By Rebecca Bocchinfuso – Director of Amicus
The question of whether assisted suicide is ethical is a common topic of debate. I recall debating the subject in my High School law class, arguing that those who are terminally ill should have the freedom to choose to die with dignity. However, what if eligibility for medical assistance in dying (MAID) was available to those suffering from mental health disorders?
What are Mental Health Disorders?
The term mental health disorder encompasses a variety of conditions which affect a person's behaviour, thinking, mood and overall life.[1] This includes diagnoses of depression, anxiety disorders, bipolar disorder, post-traumatic stress disorder, schizophrenia and eating disorders.[2] It is likely that someone you know and love is currently suffering from one of these mental health issues.
Contemporary Attitudes Towards MAID and Mental Health Disorders
Currently, there are three countries which allow for MAID to be granted for those suffering from mental health disorders in addition to terminal illness. These countries include Belgium, Netherlands, and Luxembourg.[3] The American Psychiatric Association has since issued a position statement which unequivocally denounces the use of MAID for individuals who are not terminally ill.[4] Despite this, Canada is currently on track to join the list of countries allowing for MAID for mental health patients in March of 2023.[5] The Canadian Psychiatric Association supports this change in the laws surrounding MAID, indicating that patients suffering from psychiatric illness are being discriminated against by not having MAID available to them due to the nature of their diagnosis.[6]
What Constitutes Harm?
Physicians in Canada are regulated by the Canadian Medical Association, who produces a code of ethics for all Canadian physicians to abide by.[7] Within this code of ethics, there is an obligation to ‘take all reasonable steps to prevent or minimize harm to the patient’.[8] But the quintessential question is, what constitutes harm?
John Stewart Mill would argue that where the harm is consensual, there was no harm done.[9] This assertion is generally supported in society, where it is entirely lawful to get a tattoo, or a piercing so long as consent is granted. On the other hand, subsequent authorities have seemed to develop on the basis that there is a line to be crossed with respect to what harms are capable of being consented to. The seminal decision of the House of Lords in R v Brown[10] indicated that a ‘victim's’ consent in sadomasochistic activities was not a defence to assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1961. Support for the Brown[11] decision has been articulated by academic commentators, indicating that allowing one to consent to severe harms would fuel societal degradation in the commitment to the sanctity of human life.[12]
Questions to Consider
One of the goals of seeking professional treatment for mental health issues, namely for suicidal patients, is to avoid the possibility of suicide in that patient, is it not? In allowing suicidal patients to be eligible for MAID, is that thus treatingsuicidal patients with the very thing that professional help is sought to ultimately avoid? Is this, in effect, dangling suicide in the face of suicidal patients, and validating thoughts that life is not worth living and they should end their life? How would these conversations between patient and medical staff be regulated? Would this open the door for innumerable avoidable deaths?
Alternatively, what if there were little to no prospect for improvement in the condition of the patient’s mental health disorder and their quality of life? Would denying individuals with psychiatric illness the choice over their life and death be an example of the law taking too paternalistic a role in the lives of citizens? Is the Canadian Psychiatric Association correct in asserting that patients suffering from mental illness are being discriminated against by not having access to MAID? Canadian law has developed over the years to protect citizens’ right to bodily autonomy, and the Supreme Court of Canada has made it clear that the state should not interfere with a person's decisions regarding their own body.[13] Is it then unconstitutional to deny Canadian citizens the right to MAID on the grounds of psychiatric illness?
What is Your Position?
In considering a physician’s duty not to harm their patients, one’s interpretation of harm will reveal the answer to these questions. Is it harming the patient by prolonging their suffering, or is the facilitation of a patient’s death the ultimate harm to be avoided?
I offer my sincerest thank you to the bright minds of Sara Sotirakos, Madeline Chidiac and Sara Bocchinfuso for bringing this important subject to my attention and helping me understand the differing perspectives on this issue through their vast experiences studying medicine at Trinity College Dublin.
[1] ‘Mental Illness’ (Mayo Clinic, 13 December 2022) <https://www.mayoclinic.org/diseases-conditions/mental-illness/symptoms-causes/syc-20374968#:~:text=Overview,eating%20disorders%20and%20addictive%20behaviors>accessed 12 January 2023. [2] ‘Mental Disorders’ (World Health Organization, 8 June 2022) < https://www.who.int/news-room/fact-sheets/detail/mental-disorders> accessed 12 January 2023. [3] Komrad, Mark. S, ‘First, Do No Harm: New Canadian Law Allows for Assisted Suicide for Patients with Psychiatric Disorders’ (Psychiatric Times, 7 June 2021) <https://www.psychiatrictimes.com/view/first-do-no-harm> accessed 12 January 2023. [4] Komrad, Mark S, ‘APA Position on Medical Euthanasia’ (Psychiatric Times, 25 February, 2017) <https://www.psychiatrictimes.com/view/apa-position-medical-euthanasia> accessed 12 January 2023. [5]The Canadian Press, ‘Liberal Government Seeking Delay to Expanding Medically Assisted Dying Program’ (CTV News, 15 December 2022) <https://www.ctvnews.ca/politics/feds-seeking-to-delay-expansion-of-medical-assistance-in-dying-laws-1.6196668> accessed 12 January 2023. [6] ‘Medical Assistance in Dying (MAiD)’ (Canadian Psychiatric Association, n,d.) <https://www.cpa-apc.org/medical-assistance-in-dying-maid/> accessed 12 January 2023. [7] ‘Ethics and Professional Affairs’ (Canadian Medical Association, n,d.) <https://www.cma.ca/ethics-and-professional-affairs> accessed 12 January 2023. [8] CMA Code of Ethics and Professionalism’ (Canadian Medical Association, n,d.) pg 2 <https://www.who.int/news-room/fact-sheets/detail/mental-disorders> accessed 12 January 2023. [9] Mill, John Stuart, On Liberty, (2nd ed, London: John W. Parker & Son). [10] [1994] 1 AC 212 [11] [1994] 1 AC 212 [12] Wilson, William ‘Is Hurting People Wrong?’ [2992] J. of Social Welfare and Fam. 388, 393, 395. [13] Bocchinfuso, Rebecca, ‘The Right to Bodily Autonomy Under Section 7 of The Canadian Charter of Rights and Freedoms’ [2022] Leicester Student Law Review, 1(11), pp.24-27.