Lack of ‘rules’ in MAiD’s incurability test means leaning on ‘clinical hunch,’ says prof

As Canada prepares to allow people to request medical assistance in dying (MAiD) to address an incurable mental illness, the country runs the risk of seeing people “needlessly die” if assessors are relying on their “clinical hunch,” one expert warned parliamentarians yesterday.

Speaking to the joint MAiD committee, Brian Mishara, director of the Centre for Research and Intervention on Suicide, Ethics Issues and End-of-Life Practices (CRISE) at the Université du Québec à Montréal, said it is difficult to determine whether a mental illness is irremediable.

While psychiatrists can “reliably determine” if somebody has an illness or depression, there is no “specific scientific way” to sort out whether that is incurable, which would qualify that person to proceed with MAiD. Instead, assessors bear the brunt of that decision despite not having “known the person for 20 or 30 years,” argued Mishara.

Canada’s existing MAiD regime is in its infancy. While legalised in 2016, requesters are not currently eligible for the service if a mental illness is the only medical condition leading them to consider the option — though Parliament is staring down a March 2023 deadline to peel back that exclusion.

An expert panel tasked with issuing non-binding recommendations to guide that change released a report earlier this month that outlined there are “no fixed rules” to how a doctor determines if that illness is incurable — be it through how many treatments, the types or how long a person undergoes them.

Assessors will instead need to come to a “shared understanding” with the requesters that the illness cannot be cured on a case-by-case basis, it said.

With “not one iota of evidence” provided, Mishara said it’d be “inhumane” to deny MAiD to requesters but cautioned any efforts to identify who should have access “will come with large numbers of mistakes.” That means people who could one day experience improvement, especially those who are suicidal, “could be dead instead of getting the help they need,” he warned.

Sean Krausert, executive director of the Canadian Association for Suicide Prevention, laid out his personal connection to the committee, declaring he “wouldn’t be here if the option of MAiD had been available to me in my darkest days.”

Elected mayor of Canmore last fall, Krausert lived with depression and anxiety throughout his 20s and 30s and suffered suicidal thoughts before realizing “I actually didn’t want to die, but rather end the pain.”

He said such “ambivalence” is common among those thinking of taking their lives, and while he once saw himself as a “burden” to his family, he’s since found out he has severe sleep apnea that had gone undiagnosed for years and now lives a “rich life,” expecting to be a grandparent in a few weeks.

Death should not be used “as a remedy for a difficult and painful life,” especially when those challenges can be cured, he said. An expansion of MAiD carries with it “an inherent assumption that some lives are not worth living and cannot be made so.” He said if given the option years ago, he might have “given up on his life.”

Mishara’s comments struck a chord with the committee, who also heard from UBC psychiatrist Derryck Smith, who’s been involved in two cases of psychiatric illness and MAiD.

While the diagnosis of such illnesses is as “reliable as other medical diagnoses,” despite few biological markers like blood tests or X-rays to guide them, Smith said one does not need to be facing a terminal condition for the service, and the courts have granted access in cases where they “look at the whole person.”

“Once cannot look just at the diagnosis. You have to understand the nature of the human experience of the person sitting in front of you,” said Smith.

He added “skilled” clinicians are used to taking things on a case-by-case basis and the courts are well-equipped to do so, too. Medical professionals can also speak to a patient’s family and family doctor to guide their assessments, which per Smith, can take “literally hours.”

The professor recalled carving out three hours to speak to each of a requester’s children about their father’s ask, explaining he is also at “liberty” to seek a second opinion if he’s unsure.

But Mishara cautioned there could be other underlying factors at play for those seeking the service, including waning access to other supports.

He noted the Netherlands has “a very detailed protocol which takes an average of 10 months of assessment and evaluation.” However, Mishara said that requires allowing assessors to spend more time with patients than some may get “over the course of 10 or 15 years” in Canada, depending on things like the quality of treatment and associated wait times.

NDP MP Alistair MacGregor highlighted the correlation of layering access to mental health services onto other environmental, social and economic inequalities around poverty, homelessness and the opioid crisis. He asked how those inequalities could “influence” a requester’s decision to seek the service, with Smith agreeing there is “no doubt” access varies for many people living with psychiatric illnesses.

“But I think that’s becoming true in all other parts of medicine as well,” he added, noting people are also facing a crunch in securing family doctors in his home province of B.C. — which further places an emphasis on looking at the “individual case, not groups of people.”

He said MAiD assessors are not “blinded” to the fact that treatments should be offered to the person to relieve suffering first and foremost.