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.