John Maher asserts that medical assistance in dying (MAiD) should not be a legal option for persons whose sole underlying condition is mental illness because proposed safeguards will fail over time.

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As a result of the Truchon decision, the federal government recently introduced a Criminal Code amendment that, if passed into law, will affirm “that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying.” This is a continuing and appropriate protection for a vulnerable population whose suffering can be mitigated.

In response, MAiD advocates sing a siren song of absolute individual autonomy. It is claimed: i) the state should not interfere with a capable person’s choice to complete suicide, and; ii) the state should help with such suicides since people are entitled to services (i.e. MAiD) that other (dying) citizens already receive. But, caring societies have long held that respecting autonomous choice has its limits, especially with: brain malformation, damage, or disease; childhood; and harm to self or others.

This moral reductionism attempts to recast suicide assistance as a citizen’s legal right (even though you are already free to kill yourself on your own). In support of this goal, legal frameworks for helping suicidal people with mental illness kill themselves continue to be proffered by MAiD advocates along with supposed safeguards that purport to limit potential abuses. But no matter how well crafted a suicide law may be, it cannot possibly cover the complexity of all the individual suicide requests and circumstances. Below are some examples of safeguards and some reasons they will falter, then fail.

1. Review of the assisted suicide requests by two (or more) independent psychiatrists (preferably with special expertise in the salient psychiatric disorder).

Whether for or against assisted suicide for mental illness it is clear that intact decisional capacity is necessary for providing informed consent for MAiD.

Note, however, that if a psychiatrist does not know the patient over the long term, and is not within a functional therapeutic relationship, it can be very difficult to assess decisional capacity accurately.

Patients commonly “hold it together” during the snapshot afforded by a 1-2 hour capacity assessment by an independent psychiatrist, even against a hidden backdrop of profound decisional impairment. “Ruling out” who should not be eligible for MAiD is easy (with extreme psychosis, for example). “Ruling in” is fraught with clinician-to-clinician variability and value judgements. Inter-rater capacity assessment reliability is only 65%. The presumption that all psychiatrists can sort out these grey areas with aplomb is naïve. Capacity assessments require training, experience, and sophisticated craft knowledge. This variability means there is a significant risk that many patients will be judged to qualify for MAiD when they actually lack the capacity to consent to it.

Of greater concern are the psychiatrists who would be willing to kill a lot of patients in the name of compassion. The experience of the Benelux countries unequivocally illustrates pro-suicide biases among a small number of psychiatrists whom patients actively seek out to get the suicide outcome they desire. The risk with this group of psychiatrists is, again, the over-use of MAiD in cases where patients should be considered ineligible.

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2. Require that the patient accept more or different treatment, and simultaneously impose a time delay (e.g. 6 months) before fulfilling the assisted suicide request to allow time for further reflection, added support provision, or to see if the different treatment approach reduces suffering.

Standard psychiatric treatment protocols are not of short duration (months to years), and entail multiple treatment trials. The requirement that the patient have an “irremediable medical condition”, as specified by existing MAiD legislation, means the patient has already been receiving longer term treatment that she or he considers inadequate. This supposed safeguard would not filter out anyone who should be ineligible for MAiD, since everyone with a serious psychiatric condition that has yet to be remedied (even when ultimately remediable) will meet this point-in-time requirement.

3. Require an eligibility criterion of a “non-ambivalent decision”.

Unwavering certainty would self-evidently be a minimum legal requirement for any provision of MAiD. But a sustained and clear wish to die does not mean it is a rational wish. For example, the wish might arise out of depression-induced despair. Some propose watering this requirement down to a “well-considered decision”.

This weaker position has questionable grounding in the realities of brain science, decisional variability, and the profound messiness engendered by hopelessness, cognitive distortions, and suicidal symptomatology. A person may have arrived at a “well-considered decision” even while beset with one or more of these symptoms.

4. Require a “lack of a reasonable treatment alternative” criterion.

What counts as “reasonable” depends on the perspective. A psychiatrist may believe that there is a reasonable treatment alternative, while the patient does not want that treatment. In such a situation, would the patient be denied MAiD? Probably not, given that current MAiD legislation protects patient treatment refusals. And so, some people who could get better will die.

The sad reality is the majority of Canadians do not have full or timely access to effective mental health treatment options. If the government does not make treatment available and simultaneously permits and enables suicide, it has tragically failed in its duty of care.

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John Maher is an assertive community treatment (ACT) psychiatrist, President of the Ontario Association for ACT and FACT, and Editor-in-Chief of the Journal of Ethics in Mental Health