Since the Canadian federal government introduced legislation governing medical assistance in dying (“MAiD”), the provinces and territories, which are responsible for the delivery of health care services in Canada, have adopted a variety of processes and procedures to deal with requests for MAiD. However, some questions and issues which have arisen with the legalization of MAiD remain outstanding and controversial, including whether individuals suffering from mental illness ought to have access to MAiD.
Historically, physician-assisted death was prohibited in Canada pursuant to sections 14 and 241(b) of the Criminal Code of Canada (“Criminal Code”). On February 6, 2015, the Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter 2015”) declared those provisions of the Criminal Code prohibiting assisted suicide invalid to the extent that they prohibit MAiD for a competent adult who clearly consents to the termination of his or her life; who has a grievous and irremediable medical condition which is causing the individual enduring, intolerable suffering; and whose suffering cannot be alleviated by any treatment acceptable to him or her.
On June 17, 2016, the federal government responded to the Supreme Court of Canada’s decision in Carter 2015 when it passed Bill C-14, improving what had formerly been a bumpy road for individual access to MAiD in Canada. Prior to the enactment of Bill C-14, pursuant to a 2016 interim decision of the Supreme Court of Canada, individuals who sought access to MAiD were required to apply to the superior court in their jurisdiction for judicial authorization.
On Wednesday, the federal government issued an Interim update on medical assistance in dying in Canada which indicates that between June 17, 2016 and December 31, 2016, MAiD deaths accounted for approximately 0.6% of all deaths in Canada. By way of comparison with other jurisdictions, the proportion of MAiD deaths was 3.75% in the Netherlands and 1.83% in Belgium in 2015, and 0.37% in Oregon in 2016. Recent statistics suggest that more than 1,300 MAiD deaths have taken place in Canada since it became legally available, the majority of which took place in British Columbia and Ontario.
In British Columbia, in 2016 43.6% of MAiD deaths took place at home, 30.3% took place in hospital, 9% took place in hospice care, with the remaining 17% taking place in unspecified settings. Similarly, in Ontario, 58.2% of MAiD deaths took place at home and 34.3% took place in hospital. In all reporting jurisdictions except Saskatchewan and the Atlantic provinces, proportionately more women than men received MAiD, and the most common underlying medical conditions were (in order of frequency) cancer-related, neuro-degenerative, and circulatory/respiratory conditions.
MAiD and psychiatric illness: the debate continues
The question of whether individuals suffering from psychiatric disorders ought to have access to MAiD has remained controversial and largely unanswered by the federal government.
In the interim period before Bill C-14 came into force, the question of whether an individual suffering from a psychiatric disorder could obtain access to MAiD came before the courts in Alberta.
E.F. was a 58 year old woman who applied to the Alberta Court of the Queen’s Bench in April of 2016 seeking judicial authorization to access MAiD. The basis of her request was a medical condition diagnosed as a “severe conversion disorder”, a psychiatric condition causing extreme physical pain with no clear physiologic origin, which she claimed caused her to endure chronic and intolerable suffering. While her condition was diagnosed as a psychiatric one, her capacity and cognitive ability to make informed decisions, including the decision to terminate her life, were not at issue.
The Court of the Queen’s Bench authorized E.F. to obtain MAiD and that authorization was challenged in an appeal to the Alberta Court of Appeal which ultimately upheld the lower court’s decision. The Alberta Court of Appeal affirmed that individuals who suffer from psychiatric disorders were not precluded from seeking MAiD under the Supreme Court of Canada’s interim criteria, provided they were competent and capable of clearly consenting to end their life. However, since the coming into force of Bill C-14, the legislative criteria for MAiD preclude individuals from seeking MAiD in those cases where mental illness is the sole underlying medical condition.
The recent death by suicide of Adam Mayer-Clayton, a 27 year old business school graduate and vocal advocate for access to MAiD for individuals suffering from psychiatric disorders has again brought attention to this issue. Among other psychiatric disorders, Mr. Mayer-Clayton reportedly suffered from a somatoform disorder similar in nature to the conversion disorder suffered by E.F., which he claimed caused him pain from which he could find no relief. However, he did not meet the criteria to access MAiD under the current legislative scheme, and instead took his own life earlier this month.
To date, the Canadian Psychiatric Association has not taken a clear position on MAiD for psychiatric patients, and has instead supported the federal government’s “more considered and less rushed approach”. The American Psychiatric Association has adopted the position that “a psychiatrist should not prescribe or administer any intervention to a non-terminally ill person for the purpose of causing death”. However, in those countries where it is permitted, the use of MAiD for patients with psychiatric conditions is increasing. In the Netherlands, two people sought and obtained MAiD deaths because of mental disorders in 2010; by 2015 that number had grown to 56, which was approximately 1% of the total deaths from MAiD. In Belgium, 3.9% of individuals who underwent euthanasia in 2013 did so because of a neuropsychiatric disorder, and a comparable percentage reported that their suffering was exclusively psychological.
The Canadian federal government has asked the Council of Canadian Academies (“CCA”), a federally funded non-profit organization, to report on how the law governing MAiD may be extended to include mature minors, advance requests, and requests where mental illness is the sole underlying medical condition. However, as of late January 2017, the CCA was only in the early stages of its review and its report is not expected until late 2018. Realistically, it may be years before we can expect to see any change to the existing legislative scheme for individuals suffering from mental illness.
 Paul S. Appelbaum, “Should Mental Disorders Be a Basis for Physician-Assisted Death?” (2017) Volume 68, Issue 4, Law & Psychiatry, 315-317, online: http://ps.psychiatryonline.org/doi/full/10.1176/appi.ps.201700013#_i3.