The Hidden Risks of Expanding Medical Assistance in Dying

 
Note: This article addresses mental illness and medical assistance in dying. Reader discretion is advised. For support, call or text Canada’s Suicide Crisis Helpline at 9-8-8.

Canada’s Medical Assistance in Dying (MAiD) legislation was introduced in 2016, allowing eligible individuals to seek medical assistance to voluntarily end their lives under legislated safeguards.

MAiD is available to adults with a grievous and incurable medical condition who provide informed consent and meet specific eligibility criteria, including enduring unbearable suffering and experiencing an advanced state of irreversible decline of capability. (Read more about what MAiD is.)

Since March 2021, MAiD has followed a two-track system based on whether a person’s natural death is “reasonably foreseeable,” meaning that death is expected within an unspecified but not remote timeframe due to their medical circumstances. 

Those whose natural death is reasonably foreseeable follow Track 1, while others fall under Track 2, which involves additional safeguards. Notably, individuals whose sole underlying condition is a mental illness are ineligible for MAiD – a restriction that was set to lift in 2023 but subsequently extended to 2024 and then to March 2027. — The editors

Is MAiD a proper solution to serious mental illness? What are the policy implications of entrenching this in law as a fully funded medical service? (In Canada, in almost all cases, MAiD involves ending a patient’s life through a physician’s or nurse practitioner’s lethal injection.)

These are complex questions. Unfortunately, society has not engaged in an honest, serious debate about them. Instead, over the past several years, we have seen relentless advocacy-driven expansion of MAiD, framed as a rights issue, without careful discussion of the implications of extending it beyond the end-of-life context, and how this affects people differently based on the nature of their suffering.

Before considering further expansion of MAiD to mental illness, we must recognize how MAiD already puts people with disabilities at risk of premature death, particularly when they also experience ableism, ageism, sexism and other forms of marginalization.

MAID was first legalized as an exceptional procedure for people with an irremediable medical condition and irreversible decline of capability, and intolerable suffering, who were approaching their natural death. It remains an exemption to the Criminal Code’s prohibitions against homicide and aiding suicide. The law was designed to guard against premature death and suicide and the devaluation of the lives of the elderly, ill or disabled.

Yet from the outset, advocates pushed for expansion, interpreting the law flexibly and challenging the end-of-life safeguard in court. In 2019, a single Quebec Superior Court judge ruled that this safeguard violated the Charter rights of patients who were not approaching their death. Despite opposition from several legal experts and most Canadian disability organizations, the government failed to appeal the decision.

In 2021, Parliament expanded MAiD outside the end-of-life context, making it available to disabled individuals who were not dying. However, it suspended the introduction of MAiD for the sole reason of mental illness. This suspension was extended in 2023 for one year, and again in 2024 for another three years, after testimony from psychiatric experts and provincial ministries of health revealed that the health-care system was not ready. These hearings exposed how some advocates, including some within the mental-health care community, have embraced a rhetoric of constitutional rights, despite serious legal doubts about whether a broad constitutional right to MAiD exists under the Charter.

The claim that denying MAiD for mental illness is discriminatory ignores critical evidence. Providing psychiatric euthanasia for mental illness would itself be the ultimate discrimination, depriving people with mental illness, who often lack adequate medical care and social support, of equal protection against suicide and exposing them to avoidable death under false pretenses.

Canadians have been assured MAiD is for “irremediable” medical conditions – ones that will not improve. But unlike diseases with better understood causes, mental illnesses often follow uncertain courses. Research shows that assessors attempting to determine whether a mental illness is irremediable would be wrong more than half the time. Even those pushing for psychiatric euthanasia acknowledge that irremediability in mental illness cannot be predicted. Instead, they argue this should be an ethical decision on a case-by-case basis – effectively replacing the safeguard of a predictable prognosis with the subjective judgement of individual assessors.

Research shows that individuals seeking psychiatric euthanasia overlap with those who are suicidal when mentally ill. Despite claims that assessors are trained to distinguish suicidality from those requesting psychiatric euthanasia, evidence fails to support that this distinction can be made. Instead, this training falsely reassures assessors that if a patient is not impulsive and is requesting a MAiD assessment instead of acting on their own, they are not suicidal. In truth, most suicides in North America are not impulsive.

This issue is not about undermining the competence of patients with mental illness. It is about the absence of evidence that we can reliably distinguish suicidality or predict the irremediability of psychiatric conditions. To be blunt, despite their claims otherwise, MAiD assessors lack the ability to make these determinations.

Worse, the most marginalized Canadians are at risk of seeking MAiD not for an “irremediable” illness, but as an escape from life suffering fuelled by social marginalization. Evidence from Belgium and the Netherlands, two of four countries providing psychiatric euthanasia, shows that twice as many women as men receive MAID for mental illness, while the gender split for terminal conditions is equal. Alarmingly, this finding has been dismissed by Canadian expansion advocates, including the chair of the Federal Expert Panel on MAID for Mental Illness, who publicly stated that this gender gap “doesn’t concern” them.

There is mounting evidence that the 2021 expansion of MAiD outside the context of an approaching natural death has already put marginalized Canadians at disproportionate risk of premature death. Reports from the Ontario Coroner’s MAiD Death Review Panel and Health Canada confirm what disability advocates warned policymakers about. The Ontario Chief Coroner concluded that individuals whose deaths were Track 2 (not approaching natural death) were much more likely to live in neighbourhoods with higher levels of residential instability, material deprivation and dependency than those in Track 1 (approaching natural death).

When the government offers MAiD to people who are not dying, a disproportionate number of marginalized Canadians are tempted to opt for MAiD. Their reason? Not to relieve unresolvable suffering from illness, but to escape suffering caused by a lack of support and inadequate health care. Nearly half of Canadians who died by MAiD under Track 2 in 2023 cite both loneliness and a sense of being a burden on others as major sources of their suffering. The reports also document what media investigations and recent court cases have revealed: disturbing instances where MAiD assessors and providers without strong expertise in mental health or complex disease approved or provided MAID to people struggling with both disability and mental illness.

Canadians should ask whether it is appropriate for their government to offer easier access to euthanasia than to health care and support – particularly for those whose suffering stems from social distress and mental illness. Provincial and federal governments should focus on ensuring access to adequate and timely support services that enable people to live with dignity. Rather than creating a system that entices vulnerable individuals to consider ending their lives due to social suffering, we should be striving to provide them with the resources they need to cope and thrive.

Read an argument for why MAiD should be accessible to people solely with mental illness.

Trudo Lemmens is a professor and Scholl Chair in Health Law and Policy at the Faculty of Law and the Dalla Lana School of Public Health at the University of Toronto. Lemmens is currently a member of the Chief Coroner of Ontario MAID Death Review Panel.

K. Sonu Gaind is a professor of psychiatry at the Temerty Faculty of Medicine at the University of Toronto and chief of psychiatry at Sunnybrook Health Sciences Centre. Previously, he was also physician chair of the Humber River Hospital MAiD team.

Both Lemmens and Gaind were expert witness for the Federal Attorney General in the Truchon and Lamb cases, and were both members of the Council of Canadian Academies Expert Panel on Medical Assistance in Dying. They are co-editors, with Ramona Coelho, of a recently published volume Unravelling MAiD in Canada: Euthanasia and Assisted Suicide as Medical Care.