What Canada can learn about MAiD for mental illness from Belgium and the Netherlands

Canadians are clearly divided on eligibility for medical assistance in dying (MAiD) based solely on mental illness. Since the recent passing of Bill C-39 to postpone MAiD eligibility for persons suffering solely from a mental illness gives policymakers and practitioners more time to prepare for 2024, we should review existing evidence from overseas.

According to the Angus Reid Institute, 51 per cent of our population opposes the idea of offering MAiD for irremediable mental illness. However, in Belgium and the Netherlands, MAiD for mental-health conditions like anxiety, depression, schizophrenia and PTSD has been legal since 2002.

The Centre for Addiction and Mental Health recommends that the decision to amend Canada’s MAiD legislation “should be informed by the experiences in other jurisdictions where it has previously been legalized.” Canada’s Expert Panel on MAiD and Mental Illness further agrees that Belgium and the Netherlands “have the most extensive set of safeguards, protocols and guidance overall.”

Still, this topic is complicated on an international scale. MAiD is illegal in most countries and remains controversial even in jurisdictions where it is permitted. Moreover, the field of mental-health care is filled with unknowns. Many conditions have vague diagnostic criteria and variable treatment effectiveness, not to mention that individual experiences and suffering can be subjective.

The landmark case of Tine Nys, the first of its kind to go to trial since Belgium legalized MAiD, is one example of these challenges for patients with mental illness. Nys received MAiD two months after her Asperger’s diagnosis, to the immense disappointment of her siblings, who accused the three physicians involved of unlawfully approving their sister’s request. Although the doctors were eventually cleared, the trial raised questions about the risks of expanding MAiD eligibility.

Cases in Belgium and the Netherlands are alternatively referenced to counter those who wish to exclude individuals with psychiatric disorders from accessing MAiD.

Psychiatrist and Senator Stan Kutcher, who sits on the Special Joint Committee on Medical Assistance in Dying, counters that there is “no slippery slope” in these two EU countries. In one recent tweet, he notes, “The number of people who accessed MAiD MD-SUMC medical assistance in dying where a mental disorder is the sole underlying medical condition] has been less than two per cent of all MAID deaths for the last five years.”

The senator played a key role in putting forth the sunset clause that temporarily restricts MAiD access for psychiatric patients. He, in accordance with the Canadian Psychiatric Association, deems the restriction discriminatory and unconstitutional.

Dutch psychiatrists in support of MAiD MD-SUMC also argue that psychiatric suffering could be worse than somatic suffering, indicating they believe in the right to a self-determined and dignified death for those who would otherwise commit suicide.

Some patients may seek assisted suicide mainly due to the absence of social supports rather than their medical condition.

However, such a complex issue should be explored in different contexts from multiple angles.

A closer look into two retrospective studies conducted in Belgium and the Netherlands sheds more light on the risks of MAiD MD-SUMC for both patients and providers. Both studies found that middle-aged and elderly women with depression comprised the majority of these requests. Social isolation was another common theme in the patients’ histories.

A 2015 review reports that only 35 of 100 Belgian patients suffering from psychiatric disorders went ahead with MAiD; 38 withdrew their request before a decision was made, and 11 cancelled or postponed the procedure following approval. These findings underscore the uncertainty associated with MAiD MD-SUMC. Individuals with irremediable mental illnesses may not necessarily be in the right state of mind to make this irreversible decision. Even those whose suffering cannot be fixed may suddenly change their minds.

Likewise, physicians do not always think alike. A 2016 review of 66 psychiatric MAiD cases in the Netherlands shows that about a quarter involved disagreements among physicians on whether the patient met all the MAiD criteria. This lack of consistency in clinical judgment concerning the patient’s competence, unbearable suffering or treatment futility further reflects how challenges in mental-health care can complicate MAiD.

Understanding these experiences in Belgium and the Netherlands is critical for planning and implementing sufficient safeguards to protect vulnerable populations once MAiD MD-SUMC becomes available here.

Part of this ongoing conversation involves the psychosocial aspects of suffering, since some patients may seek assisted suicide mainly due to the absence of social supports rather than their medical condition. Disability advocates therefore recommend adding safeguards to the MAiD assessment process to prevent social determinants of health from motivating people’s requests.

Madeline Li, a psychiatrist and MAiD provider at the University Health Network in Toronto, agrees that more can be learned from Belgium and the Netherlands. She explains, “There are legal requirements in Belgium and the Netherlands which are not being proposed for psychiatric MAiD in Canada, including an established federal qualitative oversight process on cases.”

Furthermore, Canada is less densely populated than Belgium or the Netherlands, whose residents are often in closer reach of mental-health care and thus may experience fewer barriers in accessing required psychiatric evaluations prior to MAiD requests. The relatively greater disparities in health-care access suggest that the same level of safeguarding in Canada may be even more necessary to minimize potential risks and pitfalls.

From federal laws and legal cases to medical guidelines and published studies in Belgium and the Netherlands, Canadians have the tools to make more informed decisions regarding MAiD eligibility for psychiatric patients. Continued learning on this matter of life and death is important to ensure individuals are not only treated with dignity, but also protected from inequity.