Assisted Dying for Mental Illness, Minors Proposed in Canada

Nancy A. Melville

March 11, 2016

Death-with-dignity laws are slowly coming under consideration in the United States, and new recommendations on physician-assisted dying that will include controversial stipulations regarding mental illness and "mature minors" may soon become federal law in Canada.

In early 2015, Canada's Supreme Court struck down the country's ban on physician-assisted death and gave the country's parliament 1 year to enact new laws, a deadline that was subsequently extended until June 2016.

The new recommendations, which were presented in a report of the Special Joint Committee on Physician-Assisted Dying to lawmakers last month, would allow medically assisted death for intolerable suffering due to physical illness as well as psychiatric illness, as is currently permitted in some European countries, and would eventually extend these rights to "competent minors" younger than 18 years.

The report asserts that the recommendation regarding youth is in line with the Canadian Supreme Court's argument that "minors have a right to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding."

Although the Canadian Pediatric Society opposes this, the committee argues that minors should not be denied the rights granted to adults.

"Given existing practices with respect to mature minors in health care and the obvious fact that minors can suffer as much as any adult, the committee feels that it is difficult to justify an outright ban on access to medical assistance in death for minors," the report states.

The committee acknowledges the even murkier policy of including suffering from psychiatric illness as a reason for assisted death.

"The committee recognizes that there will be unique challenges in applying the eligibility criteria for medical assistance in dying where the patient has a mental illness, particularly where such an illness is the condition underlying the request," they write.

"However, where a person is competent and fits the other criteria set out by law, the committee does not see how that individual could be denied a recognized Charter right based on his or her mental health condition."

Significant Challenges

Tarek Rajji, MD, chief of geriatric psychiatry at the Centre for Addiction and Mental Health (CAMH), in Toronto, told the committee that mental illness may be "grievous" to an individual and that symptoms can cause long-term psychological and physical suffering.

Dr Rajji told Medscape Medical News that he agrees with the committee that such cases would present significant challenges.

"[The recommendation] is radical, as the issues around capacity and irremediableness are very complex in mental illness and need very careful consideration, and this population is a particularly vulnerable population," he said.

"At CAMH, we don't oppose the inclusion of mental illness, on the basis of nondiscrimination, but that is not the only consideration we need to think through in relation to mental illness."

Critical considerations in assessing a request for medical assistance in dying include factors such as the patient's capacity to make the decision, the suffering from a grievous and irremediable illness, intolerable suffering caused by the illness, and a failure to respond to a treatment that is acceptable to the person, Dr Rajji explained.

He noted that despite supporting the fundamental right to include mental illness, cases that meet the criteria may be uncommon.

"Given that mental illness is typically not terminal and with a recovery-based approach to treatment and patient-centered care, we have trouble at CAMH seeing a situation where a person with mental illness would meet the criterion of suffering from irremediable illness."

Encouraging Suicide?

As reported by Medscape Medical News, the inclusion of psychiatric suffering in assisted death laws in European countries such as Belgium has sparked significant debate, particularly with research showing that many individuals who have a history of suicide attempts later regret taking such action.

"Most people who consider or attempt suicide never die by suicide [and] the conviction that there is no alternative but to end their lives often passes with the resolution of an acute crisis," medical ethicist Paul S. Applebaum, MD, told Medscape Medical News.

"By making the option of suicide easier, ie, a painless, certain death with medical assistance, the Dutch, Belgian, and similar laws may encourage many people, especially women, who would not have ended their lives to do so," said Dr Applebaum, Dollard Professor of psychiatry, medicine, and law and director of the Division of Law, Ethics, and Psychiatry at Columbia University College of Physicians and Surgeons, in New York City.

Another controversial recommendation would allow individuals who face significant diminishment of mental or physical capacity due to medical conditions to request assistance in dying in advance. In such cases, death would be carried out either when the patient later becomes incompetent or before their symptoms set in but after the diagnosis is confirmed.

The recommendation states: "That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition, but before the suffering becomes intolerable."

The recommendation was strongly supported by the advocacy group Dying With Dignity Canada, which recently published a poll indicating that up to 80% of Canadians and 88% of those in the disability community agreed that individuals with a serious illness should be able to make advance requests for physician-assisted dying.

In the report, Wanda Morris, Dying With Dignity Canada's outgoing CEO, underscored the fact that the measure represents compassionate consideration for such patients' needs.

"In their decision, the Supreme Court justices wrote that to force someone to choose between undergoing a premature, perhaps violent, death and enduring prolonged suffering is a cruel choice," she said.

"We submit that unless the committee recommends that informed consent be allowed by advance consent, the injustice will continue."

An example of such suffering is a patient facing Alzheimer's disease–related dementia, which is incurable, she said.

"Nowhere does this play out more than around the issue of dementia. I think that what we do will actually be life-affirming if we are able to provide a clear advance consent mechanism," Morris said.

Recommendations "Radical" and "Dangerous"

Dr Rajji noted that, as with psychiatric illness, cases involving an advance request for medical assistance in dying would also be challenging.

"The issue of advance request still requires further consultation, since not only capacity changes over time with a neurodegenerative illness but state of mind and the subjective experience of suffering may change."

Other recommendations in the report include that the approval of two independent physicians be required to grant requests; that a request for assistance in dying must be in writing and witnessed by two others who have no conflict of interest; that physicians, nurses, pharmacists, and other healthcare providers be exempted from criminal code provisions; and that a process be established to protect healthcare providers' freedom of conscience.

Response to the report was divided along political lines, with Conservatives issuing a dissenting report in opposition, calling the recommendations "radical and dangerous," particularly the recommendation to include psychiatric illness.

"If an individual with a mental illness does not have capacity to even buy a cell-phone contract, how could they have capacity to give permission to end their life prematurely?" said Conservative Member of Parliament Mark Warawa in a press conference on the report.

Canadian lawmakers have until June 6 to craft new legislation to regulate physician-assisted dying; otherwise, the law set forth in the Supreme Court's ruling will stand.

Special Joint Committee on Physician-Assisted Dying: Medical Assistance in Dying: A Patient-Centred Approach. Full text

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