Jocelyn Downie rebuts misleading claims about the law and medical assistance in dying for mental illness advanced by psychiatrists Mark Sinyor and Ari Zaretsky in a recent Op-Ed.
Medical assistance in dying (MAiD) for persons with mental illness is controversial. In March 2022, a report from an independent expert panel will be delivered to the Canadian Parliament making recommendations about what, if any, guidance is needed for clinicians responding to requests for MAiD from persons with mental illness. In March 2023, the temporary legal exclusion from eligibility of persons with mental illness as their sole underlying medical condition will be lifted. Before then, pressure will mount to reverse course and make the exclusion permanent and, assuming that doesn’t happen, decisions will need to be made about clinical guidance for MAiD for mental illness. The upcoming debates about the law and practice must be based on accurate information and valid arguments. Unfortunately, in a recent Op-Ed, psychiatrists Mark Sinyor and Ari Zaretsky present misinformation about the law.
The Op-Ed authors raise the spectre of civil liability for psychiatrists finding a patient with mental illness to have met the eligibility criterion of irremediable suffering. They describe a hypothetical lawsuit in which the lawyers for the parents of a patient who received MAiD for mental illness “call scientific experts, who testify that the psychiatrist’s assessment that there was no way to relieve [the patient’s] suffering really couldn’t be made with existing evidence. With the psychiatrist on the stand, their lawyer offers a stinging challenge: ‘Doctor, you made a determination that is considered medically impossible, given the best available science, and now my clients’ daughter is dead.’” They also cite various groups that have released statements claiming that “we currently lack the knowledge to determine whether a particular person’s suffering in mental illness can be remedied” and conclude that “[t]his means that, on a practical level, physician assisted death for mental illness cannot be legal in Canada.” However, their “stinging challenge” is mere rhetoric and the statements do not have the impact they suggest.
Sinyor and Zaretsky’s reliance on the hypothetical testimony of a single psychiatrist and statements from various groups expose their misunderstandings of the relevant law. What would matter in their hypothetical lawsuit is whether the clinicians breached the standard of care. The questions before the court would be: in their eligibility assessment, did the clinician exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing?; and is there “a respectable minority” of experts in mental illness who might believe, based on their review of the evidence and their clinical expertise that, in some cases, a patient’s suffering from mental illness cannot be remedied by means acceptable to the patient? Sinyor and Zaretsky are correct that some clinicians will state that it is “medically impossible” to make such a determination. However, they fail to acknowledge that much more than “a respectable minority” of experts in mental illness disagree with this statement. For example, in a 2020 survey of the members of the Canadian Psychiatric Association, 63% agreed or strongly agreed that “it is possible for a mental disorder to be grievous and irremediable.” 41% agreed or strongly agreed that “Persons whose sole underlying medical condition is a mental disorder should be considered for eligibility for MAiD.” A survey of Quebec psychiatrists similarly undercuts Sinyor and Zaretsky’s position. Furthermore, well-respected psychiatrists, including those found credible and persuasive by Justice Baudouin in Truchon, have stated that it is possible, in some cases, to conclude that a patient’s suffering from a mental illness cannot be relieved by means acceptable to them.
The Op-Ed authors also object to removing the exclusion of persons with mental illness as their sole underlying medical condition on the ground that “[w]e don’t even have a proper scientific definition for the concept of ‘enduring and intolerable suffering,’ which is at the crux of the legislation.” They are correct that “enduring and intolerable suffering” is at the crux of the MAiD legislation, but they are mistaken in calling for exclusion in the absence of a “scientific definition” for a legal concept. All MAiD cases use this concept. Their argument implies that all MAiD is or should be illegal. So, they should either withdraw the argument or own this implication.
Finally, Sinyor and Zaretsky suggest that Canada’s MAiD for mental illness laws are illegitimate because they were “made in courts and Senate hearings where the usual scientific rigour was not mandatory. Instead we have a Kafkaesque scenario where handwaving arguments based on missing or unacceptable poor-quality data were presented to courts and legislators as scientific facts.” This description is grossly misleading. One only needs to look at Justice Baudouin’s decision in Truchon to see this. Justice Baudouin very carefully analyzed the evidence presented by both sides. She eventually rejected the arguments – such as those in the Sinyor and Zaretsky Op-Ed – for excluding patients with mental illness. She found that the experts (including Sinyor) advancing these arguments “had not even a basic knowledge of the practice of medical assistance in dying in Canada, which has nonetheless been legal throughout the country since 2016. None of them has participated in the request process for medical assistance in dying, either by assessing a patient or by providing such medical assistance. None of them has done any research on the subject or even tried to consult the data available in Canada”. Instead they have provided “opinion based on biases or a practice that does not correspond to reality.”
The debate about MAiD for mental illness will continue to rage in the coming year. Op-Eds and other public statements that misrepresent Canada’s MAiD law are not helpful.
Jocelyn Downie is a University Research Professor in the Faculties of Law and Medicine at Dalhousie University. @jgdownie