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Defining Incurable: The Legality of Medical Assistance in Dying for Mental Illness in Canada, Vol. 56.1

Brianna Ramos


24 Aug 2023

Medical Assitance in Dying in Canada

Canada legalized medical assistance in dying (MAID) in 2016, following a Supreme Court Case, Carter v. Canada, where the Court held that prohibiting MAID violated the Canadian Charter of Rights and Freedoms. Over 30,000 people have used MAID since its legalization, with 10,064 patients in 2021, accounting for 3.3% of all deaths in Canada that year. Many Canadians view the right to MAID as fundamental, however, the rules as to who qualifies are vague, and Parliament has again delayed making further clarifications, specifically in establishing which types of mental illness satisfy MAID’s requirements.

 To qualify for MAID, a patient must request MAID voluntarily, be 18 or older, have the capacity to make healthcare decisions, provide informed consent, and be diagnosed with a grievous and irremediable medical condition. To have such a medical condition the person must have a serious and incurable illness, disease, or disability, be in an advanced state of irreversible decline in capability, and experience enduring physical or psychological suffering. The law was expanded in 2021 to include conditions which are non-life threatening, making Canada one of three countries (accompanied by Belgium and the Netherlands), to allow MAID for people with non-terminal illness. This is a stark contrast from states in the U.S. where MAID is legal, which require the patient to have a terminal illness with less than six months life expectancy

The law does not disqualify a mental illness, in isolation, from qualifying a Canadian for MAID. However, Parliament was granted two additional years following the passage of the new law to research how MAID should be applied to cases of mental illness. During this time, patients applying for MAID citing mental illness as their sole diagnosis will not be reviewed.

Delaying Decisions for Mental Illness

With over 3% of Canada’s deaths in 2021 resulting from MAID, a significant number of whom would not have died that year, many Canadians consider MAID a fundamental right. Some mental health advocates see the exclusion of mental illness as a satisfying condition as denying such rights. However, medical professionals are hesitating to support its inclusion because of difficulties in assessing a patient’s competency and whether a mental illness is in a state of irreversible decline. 

While the law was set to expand to people with mental illness in March of 2023, Parliament has again extended the deadline to continue its research. One key issue identified by the Special Joint Committee for MAID is the diagnostic criteria for a mental illness to satisfy the legal conditions of being incurable, and the person to be in an advanced state of irreversible decline and suffering. Unlike most physical ailments, the treatment possibilities for mental illness may be countless. The Canadian Mental Health Association, for example, reported that it is not possible to determine if a particular case of mental illness is incurable, making it virtually impossible for patients with mental illnesses to qualify for MAID. When a patient has cancer, for example, a doctor can verify that the patient has tried every available treatment to alleviate pain and attempt to cure the disease, however, mental illnesses have many possible remedies including medications, therapies, and inpatient treatment. This makes it difficult for a doctor to say with certainty that a particular patient has tried all treatments to no avail.

Another issue some advocates have is the fear that allowing MAID for people with mental illness will result in fewer resources being advertised and utilized. Critics are concerned that patients may opt for MAID without trying other treatments, and that the cost of treatment may play a critical role for patients determining whether to use MAID. Doctor Madeline Li, a psychiatrist at Princess Margaret Hospital in Toronto, explains “making death too ready a solution disadvantages the most vulnerable people, and actually lets society off the hook […] I don’t think death should be society’s solution for its own failures.” Individuals with mental illnesses face many barriers to accessing treatment in Canada including long wait times, shortage of accessible mental health professionals, and cultural stigma. Before making MAID a viable alternative, people like Dr. Li hope that Canada will first invest in providing adequate support to its citizens with mental illness to avoid MAID where possible.

MAID in Belgium

Since 2002, Belgium has had the world’s most liberal euthanasia laws, and in 2014, has even allowed terminally ill children to opt for euthanasia, with a seventeen-year old being the first minor to use MAID in 2016. The law similarly requires that patients submit a demand for MAID individually and while medically competent to do so, but has no requirement that the ailment be terminal, only that it cause “constant, unbearable, and unrelievable physical and/or psychological suffering.” From 2002 to 2021, 370 patients had opted for MAID citing a psychiatric disorder, accounting for 1.4% of all MAID deaths in Belgium that year.

One controversial case, Mortier v. Belgium, involved the son of a patient who used MAID who sued the Belgian government for allowing his mother to utilize MAID for treatment-resistant depression and a personality disorder, citing that the doctors had not exhausted all treatments before allowing his mother to qualify for euthanasia. The European Court of Human Rights (EctHR) found that Belgium’s euthanasia law had satisfied its requirements for decriminalizing MAID which are, “(1) clearly and carefully defines the scope of the right to request medical assistance in dying; (2) provides for a procedure that can guarantee that the request is voluntary; (3) contains increased protective measures for vulnerable persons; and (4) regulates with precision the decisions that the persons tasked with assessing the request have to take to ensure the fulfillment of the eligibility criteria.” Rather than critique the law’s application to patients, the court did find that the Belgian euthanasia law fell short in applying protections to doctors who performed MAID, taking issue with the punishment for a doctor improperly allowing MAID being equivalent to murder. As such, Belgium will have to amend the law to allow for greater safeguards for physicians, not patients.

An Uncertain Future in Canada

The Canadian Department of Justice once again delayed the expansion of MAID to patients citing mental illness as their sole reason for applying for another year, giving the country until March 2024 to prepare to address such patients’ requests. The Expert Panel on MAID and Mental Illness suggests clarity for doctors in defining and establishing “incurable” and “irreversible,” expanding access to mental health care, and employing heightened scrutiny to cases where the patient is vulnerable due to his or her identities and/or is suicidal. The panel’s report also suggests further research into elderly persons with mental disorders, persons with intellectual disabilities, and requesters who are incarcerated. Like many who oppose the expansion of MAID, the panel is concerned that people from marginalized communities, such as indigenous or low-income individuals, will feel pressured to utilize MAID before exploring alternative treatments for their mental illnesses.

If Canada’s law is to remain as is, Parliament will need to rise to the challenge of assessing the qualifications of individuals with mental illness for MAID. While death with dignity is celebrated as a right, the Canadian government’s hesitation shows that assessing whether a patient meets the medical and legal requirements for MAID is highly nuanced. For physicians, the government’s vague guidelines leave too much room for discretion.