Assisted Dying and the Overinclusive Problem
The case of mental disorders
Suppose you’re a lawmaker tasked with writing an assisted dying law. Broadly speaking, you can take one of two approaches.
You can focus on the criteria necessary to qualify. For example, New Zealand’s law includes a requirement that people must be “suffering from a terminal illness that is likely to end their life within six months.” Canada requires an individual to “have a grievous and irremediable medical condition,” which requires, among other things, having “a serious illness, disease or disability.”
You can focus on the medical conditions that qualify. In New Zealand’s case, that would include all the types of cancer that could cause death, plus all the other potential terminal illnesses. Canadian lawmakers could have listed the medical conditions that are serious enough to justify assisted dying instead of saying, more generally, that the illness, disease, or disability has to be serious.
Every jurisdiction has opted for the first option. This isn’t surprising. One problem with listing all the illnesses, diseases, and disabilities is that there are a lot of them. Sometimes, the law needs that kind of specificity, but it’s possible some would get left out or new ones will be created, so option one gives more flexibility.
Another reason is that option two involves value judgments. To list the conditions that count would require lawmakers to debate and decide which conditions are serious enough to justify assisted dying. This would be hard to do and would create controversies that option one avoids.
Option one is the better choice, but it has a downside, at least for assisted dying. The problem is that people will interpret the criteria to be more permissive than they actually are. Call this the overinclusive problem. It’s a recurring theme.
Mental Disorders
Last month, Vice News published an article called “Canada Will Legalize Medically Assisted Dying For Eligible People Addicted to Drugs”. Here’s the opening sentence: “Canada will legalize medically assisted dying for people who are addicted to drugs next spring, in a move some drug users and activists are calling ‘eugenics.’”
This had the predictable effect of getting picked up by sites around the world. Daily Mail, a British tabloid, ran an article the same day called “Canada to legalize euthanasia for DRUG ADDICTS with no other illness in March”. Others followed suit with a similar tone.
Although the Vice article goes on to describe the other eligibility criteria for a medically assisted death in Canada, it’s understandable that some readers could come away with the belief that having a substance use disorder is enough on its own to qualify for MAID.
This isn’t the case. Canada is set to begin allowing people to qualify for MAID based solely on a mental disorder in March, but, as is currently the case with physical conditions, people must meet all the criteria, including having a ‘grievous and irremediable medical condition’.
It’s possible that someone with a substance use disorder could meet the requirements. In fact, the Vice article describes a presentation by Dr. David Martell, physician lead for Addictions Medicine at Nova Scotia Health, who presented a framework for assessing people with substance use disorders for MAID at a conference in British Columbia. The framework was developed with a group of other experts, including psychiatrists and ethicists. Dr. Martell is being thorough. It’s possible that someone could meet all the MAID requirements because of a substance use disorder—developing an assessment framework is useful—but the number of such cases is likely to be very low.
This is the overinclusive problem. There are almost 300 mental disorders listed in the Diagnostic and Statistical Manual, commonly known as the DSM-5, which is used by clinicians to diagnose mental disorders. There are many hundreds of subcategories. The whole book is 1,120 pages. Instead of the law saying “illness, disease, or disability,” which will include mental illnesses, diseases, and disabilities in March, Canadian lawmakers could have specified the disorders that qualify. But there are a lot of them, and they come in different forms. Depression can be relatively mild and treatable, or it can be severe and resistant to treatment, so it would be hard to get it right.
To run the overinclusive problem, choose any entry from the DSM-5 and apply it to MAID. Daily Mail could publish an article every day:
Canada to legalize euthanasia for INSOMNIACS
Canada to legalize euthanasia for FETISHISTS
Canada to legalize euthanasia for people with PROLONGED GRIEF DISORDER
In principle, any disorder can qualify. This is the result of saying ‘mental disorders’ instead of making a list. This means that these headlines aren’t exactly false, but meeting all the requirements makes it unlikely that many types of disorder will ever qualify. And there’s a case for inclusion. When I think about a person whose insomnia is so bad and so resistant to treatment that she meets the criteria, MAID is ethically justified.
Listing specific medical conditions instead of criteria means the overinclusive problem won’t go away. However, it means we need to watch out for sensational headlines.
Quick Hits
Here are some other stories that caught my attention this week:
In my podcast interview with Rosalie Wyonch, she argues for expanding the powers of healthcare providers to the limits of their qualifications. It’s good to see Ontario giving more prescribing powers to nurses. Naturally, physicians aren’t happy.
There’s a risk that the federal government will further delay allowing mental disorders for MAID. James Cowan and Jocelyn Downie persuasively argue that this would be a mistake in a recent op-ed.
Toronto is experiencing a housing crisis while the city is experiencing a financial crisis. Olivia Chow’s plan to address affordable housing, which amounts to asking the provincial and federal governments for billions of dollars, is the wrong approach.
A group of sixteen psychiatrists wrote a banger of a response to the Globe and Mail’s bad editorial arguing against allowing MAID for people with mental disorders.
Abstract art usually doesn’t do much for me. I found the Rothko Chapel in Houston very…purple, for instance. But I recently came across this nice article describing how most famous abstract artists began by painting representational art. It hasn’t changed my mind as such, but I better appreciate that people like Rothko and Picasso had the chops to make realistic paintings but chose to do abstracts (for some reason!).
I’ve had a few new paid subscribers sign up recently. Thank you so much! I can’t think of a better holiday gift for all your loved ones.