All About Estates

Update on MAiD: Mental Disorder as a Sole Underlying Medical Condition

In Canada, the law no longer restricts medical assistance in dying (MAiD) to people whose death is reasonably foreseeable: as of March 17, 2023, people with a mental disorder as a sole underlying medical condition (MD-SUMC) will be eligible for MAiD.

The Special Joint Committee on MAiD (the Committee) was tasked with reviewing MAiD relating to mature minors, advance requests, mental illness, the state of palliative care in Canada, and the protection of Canadians with disabilities. The Committee was initially required to submit its final report by June 23, 2022, but the deadline was extended to October17, 2022. This new deadline is coincidently just after the annual meeting of the Canadian Academy of Geriatric Psychiatry taking place in Montreal, where I will be leading a workshop titled “Capacity to Consent to MAiD: are amendments in keeping with Public Health Law Policy warranted?” (my opinion on this is discussed briefly in my previous blog).

Regarding capacity to consent to MAiD MD-SUMC, the Committee heard from various experts and reported selected comments that include:

  • Health care practitioners “may need to up the ante a little bit, and take more time with the patient, but no unique skill set is required.”
  • Supported decision-making as applied to MAID “requires further reflection and research.”
  • If capacity is unclear, “MAiD should not be offered, but that uncertainty in some cases should not justify a complete ban on MAiD MD-SUMC.”
  • Prior to March 2023, “we must have standards of practice, clear guidelines, adequate training for practitioners, comprehensive patient assessments and meaningful oversight in place for the case of MAiD MD-SUMC.”

Clinical guidelines may provide guidance about how to assess a patient’s mental state and decision-making capacity, but they do not explicitly state what the threshold test for capacity should be. The threshold concept of assessment of capacity suggests the evaluation should relate to risk. Since the patient is making a decision which involves a risk of death or serious injury, the patient’s capacity should be tested more rigorously and a more exacting examination of the evidence is required. Yet, leading experts in capacity evaluation have opined that the standards and thresholds for deciding whether a person has the specific capacity to consent to MAiD cannot be scientifically determined.[i]

Canadian data from 2019 on all individuals who received MAiD (pre- MD-SUMC eligibility) showed that suffering was most commonly related to the loss of ability to engage in meaningful life activities (82.1% of cases) and to perform activities of daily living (78.1% of cases).[ii] A recent qualitative study from the Netherlands reported that, among 53 geriatric patients who underwent MAiD in the absence of a life-threatening condition, a combination of medical, social, and existential issues was often associated with unbearable suffering leading to the MAiD request. This finding emphasized the need for a bio-psycho-social approach to assessment of eligibility.[iii]

A review of the limited published studies of bereaved caregivers of those who have been involved with the MAiD process suggests that, retrospectively, they do tend to view their loved one’s death in a positive light.[iv] However, aggrieved cases with a polar opposite view have also occurred in Canada.[v] [vi]

The Canadian Association of MAiD Assessors and Providers (CAMAP) produced a white paper on complex capacity assessments[vii] which suggests that in the presence of psychiatric illness, greater doubt can arise in the evaluation of hopelessness and suicidality. There may also be increased proneness to cognitive distortions that could affect decision-making capacity, such as filtering (focusing only on negative input rather than noticing the full picture); dichotomous thinking (seeing the world in black and white, all or nothing); overgeneralization (drawing a broad conclusion based on an isolated event); catastrophizing (imagining the worst case scenario); and arbitrary inference (drawing a conclusion in the absence of any evidence). A bio-psycho-social approach is required that includes assessment of impulsivity and ambivalence, and to assess for acute exacerbation of an underlying mental illness or a situational crisis.

The CAMAP white paper suggests that collateral history from those who know the patient well may be particularly helpful and, when possible, a longer assessment period with multiple separate assessments over time may be necessary to ensure the consistency and stability of the request.

Despite recommendations that clinicians consider the involvement of caregivers in the MAiD process,[viii] the model of MAiD delivery in Canada lacks a legislative requirement for caregivers to be included or considered in the formal MAiD evaluation.[ix] I suggest this is something the Committee should consider.

 

[i] Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 2nd ed. Baltimore, Williams & Wilkins, 1991

[ii] First annual report on Medical Assistance in Dying in Canada, 2019. Ottawa: Health Canada; 2020.

[iii] van den Berg V, van Thiel G, Zomers M, et al. Euthanasia and physician assisted suicide in patients with multiple geriatric syndromes. JAMA Intern Med 2021; 181:245-50.

[iv] Goldberg, R., Nissim, R., An, E., & Hales, S. (2021). Impact of medical assistance in dying (MAiD) on family caregivers. BMJ Supportive & Palliative Care11(1), 107-114.

[v] https://nationalpost.com/news/canada/the-troubling-debate-over-a-good-death-for-anyone-who-chooses

[vi] https://bc.ctvnews.ca/police-investigation-public-outcry-following-b-c-woman-s-medically-assisted-death-1.5881294

[vii] https://camapcanada.ca/wp-content/uploads/2022/02/Capacity-assessment.pdf

[viii] Gamondi C, Pott M, Preston N, et al. Family Caregivers’ Reflections on Experiences of Assisted Suicide in Switzerland: A Qualitative Interview Study. J Pain Symptom Manage 2018;55(4):1085-1094

[ix] Goldberg R, Nissim R, An E, et al Impact of medical assistance in dying (MAiD) on family caregivers BMJ Supportive & Palliative Care. Published Online First: 01 March 2019. doi: 10.1136/bmjspcare-2018-001686

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

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