I read with interest the article from Alexander Simpson on ethical issues with regard to medical assistance in dying (MAiD). I have long learned from reading ethical articles in regard to MAiD that there are certain conflicts of interest that need to be dealt with quite apart from the usual ones. For example, if Dr. Simpson has a religious affiliation, it would be useful to know this. There is a rich history of ethical “experts” in Canada who have strongly held religious views and have presented these views as “ethics.”
Dr. Simpson is correct that Bill C-14 restricts MAiD to situations in which death is “reasonably foreseeable.” He fails to identify, however, that there is a very important word, natural, describing death. This would likely preclude MAiD for patients whose death by suicide is “reasonably foreseeable.” At some point a specific legal challenge may be mounted on this point. Currently there are two other cases before the courts alleging that C14 is not compliant with Carter on other matters.
He is correct that the cases before the Supreme Court of Canada in Carter did not require a ruling with regard to “psychiatric disorders.” What he fails to acknowledge, however, is that the Carter decision clearly included psychiatric patients as being eligible for MAiD. This issue was tested in the courts in Alberta before Bill C-14 became law. The case involved “E.F.,” who was applying for MAiD based entirely on a psychiatric diagnosis.
On April 22, 2016, E.F. brought an application before the Alberta Court of Queen’s Bench based on the medical condition of a “severe conversion disorder.” Madam Justice M.R. Bast granted E.F. access to MAiD, but this was subsequently appealed by the Attorney General of Canada and the Attorney General of British Columbia.
The Court of Appeal consisted of a 3-person panel of Mr. Justice Peter Costigan, Madam Justice Mariana Paperny, and Madam Justice Patricia Rowbotham. The court concluded “persons with a psychiatric illness are not explicitly or inferentially excluded [from MAiD] if they fit the criteria.” Subsequently, E.F.’s right to MAiD was upheld unanimously. The appeal was dismissed.1
This decision was never appealed to the Supreme Court of Canada, and so it stands as a judicial precedent with regard to psychiatric illness and Carter. It is clear that Carter would allow for MAiD for psychiatric illness, but Bill C-14 does not.
In my opinion, this is one of the many ways in which Bill C-14 is not compatible with the Carter decision. At some point, a legal action may be mounted to challenge Bill C-14 as not being compliant with Carter.
Dr. Simpson argues primarily from the point of view of clinicians working in mental health. What he fails to recognize is that the Carter decision is not about physicians’ rights but about the autonomy and Charter rights of individual Canadians to have control over their death. I personally see no difference between medical and psychiatric illness. Both are conditions affecting the human body. Both can produce intolerable suffering. All psychiatric illness is a disorder of the brain. To discriminate between psychiatric patients and those with other medical conditions adds further to the stigma of psychiatric illness in my opinion.
Yours respectfully,
Derryck H. Smith, MD, FRCPC
Clinical Professor Emeritus, Department of Psychiatry
University of British Columbia
Footnotes
Declaration of Conflicting Interests: The authors declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: Dr. Smith was an expert witness in the Carter case and the “E.F.” case and is a current member of the Board of Dying with Dignity Canada and the Board of the World Federation of Right to Die Societies. Dr. Smith has no religious affiliation.
Reference
- 1. Canada (Attorney General) vs EF, 2016 ABCA 155, May 17, 2016, Docket 1601-0116-AC, Calgary. [Google Scholar]