Shrinks, Death and Videotapes

One of the primary arguments used by opponents of medical aid in dying (MAID) is that many, many terminally ill people are depressed and that with proper mental health treatment, they would never seek out medications to assure a peaceful death in the first place.

This concern appears to underlie the proposed amendment from New York Governor Kathy Hochul to add a requirement to the state’s medical aid in dying bill, which is pending her signature, for all MAID applicants to first undergo a psychiatric evaluation.

I wanted to take a closer look at the mental health argument.

It certainly is true that rates of depression among the terminally ill are generally higher than in the general population, and palliative care workers say depression in the dying is frequently under diagnosed. But exactly how much higher is more difficult to gauge.

Studies vary widely from 13 percent to 77 percent, against 6-10 percent in the broader populace, depending upon how depression is defined and what evaluation method is used. How do you distinguish, for instance, between anxiety, sadness and grief, which would be normal reactions expected of someone told they have less than six months, and true clinical depression? How do you distinguish between disturbed sleep, fatigue and lack of interest in events - classic signs of depression - and side effects of medications from the underlying disease and the dying process itself?

Hawaii is the one state that does mandate patients seeking medical aid in dying undergo a mental capacity evaluation by a qualified mental health professional, in addition to assessments by their attending and/or consulting physicians, to ensure they have the capacity for self-determination in their end-of-life choices.

The other 10 states and the District of Columbia where MAID is legal require the attending doctors to make the mental health assessment and only refer patients to a psychiatrist or mental health professional if they believe patients have depression or a psychiatric disorder that impairs their ability to make a truly informed decision.

Referrals are not the norm. Data released by Oregon and Washington, the states with the longest history of MAID, show they are made 4-5 percent of the time. Opponents argue that this is evidence that more aggressive measures are required.

Accepting for now that depression is frequently undiagnosed in the dying and that some people would benefit from expert mental health care, what effect would a mandatory visit to a psychiatrist have upon MAID?

Its primary impact would be to place another hurdle in the pathway of patients. Applying for MAID already is a stressful process, taking at least three or four weeks in most jurisdictions to find two doctors, complete the first and second verbal requests, submit a written request and sworn statements, plus a waiting period. These are guardrails to ensure the decision is not taken hastily.

Adding a psychiatric consultation would significantly delay what already is a slow process. There is a dramatic shortage of mental health professionals in the United States. The average wait time for a new appointment is over two months, according to the journal General Hospital Psychiatry.

Delay probably is the primary objective of those seeking the change. It is the tactic that anti-abortion activists used when they were rolling back reproductive choice, and now these same right-to-life groups are targeting choice at the end of life: Delay and delay, until it is too late. When opponents’ fundamental belief is that MAID is morally and spiritually wrong and they equate seeking a peaceful death with suicide, then any measure that disrupts the law in their view has merit. Making access more difficult is their purpose.

We can argue about whether depression is under-treated, but why engage in debate if the goal is not to improve the law, rather to throw sand in the gears? How else to explain another amendment Hochul has suggested, which I frankly find bizarre – to require that New Yorkers videotape their MAID requests. For what purpose? To what end? How ghoulish is that.

My concern with the New York governor’s proposals is that she is seeking to placate a group that is implacable, and in doing so would not improve the law but make it more burdensome.

The primary reason people give for requesting MAID is that they want to avoid a prolonged, intractably painful, even agonizing death. This is a reasonable fear, not evidence of clinical depression. And the irony is that upon receiving the prescription, many report any feelings of depression lift: they have options now, are at peace and ready to face death.

Surely that is how we all want to end our lives?