Cross Country Checkup

MAID has been legal in Belgium since 2002. But mental health-related cases remain complicated, says doctor

Dr. Marc van Hoey says that a recent court case in Belgium where three doctors were charged with murder after a woman who was granted MAID may have a chilling effect on the medical community, especially in cases involving mental illness.

Proposed changes to Canada's MAID laws would disqualify people with mental illness as main condition

Protesters stand in front of a banner which reads 'Euthanasia Stop' during an anti-euthanasia demonstration in Brussels in 2014. (Virginia Mayo/The Associated Press)

The question of where mental illness falls in the conversation about medical assistance in dying (MAID) can be seen in a recent Belgian court case, where three doctors were charged with murder after granting a woman's request for a lethal injection in 2010.

Canada has also been contending with this question, as a new federal bill to amend the country's rules on MAID would disqualify people whose sole underlying condition is a mental illness from accessing MAID.

In January, a Belgian court acquitted three doctors in the death of 38-year-old Tine Nys, who requested and was given a lethal injection in 2010.

According to the New York Times, Nys was diagnosed with autism and long-term depression. Her sister argued that the doctors granted MAID before making an adequate effort to treat her mental illness.

Dr. Marc van Hoey, a Belgian doctor who performs medically assisted deaths, welcomed the acquittal. But he fears the charges alone could have a chilling effect on the medical community.

"The fear is that lots of doctors are stepping back or saying: 'OK, I'm going to fulfil euthanasia in case of the terminally ill, and maybe non-terminally ill.' But with psychiatric diseases, I think lots of doctors are going to be really afraid, because they don't want to be prosecuted and brought to court,'" he told Cross Country Checkup.

MAID has been legal in Belgium since 2002, and is allowed for patients who suffer from both physical and mental illnesses. The condition does not need to be fatal, but suffering must be "unbearable and untreatable." It can only be performed if two doctors approve the patient's request; for mental illnesses, the consent of three doctors is required.

Wayne Sumner, a professor emeritus of philosophy at the University of Toronto, argues there isn't a difference between determining whether someone is suffering from an incurable or unbearable mental illness, or a physical one.

Minister of Employment, Workforce Development and Disability Inclusion Carla Qualtrough, left, Justice Minister David Lametti and Health Minister Patty Hajdu announce details of new legislation on medical assisted dying in Ottawa on Feb. 24. (Sean Kilpatrick/The Canadian Press)

"I've always thought that what mattered most were [three] things. First of all, whether the person is … competent to make health-care decisions. ... Secondly, how remediable the condition is. And thirdly, the extent to which it's causing intolerable suffering," he said.

Sumner believes the exemption in the new bill is "simply kicking this issue down the road," pointing to an upcoming five-year review concerning mental illness and MAID which is set to begin in June.

"I'm hoping that once they're no longer under a time constraint and there's an opportunity to review this issue more thoroughly, that the exclusion in the current legislation will be dropped," he said.

Advance written consent for MAID

In Belgium, patients may also submit a written declaration in advance, allowing for MAID in the event they may be unable to verbally consent to it themselves as a result of sickness or accident.

Van Hoey says these situations only constitute about two to three per cent of all medically assisted deaths in Belgium.

He added that a symposium will be held in May to discuss whether the written declaration could be extended to include cases primarily involving mental illness.

"We think it is absolutely common sense — and the community is asking for it — that it should also be possible ... in cases of severe dementia," he said.

People with dementia, he noted, may not have the mental capability to give their doctors verbal or written consent for MAID once their condition has reached an advanced stage.

"That is why lots of people with Alzheimer's and other kinds of dementia are so afraid to become in the situation that they can't express it anymore, that they want to die earlier. And that's very hard to bear for the family."

The Liberal government tabled legislation Monday to amend the rules on medical assistance in dying (MAID). Justice Minister David Lametti spoke during a press conference Monday.  1:40

Sumner argues that Canada's proposal to remove the requirement for a patient's final consent could help avoid similar cases, whether they involve mental illness or not.

During a news conference in Ottawa, Justice Minister David Lametti cited the case of Audrey Parker, who chose a medically assisted death earlier than she wanted because she feared that doctors would deny her the procedure if she lost her mental capacity to consent before the time arrived.

"In a way it was perverse, because the longer the period in which they were expected to continue suffering, the less their access to medically assisted death as a way of dealing with that," said Sumner.

"So what's happening now is that perversity in the original law is being corrected."


Written by Jonathan Ore with files from CBC News and The Associated Press. Interviews produced by Allie Jaynes and Richard Raycraft.

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