one petition for medical aid in dying based on mental illness, the case detailed above. A similar case in which a man asked for medical aid in dying on the basis of a similar cluster of mental illnesses (including a conversion disorder causing physical symptoms sufficient to cause true distress in anyone regardless of ultimate cause) is known to have been denied. With two data points it’s not yet possible to establish a pattern in how Carter and C-14 will be implemented, but it may be that the cases appeared distinct to the courts in part because the physical symptoms for the man whose petition was denied were less severe and that more of the distress emphasized in court arguments by the petitioner was related to psychological suffering. Another factor may be that the person whose petition was approved was over 50 while the person whose petition was denied was under 30.
Despite the paucity of data, however, I’m willing to speculate that in practice the interpretation of Canadian law is going to look more like Oregon law than first appears: psychiatric conditions that do not cause death on their own (even if they frequently cause behaviors that can result in death) are much less likely to be accepted as legitimate grounds for medical aid in dying.
But should that be the case? We know that depression, PTSD, and anxiety disorders come in more severe and less severe forms. We know that for some persons symptoms will pass on their own. We know that some therapies can reduce the time required for symptoms to pass, make recurrences less frequent, and make recurrences less severe. And we also know that for some persons the suffering continues largely unaffected by available therapies.
There are cases where enough time and effort has passed that qualified medical practitioners can competently assert that there is no longer any untried treatment with any likelihood of success. In those cases, if and when a patient requests medical aid in dying, should that aid be provided? In Canada the law does not preclude it in clear language, though practice appears to frown on such a possibility. In Oregon the law does preclude it.
Is one of these approaches better than the other?
I ask a question about law, but fundamentally this is about ethics, love, and community. What should the law be if that law is to promote the best society we are currently capable of creating?
I would not want a law that devalues the lives of those of us with mental illnesses, but I’m not sure that treating ALS differently from the most extreme and untreatable depression actually accomplishes a “valuing” that would be absent if treated the same. It was argued that permitting medical aid in dying for obviously terminally ill cancer patients devalued those cancer patients, but I think evidence shows this fear turned out to be unfounded. Why should it be different for extreme and untreatable anxiety disorders?
It should be noted and considered that the person mentioned above who was denied medical aid in dying eventually died of a medication overdose anyway, but because of the lack of legal sanction there were increased risks taken and it would be impossible to say one’s final goodbyes without legal risk to people who learn about a planned death. The loving person who wishes to end hir own life, then, is forbidden in practice from aiding friends and family in accepting the decision and thus lessening the harm to a community.
Illegal suicide carries the risk of failure that is nonetheless medically damaging, prevents communication around end-of-life decisions, and risks increased harm to community. These risks apply just as much to suicides in response to mental illness as they do to suicides in response to cancers or other non-mental illnesses. The logic for reducing these risks – and eliminating them where possible – is every bit as compelling for those suffering “grievous and irremediable” anxiety or depression as it is for those suffering from similarly extreme conversion disorders.
What do we gain, then, from excluding non-fatal anxiety or depression from the category of qualifying conditions? Is that gain sufficient to justify the current state of Canadian law?
In any comments you choose to contribute, please remember that we are speaking about conditions both grievous and irremediable. Comments that choose to conflate those conditions with less serious conditions or with remediable conditions may be moderated/edited and/or deleted by me.
As someone who lives in Oregon and recently had a family member who died of a chronic and extremely painful illness, yeah, our law is pretty good. The screening process is robust but not unfair. I can’t recall any news stories about someone getting assistance when they shouldn’t have, or major protests about the law.
That said – the primary concern for the way the law was written was to avoid any possible libality for the physician or hospital treating the patient. The only people who can take advantage of it are folks who are definitely going to die soon, and it’s going to be very unpleasant.
Putting morality and even ethics aside, if Canada implements this ruling in a substantially different way from Oregon it may make it impossible for anyone to use it without putting doctors and medical providers at risk of lawsuits or charges of murder. I agree that there are mental illness which need the relief assisted suicide can provide just as much as physical illnesses, but practically speaking I can’t see a doctor or hospital willing to regularly put themselves at risk for a non-immiently terminal illness.
