From the Editor
Over the years, Readings have considered big papers and big essays. This week’s Reading considers big legislation.
Last Friday, C-14 was given Royal Assent, having finally achieved Senate approval, thereby becoming law.
“An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” is unlikely to be the end of this debate. Indeed, it is likely to be part of the beginning of a larger societal debate on death and medicine.
In this Reading, we look at C-14 and, as well, an essay by Dr. Sonu Gaind on mental illness and physician-assisted death.
“An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)”
Parliament of Canada, 17 June 2016 (Royal Assent)
Whereas the Parliament of Canada recognizes the autonomy of persons who have a grievous and irremediable medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in dying;
Whereas robust safeguards, reflecting the irrevocable nature of ending a life, are essential to prevent errors and abuse in the provision of medical assistance in dying;
Whereas it is important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled;
Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives;
Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities;
Whereas, in light of the above considerations, permitting access to medical assistance in dying for competent adults whose deaths are reasonably foreseeable strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other…
So begins C-14 – “An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).” The selection may seem a bit odd. Readings typically deal with the latest in the literature, not the latest in the legislature. And my legal expertise is limited (watching every episode of LA Law doesn’t count). But C-14 isn’t just the biggest legislation of the year in terms of its potential impact on our patients, it could be the biggest legislation of the decade.
A step back – As you will recall, in February 2015, the Supreme Court of Canada ruled on Carter v. Canada, a case involving an elderly woman, Kay Carter, with intractable pain secondary to spinal stenosis.
In their unanimous ruling, the Justices open:
It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. We therefore allow the appeal. (Emphasis added.)
The Supreme Court also set a deadline, requiring action by early 2016 – though an extension was made, requiring new legislation to be passed by early June. C-14 is the federal legislation to address the court ruling.
People often think that physician-assisted death is meant only for those at the end of their lives – the patient with end-stage pancreatic cancer, as an example. It should be noted that a “grievous and irremediable medical condition” could have a broader meaning. And, indeed, in countries like Belgium, people with mental illness (like treatment-resistant depression) have been able to access physician-assisted death. The House-Senate joint committee also interpreted that phrase to allow those with mental disorders to the death option in their report released in the spring.
Now, let’s consider the Act itself. The Act speaks to five conditions to meet for a person to be eligible for “medical assistance in dying.” Among them: a person needs to be 18 or older; the request is made voluntarily; informed consent is received; they have a “grievous and irremediable medical condition.”
What constitutes a “grievous and irremediable medical condition?” 242(2) speaks specifically to this:
Grievous and irremediable medical condition
(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Clearly this definition is narrower than it could have been. For those of us treating people with mental illness, the definition would seem to exclude many of our patients. After all, the Act states that: “their natural death has become reasonably forseeable…” (Courts will interpret that phrase over time, but it seems unlikely to include a person who is physically healthy but struggling with, say, a major depressive episode.)
The legislation also contains “safeguards” including that “another medical practitioner or nurse practitioner” (other than the clinician carrying out the task) determines that the person is eligible and thus capable. There is also a ten-day wait.
This legislation is deeply controversial. Some see it as being too narrow, and have questioned whether C-14 violates the ruling of Carter v. Canada. Others see the legislation as failing to provide enough adequate safeguards (note, for example, that there are no requirements to offer palliative care counseling, for example).
A nice round-up of reaction, put together by CMAJ, can be found here:
The point of this Reading – like all Readings – is to stoke debate, not to advocate a position.
A few thoughts:
1. Regardless of your view on this issue, we can all agree that the legislation will change the way Canadians engage the health-care system.
2. In terms of psychiatric patients, the narrower definition of “grievous and irremediable medical condition” likely means that many patients with mental illness wouldn’t be able to access medically-assisted death. As I’ve already noted, a person with treatment-resistant depression, for example, may well have psychological suffering but would not have a natural death that is “reasonably foreseeable.” That said, there are people with mental illness who may be eligible. A literature exists on palliative care for advanced eating disorders, for instance.
3. In terms of the practice of psychiatry, decisions around capacity may involve psychiatrists but that isn’t required by the law (the legislation only requires a medical doctor or nurse practitioner to determine capacity). Remember, in Canada, second opinions for capacity for treatment usually involve psychiatry; in some ways, this is a break from the usual clinical practice.
4. As we move towards implementation, there are opportunities to introduce safeguards. C-14, after all, is a framework; provincially and locally (hospitals and other institutions) can add in details. For example, nothing would prevent a hospital from, say, requiring that capacity determination include a psychiatrist provided that such an opinion is provided in a timely manner. Hospitals could also provide palliative-care counseling to enable patients to make more informed decisions. The legislation doesn’t require such safeguards but it doesn’t prevent them either.
Medically-assisted Dying and Mental Illness
“How mental illness complicates medically assisted dying”
K. Sonu Gaind, The Globe and Mail, 30 May 2016
Do no harm. How do we square this guiding tenet with medically assisted death? Which is the greater harm – helping a person to end his life, or allowing continued suffering when he seeks death?
When it comes to mental illness, it is even more complicated. The 2015 Supreme Court decision emphasized the need to protect the vulnerable from seeking suicide at a time of weakness. Less clear is how we actually do that.
Mental illness can affect how a person thinks. Depression fuels negative self-thoughts, self-blame, hopelessness and struggling with one’s place in the world. Negative events are dwelt upon and positive ones discounted, with emotional resilience lowered until mundane stresses seem overwhelming.
So opens an essay by Dr. Gaind in The Globe and Mail. Dr. Gaind, a psychiatrist, is president of the Canadian Psychiatric Association.
Dr. Gaind essay ran weeks ago, before the legislation was passed. Yet the essay seems more relevant than ever. After C-14, a larger debate continues – and the potential for future court rulings and legislation. (Remember: Parliament has committed itself to study medically-assisted death and mental illness.)
The essay is concise and doesn’t require a lengthy summary here.
Dr. Gaind makes several points:
· “Assessing irremediability in mental illness is very difficult.”
· Unlike with neurodegenerative disorders, he argues that in psychiatry it’s almost impossible to say that someone is without hope.
· Suffering from mental illness also ties into other issues, like social isolation and housing. “These concerns aren’t academic: In the Netherlands, most of the people receiving a medically assisted death for psychiatric conditions cited depression and unresolved loneliness.”
He goes on to conclude:
Complex decisions without standards become value judgments or best guesses, and we should not be gambling with the vulnerable lives.
A final thought: this is an excellent essay.
A couple of past Readings have looked at the international experience.
On The Netherlands:
That Reading discussed the Kim et al. paper. Dr. Kim is the author of a new CMAJ editorial on the topic of medically-assisted death and mental illness:
Reading of the Week. Every week I pick articles and papers from the world of Psychiatry.