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Medically assisted dying should be part of health-care decisions: Sunshine

Medically assisted dying for people who suffer from mental illness is a complicated issue, Toronto health lawyer Elyse Sunshine tells Zoomer Radio.

Providing medical assistance in dying, also known as MAID, to people who suffer from a mental illness is a multifaceted topic but in law, generally speaking, the difficulty stems from the fact that most people suffering from mental illness cannot consent and whether they can meet the test for grievous and irremediable medical conditions, she tells AdvocateDaily.com.

"This is one of the main concerns about providing medical assistance in dying to people with an incurable mental illness," says Sunshine, a partner with Rosen Sunshine LLP, who spoke during a recent roundtable discussion about the medical, legal and religious issues and ethics involved in medically assisted dying during the Family On Air show.

The federal law dealing with medically assisted dying came into effect June 17, 2016, in response to a Supreme Court of Canada's decision declaring down the Canadian Criminal Code prohibitions on MAID as unconstitutional in certain circumstances.

The court found the combined effect of the relevant Criminal Code provisions was unconstitutional where it prohibited medically assisted dying for “a competent adult person who clearly consents to termination of life and has a grievous and irremediable medical condition. That condition includes illness, disease or disability that is intolerable to the individual."

The current legislation is more restrictive than the Supreme Court decision, which made assisted dying available to any consenting, competent adult suffering intolerably from a grievous and irremediable medical condition.

But the law is much narrower in scope.

To have access to MAID, a person must be eligible for publicly funded health services in Canada, be 18 years or older and capable of making decisions with respect to their health, have a grievous and irremediable medical condition, make a voluntary request for assistance that is not the result of external pressure, and provide informed consent to receive medical assistance in dying after having been apprised of other means available to relieve suffering, including palliative care.

Among the issues physicians and lawyers have been struggling with is defining a grievous and irremediable medical condition, Sunshine tells Zoomer.

The legislation outlines the criteria, which all must be met, including the patient having a serious and incurable illness, disease or disability, be in an advanced state of irreversible decline in capability; and that condition causes them enduring physical or psychological suffering intolerable to them and can't be relieved under conditions they consider acceptable; and the patient’s natural death has become reasonably foreseeable, considering medical circumstances without a prognosis necessarily made as to the specific length of time the individual has to live.

With mental illness generally, the fact someone has a mental illness does not mean they cannot consent, Sunshine tells AdvocateDaily.com. Capacity can be assessed just as it is for any treatment decision, she says.

While the legislation doesn’t explicitly ban assisted death for individuals whose sole condition is a severe mental illness, practically speaking, the law will often exclude people whose suffering results from a mental illness, Sunshine says. This is because of the definition of grievous and irremediable condition, where in order to be eligible for MAID, one requirement is that death must be considered to be “reasonably foreseeable,” and this is a challenging one when dealing with a mental illness, she says.

Under current law, advance requests for dying are not permitted. This means that someone who has a condition that could ultimately render them incapable of making treatment decisions, like Alzheimer’s, cannot consent while they are still capable to agree to a medically assisted death that would be carried out at a later time.

Without advance requests, these individuals will most certainly be found ineligible for MAID because they will likely lose competency before they reach the required “advanced state of irreversible decline” outlined in the eligibility criteria, Sunshine tells Zoomer.

Although studies show many health practitioners and the general public in Canada are uncomfortable with extending the right to die to mentally ill patients, the Canadian Bar Association recently voted to urge the federal government to reconsider its exclusion of the mentally ill, she tells AdvocateDaily.com

"Capacity to consent to MAID can be assessed just like it is for any treatment decision," Sunshine tells Zoomer. "There are people who have quite profound mental illnesses who are at times capable of making those decisions and our doctors and health-care providers assess capacity on a daily basis.

"The real concern that keeps raising its head is this issue of reasonable foreseeability. The determination of when death is reasonably foreseeable in the case of a mental illness is a challenge that health-care providers face," she says.

Sunshine says there are challenges in the legislation making it difficult even with those whose mental incapacity stems from a deteriorating medical condition.

"So for those people, there's some talk about having these advanced requests available and right now they're not permitted," she says during the roundtable.

"MAID is, and should be, no different than any other care decision," Sunshine tells AdvocateDaily.com.

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