Inclusion of mental illness puts more emphasis on judgment calls: Gluckstein's Brian Moher
This article was produced in partnership with Gluckstein Lawyers.
In the wake of changes to Canada’s Medical Assistance in Dying (MAID) legislation, a recent news story about a 51-year-old Toronto woman with severe sensitivities to chemicals who applied for medically assisted death after failing to secure appropriate housing caught the attention of Brian Moher, senior associate at Gluckstein Lawyers. Though an extreme example, the situation highlights the implications of expanded eligibility requirements for people who are vulnerable through mental illness.
Following a 2019 change to the wording of MAID legislation from allowing those whose death was “reasonably foreseeable” to those who have a “grievous and irremediable” medical condition to apply for assisted death, the door was opened for those suffering only from mental illness to seek the right to apply as well. Further legislative changes in March 2021 expanded eligibility requirements to allow mental illness as a sole reason to request MAID, but the doctors assessing these cases “will have even greater exposure,” warns Moher.
The criteria for determining whether somebody is eligible by virtue of a mental illness is profoundly subjective, with MAID legislation currently stating that “the patient provides consent: after having been informed of other means available to them, including counselling, mental health supports, disability supports, community services and palliative care; and after having been offered consultation with relevant professionals, as available and applicable; and after having discussed these means with the medical or nurse practitioner and given serious consideration to these means.”
That’s a judgment call, Moher notes, and “we see it really fall apart in the example of the woman who couldn’t find a suitable place to live.” The woman suffered from multiple chemical sensitivities (MCS), including to cigarette smoke and cleaning product fumes, but the symptoms of the chronic condition – also referred to as an environmental illness or environmental allergies – are alleviated when chemicals are removed from a person’s environment. After failing to find housing that accommodated her needs despite the advocacy of doctors and some social services, her assisted death was approved and occurred in February.
“They can say they told her about all available means to relieve her suffering, but her issue was housing: how can we say that criteria was actually met? The assessments of people who are mentally ill are going to ride almost entirely on the subjective evaluation of a physician,” says Moher. “With these amendments, psychologically unwell people are now eligible for assisted suicide, but the argument is that it’s not an acceptable policy change because effectively it’s easier to not have to treat these people by allowing them to avail themselves of this option.”
The expanded eligibility is sun downed until March 2023 to allow experts to “conduct an independent review of recommended protocols, guidance and safeguards.” In June, an expert panel suggested more training for nurse practitioners and doctors, clearer guidance and broad assessments that look at all possible options for people seeking MAID for their mental illness, including more social support. A parliamentary committee also released an interim report the same month highlighting the complexity of the issue, including questions about the terminology used in the legislation. For example, “irremediable,” “incurable” and “intolerable suffering” have no scientific or medical definitions, and Moher, who authored a paper on MAID in 2017 when it was new law, calls “the potential criminal ramifications flowing from a legal error involving a medical professional’s interpretation of highly subjective legislative language a frightening prospect.”
There has always been fallibility for the medical professionals involved when the applications go before the court for approval to complete medically assisted suicide, whether an application is accepted incorrectly or whether the court disagrees with the doctor and rejects an application, but with the sole qualifier of mental illness “we’re in an even more subjective area where we’re putting a lot more on the physician’s judgment call than we were with persons where capacity was not an issue.”
Determining capacity in the context of medically assisted death is a critical component, and according to Moher’s paper “a recurring theme in all of the court-authorized medically assisted deaths is the requirement for evidence of informed consent.” Obtaining it requires the healthcare professional to engage in a two-step process: Is the patient capable of making a particular treatment-related decision? If so, then has the patient been sufficiently informed about the proposed treatment? Speaking to a patient who has, for example, Lou Gehrig’s Disease but has perfect competence – like in Carter v. Canada, the case that triggered the legalization of MAID – is one thing, but it's another when dealing with someone who is mentally ill, Moher notes.
“If you’re dealing with profound depression, whether it’s circumstantial or not, who’s making the judgment call – and what happens if they’re wrong in their assessment of the person’s capacity? There’s exposure there due to an incompetent or substandard assessment of capacity.”
Though it’s unclear how the changes will play out, Moher’s sure of one thing: in light of the expanded eligibility requirements, there are profound implications for personal injury clients, both with physical disabilities as well as mental disabilities, and potentially for the physicians who will soon navigate a framework for more reliant on subjective judgment.
Brian joined Gluckstein in 2022. He was called to the Ontario Bar in 2005 and has devoted his career to complex litigation. He has acted as Trial and Appellate counsel with experience at Superior Court of Justice, Divisional Court, Court of Appeal, and the Supreme Court of Canada, as well as being appointed Pro Hac Vice counsel in the United States. Brian spent the first decade of his career as a health law defence lawyer in both civil and professional regulatory proceedings. In 2015, Brian started working as plaintiff’s counsel in medical negligence actions. Brian has practised as plaintiff class actions counsel since 2005.
