Mentally ill Canadians deserve the right to die with dignity

Mentally ill Canadians have been excluded from medical assistance in dying (MAID) but that is about to change in a few months.

image: Eastside-online

When that option arrives in March, 2023, Canada will have one of the most liberal MAID laws in the world, joining only a few other countries that allow access for the mentally ill.

As it now stands, only those with a “grievous and irremediable medical condition” can apply for MAID; not just if you are about to die from a fatal or terminal condition but if your life is insufferable.

The distinction between a medical and mental suffering is arbitrary and archaic. There is no mental suffering that isn’t physical. To suggest that we live in a world other than the physical is to perpetuate the ancient notion of a mind/body duality.

To prevent mentally ill Canadians with a “grievous and irremediable” from access to MAID is to further discriminate against the mentally/physically ill. Like the notion of a mind/body duality, made popular by Rene Descartes in the 17th century, mental illness has been characterized in voodoo terms, such as possession by demons.

Mental/physical illness is stubbornly difficult to treat and those afflicted pay a price. The mentally/physically ill are often deemed unemployable and, as a result, are often poor and homeless. Their pain often has physical origins outside the body; victims of trauma, childhood abuse and addiction; symptoms compounded by financial stress and loneliness.

In contrast, those who now access MAID come from a position of privilege.

They tend to be wealthier Canadians. More likely, as an Ontario study found, to fall into the highest income bracket. They have been, in other words, people of relative privilege, wanting the same control in death that they had in life.

The same group of wealthy Canadians who have access to health care also have access to MAID, and the numbers are growing.

In 2021, there were 10,064 assisted deaths in Canada – an increase of 32 per cent over 2020. The average age of Canadians who received MAID last year was 76. Two-thirds have a cancer diagnosis, and nearly one-fifth have a heart condition.

Doctors critical of MAID suggest that assisted dying for the mentally/physically ill will become an easy out for a broken health care system, offering death rather than hope and treatment to society’s most vulnerable and marginalized citizens.

Yeah, right. If you happen to be living an insufferable and irremediable life, just wait for us to fix the broken health care system. Shouldn’t take more than a few decades. Meanwhile, just grin and bear it.

Can doctors, a privileged group of people living in a society that routinely stigmatizes people with disabilities, objectively judge what makes life worth living?

Some worry that there will be a flood of new applicants for MAID but if the Netherlands is any example, the number of mental/physical cases will be a tiny fraction of the total. The Netherlands has had psychiatric illness available for MAID for two decades.

Expanding MAID is about not discriminating between mental and physical health, but seeing patients as whole people capable of making their own decisions.

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Mentally ill street people need institutional health care

While I don’t want to see a return of the warehousing of mentally ill patients, some institutional care facilities need to be built to care for the mentally ill people left to their own resources on the street.

I’m well aware of the old mental hospitals because my father was a patient in one. It was located north of Edmonton in Oliver, built in 1923 when eugenics was popular.

image: The Eugenics Archives

Based on animal husbandry, eugenics promoted the idea that undesirable traits could be bred out of human genetic lines.

My dad admitted himself to Oliver with “manic depression,” now called bipolar disorder, and died there in 1970.

I visited him often and wished that the drugs that were being developed could be used to treat him. I was convinced that with medication other than shock treatment, he could have led a functional life.

With advent of drug treatment and de-stigmatization of mental illness, mental hospitals were closed. Patients were supposed to be transferred to group homes and care facilities in the community. But in their haste to save money with the closure of expensive hospitals, not enough care facilities were provided and mentally ill people were left to their own resources on the streets.

Not just Alberta but all of Canada emptied their mental hospitals with few places for them to go. In B.C., Riverview hospital was the mental hospital.

Opened in 1913, Riverview was designed to hold 480 patients but had twice that number by the end of the year. With further expansion of the buildings, numbers swelled to 4,306 by 1959.

The Social Credit government of the day closed the hospital with plans to integrate patients into the community, but more often patients ended up in the Downtown Eastside of Vancouver.

Mentally ill people on the street need more than housing. They need treatment. And when they are incapable of realizing the downward trajectory of their lives, they must be forcibly institutionalized.

The forcible treatment of ill people goes against a notion of freedom: that everyone should be free to choose medical treatment.

But involuntary care is something that premier-apparent David Eby has talked about as a possibility, a stance that produced criticism from people who said forcing drug users into sobriety is inhumane and ultimately not workable.

Mayors of B.C. cities have identified mental illness as a major issue with increasingly difficult behaviour problems, along with the separate issue of repeat criminal activity in public places.