How do you think this law will work in cases of progressive dementia?
@chigau:
Interestingly, neither “grievous” nor “irremediable” directly addresses suffering. Dementia sufficiently advanced does not necessarily involve suffering, but the anticipation of loss of competence can.
In any case, many forms of dementia are irremediable and undeniably grievous – in that the impact on the person is severe – so severe we have honest debates on whether the “person” is still alive though the body continues to function.
@both chigau and Daniel Williams:
The Carter decision requires that doctors not be punished for providing medical aid because the action successfully sought access to medical aid in dying. One cannot have medical aid in dying merely by decriminalizing suicide. There has to be a legal environment that permits a reasonable physician to know when there is and isn’t legal risk in providing that aid. Currently courts are largely having the final say there, though the recent bill would establish regulatory processes sufficient to avoid court petitions in the majority of cases.
However, both the Carter decision and C-14 presume a petitioner competent to make a decision around end-of-life care, around abstaining from end of life care and/or around death.
Thus with progressive dementia, a person might very well successfully petition for medical aid in dying on the basis of progressive dementia if the petition was made while that person was still competent to make it. However, if the decision is avoided long enough, the petitioner would be ineligible to seek medical aid in dying by virtue of becoming incompetent (legally) to make that decision.
That said, the law will not put doctors or medical providers at risk of lawsuits or murder charges so long as it is followed. This is required by the nature of the Carter decision (can’t have access to medical aid in dying if all the providers are afraid of jail) and C-14 was (in part) a way to legislatively codify the details of the process that would immunize providers. Providing exact details of such a process is traditionally beyond the scope of the SCC’s power. The SCC defines the right, the Parliament establishes the statutory framework necessary for implementation of that right, and then the executive addresses (through regulation) any ambiguities in statute revealed later during actual use of the right.
Because Carter came first and this was not first a legislative proposal, there is not merely a statutory pathway to providers’ immunity, but a constitutionally established need for providers’ immunity. Because of this, where a provider is arguably operating within the law but not certainly doing so, it is very likely that the provider in that case will be held not liable and then any problem in statutory clarity related to that case will be brought up before parliament (who would presumably pass amending legislation) so that in the future providers in somewhat similar situations will either be certainly within the law or certainly outside it.
As someone who is researching medically assisted suicide for a mental condition which is grievous and, as far as I can tell, irremediable, I support such a thing being legal. Alas, I live in neither Oregon nor Canada, so there are no laws to protect my decision. Worse, I find it very difficult to do research because of the very condition for which I am seeking medically assisted suicide in the first place, forcing me to rely on family and friends who in turn might be implicated for knowing in advance.
All my empathy, Jessie.
Since this is the internet, I wish not to disclose from which condition I suffer from, but not to a point that I’d contemplate suicide, but I also don’t insinuate, that you did.
The one thing you did not mention is, that besides the state of mind and quality of life, the option to have a humane death is also connected to the inability of treating pain and suffering as a consequence from both the illness and its treatment. A condition not equally present in mental illnesses. I know the times when I did not knew a way out (so I should correct myself to saying I’ve no suicidal thoughts now, but I did in my teens). I think the non-inclusion of these illnesses is because from an objective standpoint, the lack of general physical pain that can’t be treated is not present.
Well, I think suicide should be legal period as a *starting point*. The question of what suicides *doctors* should be allowed to assist with is a bit more difficult, because doctors have their own ethical standards, and I don’t really honestly know them.
Why is it illegal anyway? I don’t know of a single successful prosecution against a dead person for committing suicide, so there’s something very odd about that law. I think it’s a leftover from a time before separation of church and state and it needs to be gotten rid of.
If we consider the situation you mention where the case was rejected and the patient committed suicide anyway, I think it is critical that the family and friends at least know that they are safe from punishment for simply going along with the wishes of the patient, so that he *can* say his goodbyes without threat of his loved ones getting in trouble. You should never be at any legal risk simply because you know someone else is planning to kill themselves; that’s not cooperation or assistance, it’s simply acquiescence and it must be made legal.