5.3.3 Depression in the context of a request for medical assistance in dying
Charlotte Gauthier, MD, Resident in Psychiatry, Université de Montréal
Mona Gupta, MD, PhD, FRCPC, Psychiatrist, Centre hospitalier de l’Université de Montréal
- Understand the legal framework of medical assistance in dying in Canada and Québec
- Understand the concept of intolerable and enduring or constant suffering
- Discuss the concept of capacity in a context of mental illness
At the federal level, the Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), also called Bill C-14, was enacted in June 2016. It stipulates that medical assistance in dying may be administered to a person who requests it if they meet a number of criteria1, including a grievous and irremediable medical condition, which is defined by the following:
- “They have a serious and incurable illness, disease or disability;
- They are in an advanced state of irreversible decline in capability;
- That illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
- Their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”
In Quebec, an Act Respecting End-of-Life Care was passed by a vote in the National Assembly in June 2014, and came into force on December 2015. The eligibility criteria differ in certain respects from those of the federal act. They are as follows:
- “Be an insured person within the meaning of the Health Insurance Act;
- Be of full age and capable of giving consent to care;
- Be at the end of life;
- Suffer from a serious and incurable illness;
- Be in an advanced state of irreversible decline in capability; and
- Experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.”
We note that prognosis is approached differently in the two laws: The Quebec law refers to the “end of life” (a concept that is not clearly defined), while the federal act refers to “reasonably foreseeable death”. The difference in the use of the French terms “psychique” [in the Quebec law] and “psychologique” [in the federal law]2 may be explained by the intention of the Quebec legislator to highlight the various possible aspects of suffering, whether psychological, spiritual, existential, etc. (Gupta 2017).
The Canadian legislator sought to exclude requests for medical assistance in dying based solely on suffering caused by a psychiatric pathology.3 In so doing, Canada adopted a position similar to that of Belgium and contrary to that of the Netherlands.
In the literature, it is estimated that the prevalence of depressive symptoms in cancer patients ranges from 15% to 50%. Five somatic symptoms were reported in more than half of cancer patients (several of which are also diagnostic criteria for major depressive disorder): fatigue, pain, loss of energy, weakness and loss of appetite (Rosenstein 2011). It is reported that 5% to 20% of cancer patients will meet the criteria for major depressive disorder at some point in the course of their disease.
Finally, in the general population, only 28% of patients treated for major depression experience remission with a single antidepressant. The remission rates decrease with each successive treatment failure, such that after four antidepressant trials, only 60% of patients would be considered in remission (Lipsman 2014). Therefore, as treatment-refractory depression is far from being an exception, it is pertinent to examine the ethical implications of this illness as relates to medical assistance in dying.
Mr. B. is a 55-year-old man. He has been divorced for about 15 years and has no children. He does not have any close friends. He worked as an IT specialist from age 21 to 45, but has been off work on long-term disability for 10 years due to treatment-refractory depression. Several classes and combinations of antidepressants have been tried, without much success. He is currently taking venlafaxine 375 mg, aripiprazole 15 mg and quetiapine 150 mg. He has never attempted suicide, but expressed suicidal ideation without a specific plan several years ago. On his current treatment, he continues to have residual signs and symptoms of depression: moderate sadness, social dysfunction and sleep often disturbed by nightmares, but his self-esteem and appetite are preserved, and his cognitive functions are intact. He does take pleasure in certain activities (fishing, reading, hiking).
A few months ago, Mr. B. consulted his family physician for rectal bleeding combined with weight loss. Following investigations, a diagnosis of stage IV colon cancer with liver metastases was made. He was assessed by an oncologist, who recommended liver surgery (metastasectomy) followed by Folfox chemotherapy, a treatment with a 5-year survival rate of approximately 13%. He refused this therapeutic option and instead requested relief of his symptoms as they appear.
At his last appointment with his oncologist, Mr. B. requested medical assistance in dying, citing the suffering that he has been experiencing for years, which has worsened to the point of becoming intolerable since he was diagnosed with cancer. He has once again begun to suffer from terminal insomnia, has less and less energy and his appetite has declined. He has been experiencing constant intense sadness and feels no pleasure. He has no hope for the future and does not see any meaning in his life. He does not have a suicide plan. Apart from his lack of energy and appetite, he does not yet have any physical symptoms of his cancer.
- According to the criteria set out in a) the federal law and b) the Quebec law, is this patient eligible to receive medical assistance in dying?
- Should this patient be considered incapable to make such a request on the basis of his depression?
- If a person asserts that his/her suffering is intolerable, should a physician be able to judge whether or not it is? If so, how?
- Let us imagine the following hypothetical situation. The patient’s psychiatrist suggests treatment with electroconvulsive therapy, which has demonstrated good results in patients with treatment refractory depression. Mr. B. says that he has no reason to believe that this treatment would work when the others have failed and that he dislikes the idea of electroconvulsive therapy and refuses to try it. Does the fact of refusing an alternative treatment for depression – which might relieve his psychological suffering – mean that he should not have access to medical assistance in dying?
In conclusion, the case of Mr. B. raises several questions, both legal and ethical. To resolve them, we must attempt to strike a balance between the competing ethical principles involved, namely, respect for autonomy and dignity at the end of life on the one hand, and non-maleficence on the other, in the form of protecting a vulnerable patient from the consequences of such a request. In order to decide which of the principles takes precedence, an in-depth review of the situation is required. It will be necessary to carefully determine whether Mr. B. is capable of consenting ti medical assistance in dying, particularly in terms of his appreciation and understanding of his situation, and whether we can really determine that his suffering is intolerable and that it is not the reflection of emotional or psychological vulnerability. If, and only if, these conditions are met, will respect for autonomy take precedence.
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Dr. Suzanne Leclair
Dr. Jacynthe Rivest
1 In addition to having a grievous and irremediable medical condition, the person “must be eligible for health services funded by a government in Canada ; be at least 18 years of age and capable of making decisions with respect to their health ; have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure ; and give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.”
2 Translator’s note : the English version of both acts uses the term “psychological”.
3 That being said, people with a mental illness are not explicitly excluded from the medical assistance in dying regime, but very few clinical cases would be able to fulfill the existing criteria (Department of Justice, 2016).
4 The effectiveness of ECT in patients without prior therapeutic failure is 65% and diminishes to 50 % in patients with known resistance to pharmacological or psychological treatment (Milev 2016).
5 In the absence of legislation concerning competence (capacity) in Quebec, Quebec case law has relied on the Nova Scotia criteria set out in the Hospitals Act. However, depending on which Canadian province you are in, there may be criteria for capacity defined in the legislation.