Mayors Krog and Basran, of Nanaimo and Kelowna respectively, say involuntary treatment is not about forced sobriety, but about making sure there is secure housing to protect people with brain damage and severe mental illness from hurting themselves and others.

“We have no problem doing that for someone who has Alzheimer’s,” said Mayor Basran. “Why wouldn’t we have a scenario where we do the same for these people?”

We’ve come a long way from eugenics. Mentally ill people represent a wide range of illness from behavior issues to brain disease. Surely, we can determine which of those are seriously ill and help them

When I see the bedlam on the streets of Kamloops, I can’t help but remember how much better the lives of patients were at Oliver.

Finally, a challenge to detention of ‘certifiable’ people in BC

Unlike other Canadian jurisdictions, those who are deemed to be mentally ill in British Columbia can be held indefinitely. B.C. does not have an automatic review of ongoing detention and unless individuals can take the case to the court, there is no recourse.

image: BC Mental Health Rights

That means that persons, who may or may not be mentally ill, can be held endlessly. Who is deemed “mentally ill” can be arbitrary. Those with cognitive impairments or genetic illnesses that impair their ability to communicate can be held in institutions under a doctor’s orders.

More than 25,000 people detained every year under BC’s Mental Health Act.

“BC is the only jurisdiction in Canada that still uses a ‘deemed consent’ model, which violates the Canadian Charter and the UN Convention on the Rights of Persons with Disabilities,” says Michael Feder, a lawyer for the Council of Canadians With Disabilities (CCD).

Deemed consent means that people who are involuntarily detained under BC’s Mental Health Act are assumed to have given consent to detainment and treatment.  They are legally forced to receive all psychiatric treatment, including medications and electroconvulsive therapy -even when they are mentally capable of making their own treatment decisions.

The law also deprives detained individuals the right to a substitute decision maker, like a representative or family member, to give or refuse treatment on their behalf.

It’s difficult, but not impossible for wrongly detained people to gain freedom –but only if they take the case to court themselves.

Take the case of “A.H.,” a First Nations 39-year-old woman who was wrongfully detained for almost a year.

In a court case between A.H. and the Fraser Health Authority, the Supreme Court of B.C. learned that A.H. had been held against her will and that she was not even found to be mentally ill.

It wasn’t a simple case. A.H. suffers from cognitive impairments and mental health issues. She has a history of substance abuse, family violence and sexual abuse. She was also diagnosed with Fetal Alcohol Spectrum Disorder (FASD).

A.H.’s mother sexually exploited her by pressuring her to drink alcohol and take drugs to make her compliant to sexual abuse.

However, many of those held against their will don’t have the resources to take their case to court. In that event, they will languish indefinitely. Michael Feder says:

“Some courts, including the trial court in our case, have been rigid in their view that challenges must be brought by affected individuals, despite whatever barriers they may face and no matter how marginalized or disadvantaged they may be.”

In the past two psychiatric patients tried to challenge the law but given their fragile condition, withdrew.  People with cognitive impairments, or those who face cultural or racial bias, are not well equipped to handle the stress of legal cases. The B.C. government asked the court to dismiss the challenge because the two had withdrawn from the case. The B.C. Supreme Court agreed, saying that without the individuals involved the case lacked the kind of factual context that courts need to review constitutional issues. The B.C. Court of Appeal disagreed with the B.C. Supreme Court, stressing the importance of access to justice. B.C. then appealed the ruling to the Supreme Court of Canada.

The Supreme Court of Canada is allowing a constitutional challenge to go ahead against B.C.’s law that authorizes the confinement and forcible treatment of psychiatric patients in British Columbia.

It’s about time.

Don’t confuse all the homeless with Kamloops’ street menagerie

A few deranged, mentally ill and brain-addled addicts on Kamloops’ streets get a lot of attention. But don’t label all the homeless as troublemakers.

Image: Mel Rothenburger, Kamloops

Kamloops RCMP superintendent Syd Lecky shares in the frustration of residents and business owners who notice the same people committing crimes repeatedly.

“When you have them back on the street in a short period of time, it is frustrating,” said Lecky. “And it does challenge us in terms of being able to manage the risk… whether the risk for these offenders to continue offending, whether it be violence or property crime. It’s really going to create some pressure on us to be able to put an end to that.”

Some of the homeless are just regular folk who choose to live outdoors. I get that.

I first met my neighbour Paul when he was living in a river bank one block from my house in Westsyde. I say “my neighbour” because, except that he lived outside, he was friendlier than some of my neighbours.

Although he lived nearby, Paul was hard to find.

I discovered his campsite when I noticed that the grass had been disturbed down a steep river bank. Curious, I carefully descended the bank and found myself in an almost impenetrable thicket.

