Under Canada's new law on medical assistance in dying psychological suffering cannot be the sole reason behind a request for an assisted death. Additional criteria requires that the individual is suffering from a “grievous and irremediable condition” and death must be “reasonably foreseeable”. It is for this reason that many organizations, including the B.C. Civil Liberties Association (BCCLA) and Dying With Dignity Canada, are at odds with Canada’s new law on medical assistance in dying. While it does not explicitly exclude those with mental illness, it contains barriers to eligibility.
Many people accept the exclusion of mentally ill patients, because they wrongly believe that all people suffering from mental illness are not competent, and therefore cannot make a decision to end their life. According to the Health Care Consent Act, people with mental illnesses have the right to make a decision about their treatment if they are capable. “Capable” means, he or she understands the information relevant to the treatment and appreciates the consequences of consenting or refusing the treatment. Shouldn't this policy then be extended to a decision regarding medical aid in dying? How can someone be capable of making decisions about all other treatments relevant to his or her illness, except the right to a safe and peaceful death?
Udo Schuklenk, Professor and Ontario Research Chair at Queen's University (Canada), found in his research on depression and assisted dying that unlike Canada and a few other jurisdictions, in the Netherlands competence is seldom brought into question. In his study, published in British Medical Journal, he found that "Suffering from a psychiatric disease such as a depression does not automatically preclude patients from being aware of what they are experiencing and of what their future prospects are."
Despite the large numbers of people suffering from mental illness, this category of patient has been denied access to MAiD. Recent polls show that the majority of Canadians, health practitioners and general public alike, are uncomfortable with extending the right to die to mentally ill patients.
- A Canadian Medical Association member survey found that of the 25% of the respondents who are willing to provide MAiD, only 22% would consider it for patients whose sole diagnosis is mental illness.
- A survey in Edmonton, Alberta found, “Seventy-five per cent of 356 people surveyed thought that assisted dying should NOT be made available to patients with treatment-resistant depression (TRD) - incurable chronic depression.
The Centre for Addiction and Mental Health (CAMH), in its submission to the Senate Committee, identified MAiD as it relates to mental illness as “an extremely complex topic”, but did not close the door on allowing it for irremediable psychiatric suffering:
From a legal perspective there is no difference between a mental illness and a physical illness. The Canadian Bar Association recently voted to urge the federal government to reconsider its exclusion of the mentally ill.
- urge the federal government to ensure that amendments to the Criminal Code align with all of the criteria established by the Supreme Court of Canada in Carter, including the eligibility of persons with a psychiatric condition;
- urge federal, provincial and territorial governments to ensure that persons with psychiatric conditions who seek medical assistance in dying are not faced with additional barriers by virtue solely of their psychiatric condition
There is an ongoing legal challenge to the bill and the federal government is researching how best to address the issues of mental illness, advance directives and mature minors.