Medical Assistance in Dying: Canada is having the wrong conversation
“I would have signed up so many times in my life, but I would have missed out on so many things. People offer value to the world.”
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What is happening with Medical Assistance in Dying (MAID) for mental illness in Canada?
Prior to a court case that culminated in a decision from the Supreme Court of Canada in 2015, it was a criminal offence to aid or abet a person in committing suicide. The law also said people could not consent to their own death being inflicted upon them. This meant that any person, including a doctor, who assisted someone to die could be charged with a crime. The Supreme Court of Canada found that these provisions violated section 7 of the Charter of Rights and Freedoms, which protect human rights to bodily autonomy and liberty.
As a result of that case, in 2016 the federal government amended the Criminal Code of Canada to create exemptions for medical assistance in dying (MAID) in specific situations. Since that time, there have been ongoing debates about when and how MAID should be legal in Canada. In addition to other situations, there has been significant debate about whether medical assistance in dying should be legal for people whose only medical condition is a mental health-related illness.
Also in 2016, the federal government asked an expert academic panel to consider the implications of MAID in three situations; one was MAID for people whose only medical condition is mental illness. That panel issued a final report in 2018 finding that the panel was not able to reach consensus on issues like the implication of MAID for people with mental illness, how to weigh risks, how to distinguish between a wish to die by suicide and a wish to die by MAID, and others.
In 2021, the federal government amended the 2016 exemptions to make them broader so that MAID would be legal in even more situations. Those amendments included legalizing MAID for people whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, however the government delayed this from coming into force to allow for further research and the development of protocols for allowing it.
The delay in the exemption for people with mental illness will automatically expire on March 23, 2023 unless the law is changed. This means that MAID will be legal for people whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria.
Conversations about suffering don’t acknowledge that suffering is often caused by law and policy
Since the 2021 amendments, a person no longer needs to be terminally ill to be eligible for MAID. Instead, in addition to other criteria, a person must have an irremediable illness or disability, be experiencing a state of decline that cannot be reversed, and be experiencing intolerable suffering that cannot be remedied in a way that is acceptable to the person.
A lot of the focus on the 2021 amendments and how they may apply to people whose only medical condition is mental illness, is how we define irremediable and intolerable suffering that cannot be remedied.
In order to know if suffering can be remedied, we need to know its cause. With mental illness, many experts often presume that suffering is due to a person’s mental health issue, but that’s not the entire story for many people living with mental health-related disabilities in BC.
The suffering from mental illness is very real, but it’s often due to policy choices. Law and policy can help people out of their suffering, and it can and does cause suffering. Further, many times law or policy decisions have the potential to relieve suffering, but we choose not to do so.
In BC, the removal of autonomy causes suffering, and MAID creates a stark “choice”
“People are dying by suicide because of drug side effects, long stays in tertiary care, trauma caused by treatment, and low quality of life.”
In the current context in BC, offering MAID for mental illness in the name of autonomy is problematic. This is especially true given the fact that policy makers are expressly considering how and when people subject to long-term involuntary treatment will be able to access MAID.
There is no doubt that people with mental illness should have the same rights to control their own lives and make their own decisions as others, including about their death. However, BC’s mental health system, the system that is presumably supposed to be able to help remedy suffering related to mental illness, consistently removes autonomy via the Mental Health Act, is out of step with international norms, and has a documented cultural problem with respecting human rights.
BC’s mental health law is different than other provinces. The Mental Health Act authorizes the detention and involuntary psychiatric treatment of a person without a legal requirement that they be found to be incapable of making those treatment decisions. Come March, this will result in the absurd and deeply disturbing outcome that a person could be legally unable to make their own psychiatric treatment decisions and held in a long-term psychiatric facility against their wishes, but assessed as capable and able to consent to die.
In addition to BC’s mental health laws, it is well documented that our social systems fail to ensure people have access to what they need to be well: housing, income, freedom from racism and discrimination, and a sense of belonging in their communities. BC has also been the epicentre of the ongoing and unmitigated crisis of toxic drug supply, with no clear path to accessible safe supply despite years of advocacy, catastrophic and ongoing loss of life, and unimaginable suffering. Law and policy choices have a clear role in either mitigating or continuing that suffering.
“People should have the choice of when to die, but the government is not providing people opportunity to live. It’s complex and personal and I don’t want to make decisions for other people. I wish services matched peoples’ needs.”
In BC, allowing MAID for mental illness is essentially offering people two choices: They can choose to live in the context of a mental health and social system that does not allow them to meet their basic needs, respect their human rights, or offer them choice and control over their own lives and bodies. This is a choice rooted in suffering that is caused by BC’s law and policy choices. Or, they can choose to die.
Offering MAID in the name of autonomy risks actually reducing choice – it supports the systemic unwillingness to address human rights and wellbeing in a meaningful way. It’s easy to offer individual solutions to end the suffering caused by policy failure; it’s much harder to actually build systems that work for people and protects their dignity.
We’re having the wrong conversation about autonomy when it comes to mental health-related needs. Autonomy is about what a person needs to live and how we offer real choices to alleviate suffering. People must have the choice to live with dignity for there to be any meaningful choice to die.
One choice is not a choice, we have to build a spectrum
“Medication is almost the sole response of the system. If medication fails, people will be offered the opportunity to die. People need holistic help, we need more treatment options.”
People cannot freely consent to MAID in a context where health care providers hold immense power over them and control their lives, bodies, movement, and freedoms.
True autonomy means having a full spectrum of choices to avoid mental illness and help recover from it. We know what those choices need to include: land and culturally-based healing, counselling/therapy, medication, housing, safe supply, enough money to meet needs, freedom from violence, and health services that don’t discriminate. It requires the full freedom to control your own body and health care decisions. It requires addressing colonization, discrimination, oppression, and hate. It means offering choices that reflect each person’s individual culture, values, and needs.
Human rights law confirms that all the things we need to be well are intertwined and we can’t focus on just one; it won’t work. It is about a spectrum of choices that meet an individual’s needs and desires. Only then will we be truly supporting autonomy.