Psychiatrists fear for patients despite MAiD for mentally ill delayed

On the rare occasions when one of Dr. Jack Haggarty’s patients commits suicide, he mourns. He grieves. The prospect of psychiatrists like him having to sign off on a request for a medically assisted death has Haggarty wondering how his psychiatric practice, and the profession in Canada, may be altered one year from now, when the legal exception to Medical Assistance in Dying for the sole reason of mental illness is set to expire.

“This clearly is something that’s not routine. It’s a unique change in path,” Haggarty told The Catholic Register as legislation to hold off one year on the March 17, 2023 inclusion of psychiatric illness in Canada’s MAiD regime went through first reading in the House of Commons.

As the chair of the Northern Ontario School of Medicine department of psychiatry, Haggarty was one of the authors of a letter from all 17 medical school psychiatry chairs across Canada which in December urged the government to take more time to consider MAiD for severe mental illness. That letter may have pushed the government on Dec. 15 to pump the brakes on a law that would loosen restrictions on the world’s most permissive legal framework for doctor-assisted suicide.

Canada has already, since 2016, had the largest number of legally sanctioned assisted suicide deaths in the world. In 2021 there were 10,064 MAiD deaths, a 32-per-cent increase over 2020. Extending the practice to include psychiatric patients who have no other medical reason for requesting a doctor-assisted death, combined with the absence of any requirement that death be reasonably foreseeable, would add to those numbers. 

Based largely on Flemish experience, experts predict only one to two per cent of psychiatric patients would be eligible and go through with the procedure, but nobody can predict how the Canadian rules would actually pan out.

The problem for Haggarty is that he considers himself to be in the hope business.

“The term ‘installation of hope’ has always been at the undercurrent of our work (in psychiatry),” he said.

New regulations governing how and when psychiatrists would have to consider a patient’s request to die at the hands of a physician have been in the works for most of the last year, but they all hinge on the doctor’s ability to determine that the patient’s severe mental illness is “irremediable” — can’t be cured.

“The world of irremediability has not ever been part of what we do regularly,” Haggarty said. 

Of course there is treatment resistance, but that’s different from ruling out any possibility of improvement, Haggarty said.

“I can’t speak for all of my psychiatrist colleagues, but it was always, ‘Gee, that has not been successful. We’ve tried this one month, three months, six months. Now we need to go over the algorithm, go over the pathway of treatment resistant management,’ ” he said.

Haggarty is not alone in puzzling over what is meant by irremediability. The Canadian Mental Health Association “does not believe that mental illnesses are irremediable, though they may be grievous or unbearable.” The federal government’s expert panel on MAiD in May, 2022 concluded, “Determinations of irremediability and irreversible decline cannot be made for mental illnesses at this time.” And Toronto’s world-leading Centre for Addiction and Mental Health (CAMH) urged the government to delay including mental illness in it’s MAiD eligibility framework over “the lack of agreement amongst experts on whether mental illness can be considered ‘grievous and irremediable’ for the purposes of MAiD, and what criteria should be used to determine if a person is suffering from an irremediable mental illness.” 

Haggarty is grateful for the extra year of study, discussion and debate, but keenly aware that it is only a year.

“A year is what? It’s a number. It’s not a solution,” he said. “We need to resolve these issues, or at least find a way to address them… It’s going to take some really important conversations, policy creation, education, training and reflection frankly on whether this is what we should be doing.”

Some of that reflection is alive among Canadians. An Angus Reid poll released Feb. 13 found 51 per cent oppose MAiD where mental health is the sole condition. Just 31 per cent support it.  

The Canadian Association for Suicide Prevention believes the distinctiion between a supposedly rational, free choice for medically assisted death from suicide is not possible.

“It is important to be perfectly clear that when considering MAiD in the context of someone who is not dying as a result of their particular condition, we are talking about suicide,” CASP said in a November 2021 discussion paper.

Suicide is just one of the questions Haggarty has as provincial governments, hospital corporations and regulatory bodies continue to work on policies and procedures to be ready for the 2024 deadline.

“What do we do for suicide prevention?” he asked. “What do we do to offer adequate mental health services? What’s the threshold which would give somebody permission to be appropriately eligible for this? These are really critical questions.”

For their part, the Protection of Conscience Project is engaging provincial medical regulators, such at the College of Physicians and Surgeons of Ontario (CPSO), with legal arguments to forestall any determination that psychiatrists may be legally obligated to provide an “effective referral” for MAiD, as most other doctors are.

If “grievous and irremediable” suffering cannot be scientifically, objectively established and no such standard is agreed upon in the medical literature, a psychiatrist cannot be forced to refer for euthanasia and assisted suicide, the Conscience Project argues in its submission to the CPSO.

Conscience Project administrator Sean Murphy concedes that a “conscience clause” in provincial legislation that would somehow create an exception to the Criminal Code of Canada is not possible.

“The federal Justice Minister can easily reject any amendments to this effect,” said Murphy said. Legally, provinces have no business messing with the Criminal Code.

That leaves the regulatory route through the provincial colleges of physicians. Murphy calls the “effective referral” regulations in Ontario “coerced collaboration,” and rejects the Ontario Superior Court reasoning such measures are reasonable compromise.

An escape route from a painful life to a legally sanctioned death has never been part of Haggarty’s practice or conception of what psychiatry is all about.

“Our task is to be care providers and help our patients pursue what they feel is a step in mental health, within the regulations and rules which guide us from various professional colleges,” he said. “It’s foreign to us to be entertaining this in the manner we may have to anticipate and actually do.”

But Haggarty isn’t quitting.

“I’m optimistic for the dialogue to continue,” he said. “We’ve got to just keep at it.”