A voice came from my left: “Come around this way, it’s easier,” as he welcomed me to his humble abode. Paul, in his forties, had notched a level spot in the river bank and strung a tarp over his shelter; his modest belongings arranged around him. He introduced himself and I sat down to chat.

Years ago, Paul had been a sheltered neighbour just a few blocks away. After his divorce, he lost his house and wandered around from town to town before returning to Kamloops. He was outgoing and happy to tell me his life story. We exchanged cell phone numbers and I left.

When I went back a few months later, Paul was gone.

I understand the appeal of living outside. When I hitchhiked in Australia, I used to set up camp in the bush near small towns. I’d walk into town; my gear stowed in what I hoped would be in an undetected spot.

It was a great way to travel. I’d buy groceries and hang out with locals in the pub.

However, being homeless and living on the street is not so idyllic. It can be a living hell. According to the most recent survey of Kamloops’ homeless, 40 per cent of those surveyed were first homeless from ages 10 to 19. Many of those “aged out” of foster care with few survival skills.

Almost one-half of respondents indentified as indigenous.

Not only do many of these teenagers have few life skills, they can have disabilities such as Foetal Alcohol Syndrome (FAS). That leaves them vulnerable to exploitation by unscrupulous individuals. They become a resource in the quagmire of street life; in prostitution and dealing drugs.

For indigenous street people who have aged out of the foster care system, the loss of identity is debilitating. They are doubly resentful of a system that is rigged against them –stripped of their culture and exploited by a toxic street culture.

If young people weren’t mentally ill and addicted to begin with, the gritty street life will soon make them so.

Regrettably, low-cost housing will not solve their devastating problems. At one time they might have been cared for in institutions such as Tranquille.

Now their future looks bleak.

B.C. denies the mentally ill their constitutional rights

“Unlike most of country, B.C.’s legislation does not provide a lawyer for people with mental illness facing involuntary detention,” says Jay Chalke, B.C.’s ombudsperson (Globe and Mail, September 2, 2020)

Image: In These Times

Unlike other Canadian jurisdictions, mentally ill people can be held indefinitely -B.C. does not have an automatic review of ongoing detention.

That means that people, who may or may not be mentally ill, can be held endlessly.

Detention of people under the guise of mental illness can have political overtones. The Soviet Union misused psychiatry to get rid of political opponents. The term “philosophical intoxication,” a pseudo-scientific term for mental disorders, was applied to people who disagreed with the country’s Communist leaders.

I don’t mean to suggest that the government of B.C. is detaining political opponents under the Mental Health Act.  But systemic paternalism and racism can play a role.

And I don’t deny that mentally ill people who are violent need be detained for their own safety and the safety of others. The forced detention of unstable persons under the Mental Health Act is not the issue.

Given the treatment of Indigenous people as wards of the state, the detention of First Nations persons presents a complicating layer.

Take the case of “A.H.,” a First Nations 39-year-old woman who was wrongfully detained for almost a year.

In a court case between A.H. and the Fraser Health Authority, the Supreme Court of B.C. learned that A.H. had been held against her will and that she was not even found to be mentally ill.

It wasn’t a simple case -A.H. suffers from cognitive impairments and mental health issues. She has a history of substance abuse, family violence and sexual abuse. She was also diagnosed with Fetal Alcohol Spectrum Disorder (FASD).

A.H.’s mother sexually exploited her by pressuring her to drink alcohol and take drugs to make her compliant to sexual abuse. She did not have clean clothes or sufficient food.

After she was detained, authorization to hold her longer than 48 hours under the Mental Health Act expired. Despite that, she remained captive. She asked staff to provide a lawyer but staff said they couldn’t help. She was not told why she was being detained and tried to escape. On at least one occasion, A.H. was physically restrained with mechanical restraints that tied her to the bed. She was forced to take medications, including sedatives.

In her ruling of the case in 2019, Honourable Madam Justice Warren said:

“However, the procedures for Mental Health Act certification were not followed and there is no evidence that A.H. was certifiable under that legislation.

“The detention decision deprived A.H. of her liberty, the most fundamental of her rights.  The consequences could scarcely have been more serious.  It is apparent that A.H. did not understand the basis for her detention or the reasons for it.  She expressed, multiple times during the course of the detention, confusion about her ongoing detention, repeatedly asking why she could not go home.”

The detention of unstable mentally ill people under B.C.’ Mental Health Act is necessary for the protection of themselves and others. But the unjustified detention of people under the pretext of doing it for their own good smacks of paternalism, and in the case of First Nations people, colonialism.