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Carter v Canada: The prudent position of the Federal Government on mental illness

The polarized perspectives on Physician Assisted Dying (PAD) mean that no matter where the Federal Government landed on the specific details of the implementation of the Carter v Canada decision, there would be a guaranteed outcry from one or both of the poles – those representing autonomy under the Charter of Rights and Freedoms and those concerned with the need to protect the vulnerable. There is certainly merit in the wish to include individuals with mental illness in the same rights as other citizens and not perpetuate a chronic stigma. However, anyone who has waded into the weeds of this issue and played out specific scenarios involving mental illness will inevitably recoil from the murkiness of the waters. Certainly, that has been my experience when given the opportunity to think deeply about the details of the implementation of Carter for those who suffer from mental illness. Assessment of capacity in those individuals whose very illness is associated with  hopelessness and suicidal thinking is very challenging – nothwithstanding the Supreme Court’s confidence that “duly qualified’ physicians are already in place and can be relied upon to make these assessments. It is no surprise that the Canadian Psychiatric Association was unable to provide clear endorsement for mental illness as a possible criterion for accessing PAD and welcomed the cautious approach.

There are certainly elements of the Federal position that are of concern related to end of life decisions. However, until we have some first-hand experience with the implementation of the least contentious elements of Carter, then a cautious approach seems prudent and sensible for problematic areas like mental illness and advance directives for those suffering from dementia.  One would have hoped that we could learn from and rely on the experience of those jurisdictions where PAD is already in place but the experience in the Netherlands and Belgium is far from reassuring. For those individuals with mental illness who died by accessing PAD in the Netherlands and Belgium, 50% suffered from Personality Disorders and many with refractory depression had apparently not been offered treatment options that might have been effective. Do we want to go down that road? Better on balance, to err on the side of denying some potentially eligible individuals access to PAD (and I do think it is possible that some individuals with chronic intractable mental illness might be eligible) than to see unnecessary and even inappropriate deaths occurring before we have better consensus about the way forward on this very complex issue. For those charged with the implementation of physician-assisted dying, there is no room for dogmatism.

About Dr. Ken Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto in 1973 and did postgraduate training in Psychiatry at the University of Toronto. He then went on to do specialty training in Geriatric Psychiatry in London, England. Since 1978, he has been based at Sunnybrook Health Sciences Centre, University of Toronto. He is the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Currently, he is the Chief of the Brain Sciences Program at Sunnybrook. Dr. Shulman has had a longstanding interest in the issue of testamentary capacity and vulnerability to undue influence and has been qualified as an expert witness in Estate matters in Ontario and Alberta. Together with colleagues he has published several papers in the area of testamentary capacity in international journals and is a frequent presenter at legal continuing education conferences on Estates and Trusts. Email: