Canadian Medical Association plans for physician assisted
Commentary on revised draft framework (August, 2015)
Revised draft framework annotated
Principles-Based Approach to Assisted Dying in Canada (Backgrounder)
Supreme Court decision in "Carter" physician-assisted death case
On Oct. 15, 2014 the Supreme Court of Canada (SCC) heard an appeal in the
Carter case which concerns the legality of physician-assisted death
in Canada. On Feb. 6, 2015 the Court rendered a unanimous decision striking
down the Criminal Code absolute prohibition on
The Court suspended that decision for 12 months meaning that the current law
remains in force. This allows legislators and regulators time to respond,
should they so choose, with legislation. Federal Justice Minister Peter
MacKay initially indicated that the federal government might take the full
year of the suspension to provide a legislative response. He has also
indicated that no laws will be considered prior to the October 2015 federal
Some key elements of particular interest to the Canadian Medical Association
(CMA) are highlighted below.
Highlights of the decision from the physician perspective
- The Court quoted CMA's
policy statement about
supporting the rights of physicians to follow their conscience when deciding
whether or not to provide medical aid in dying and recognized that there is
a diversity of views within the physician community (para. 131 of the
- The Court recognized that its decision does not
compel in any regulatory scheme (para. 132).
- The category of patients described by the Court as eligible for medical
aid in dying is arguably not narrow. Patients do not have to suffer from a
terminal illness. Rather, in the words of the decision, they "must be
competent adults who clearly consent to the termination of life, and have a
grievous and that causes enduring suffering that is intolerable to the
individual" (para. 127). [The CMA has received an independent legal
opinion that any legislation or regulatory scheme that would limit the
category of patients eligible to access assisted dying to those with
terminal illnesses would likely be unconstitutional. This category
should be neither broader nor more limited than as defined by the Court.]
- The Court expressed confidence that the [currently used] informed consent model could be
used to assess competency and voluntariness in this type of end-of-life
decision (para. 115) -"already part and parcel of medical practice".
- The Court rejected arguments that physicians would have a bias against
quality of life for the disabled (para. 107).
Recent CMA activities
A series of draft fundamental principles were approved by the CMA Board
in May 2015 (see Schedule A). These
[principles, which have been slightly revised
based on stakeholder feedback] include:
- Respect for patient autonomy
- Respect for physician values
- Consent and capacity
- Dignity of life
- Protection of vulnerable persons
- [Mutual Respect]
CMA has a comprehensive communications and engagement strategy with the
membership, provincial and territorial medical associations and about its
approach and initiatives on physician-assisted death. There is also an
advocacy strategy to advance CMA's position on behalf of its members and
patients in the development of the legislative principles/framework.
CMA's Committee on Ethics discussed the ruling and its implications at
its Apr. 26-27, 2015 meeting. The framework is informed by CMA policy,
December 2014 update approved by the CMA Board. CMA will use
the framework to work with the federal government in drafting
legislation and regulations. CMA has been researching international and
national experience to inform the principles/framework in
anticipation of the SCC decision.
Schedule B contains charts that set out
legislative criteria across different jurisdictions vis-à-vis strategic
questions. In addition, CMA is developing action plans based on at least
four potential scenarios:
1. Legislation is developed in consultation with
stakeholders and keeping with the spirit of the SCC decision
2. Legislation is developed behind closed doors, no
3. Legislation is proposed that contradicts SCC
decision or physician/patient interests
4. No federal legislation is developed or it fails to
pass the federal Parliament (Morgentaler precedent)
CMA will undertake focused consultations on its
revised principles/framework, in particular, during June and July 2015.
General Council delegates will discuss and debate the principles/framework
and any associated issues in August 2015 in Halifax.
As part of its advocacy strategy to advance CMA's position in the
forthcoming legislation, CMA will engage the federal and
provincial/territorial governments to influence the development of
legislation on assisted dying. This advocacy strategy will require key
elements such as proposed legislative options for adoption by government,
and securing support for CMA's advocacy position from
With reference to the nine principles, delegates are asked to consider
the following strategic questions for discussion and debate:
1. What should be the process followed after the
patient requests medical aid in dying?
2. What oversight and data reporting mechanism should
3. For those physicians who refuse to in
assisted dying for reasons of conscience, how do we reconcile this refusal
4. The Supreme Court of Canada has laid out in broad
terms which patients will qualify for assistance in dying (i.e., those with
grievous and irremediable suffering). Should there be other clinical
specifications or requirements?
Recommendations for a Canadian Approach to Medical Aid in Dying
On Feb. 6, 2015, the Supreme Court of Canada unanimously struck down the
law prohibiting medical aid in dying. The court suspended that decision for
12 months. This provides an opportunity for the Canadian Medical Association
to build on its past work and pursue further consultation with provincial
and territorial medical associations, medical and non-medical stakeholders,
members, legislatures and patients for processes, whether legal, regulatory
or guidelines, that respect patients' needs and reflects physicians'
The goal of this process is twofold: (a) discussion and recommendations
on a suite of ethical-legal principles and (b) input on specific issues that
are particularly physician-sensitive and are worded ambiguously or not
addressed in the Court's decision. The anticipated outcome is to ensure that
physicians' perspectives are reflected as well as patients' views. The touch
points are reasonable accommodation for all perspectives and
For purposes of clarity, CMA recommends national and coordinated
legislative and regulatory processes and systems. There should be no undue
delay in the development of these laws and regulations.
The CMA recommends adopting the following principles-based approach to
medical aid in dying in Canada. CMA's policy
Euthanasia and Assisted Death
(Update 2014) defines medical aid in dying as follows:
Medical aid in dying refers to a situation whereby a
physician intentionally participates in the death of a patient , or
The following foundational principles underpin CMA's recommended approach
to medical aid in dying. [Proposing foundational
principles is a starting point for ethical reflection, and their application
requires further reflection and interpretation when conflicts arise.]
- Respect for patient autonomy: Competent adults are
free to make decisions about their bodily integrity. Strict criteria are
warranted given the finality of medical aid in dying.
- Equity: To the extent possible, all those who meet
the criteria for medical aid in dying should have access to this
intervention. with relevant parties high quality palliative care, and
There should be
medical aid in dying, either from a clinical, system or facility
- Respect for physician values: can follow
their conscience when deciding whether or not to provide medical aid in
dying This must not result in for
the patient to access these services. No one should be compelled to
assistance in dying.
- Consent and capacity: All the requirements for
informed consent must clearly be met, [including the requirement that the patient be capable of making that
decision, with particular attention to the context of potential
vulnerabilities and sensitivities in end-of-life circumstances]. Consent is seen as an evolving
process requiring physicians to continuously communicate with the
- Clarity: All Canadians must be clear on the
requirements for qualification for medical aid in dying.
- Dignity: All patients, their family members or
significant others should be treated with dignity and respect at all
times, including throughout the entire process of care at the end of
- Protection of vulnerable persons
[patients]: Laws and
regulations, through a carefully designed and monitored system of
safeguards, should address issues of vulnerability and potential
- Accountability: An oversight body and reporting
mechanism should be identified and established in order to ensure that
all processes are followed. Physicians participating in medical aid in
dying must ensure that they have appropriate technical competencies as
well as the ability to assess decisional capacity, or the ability to
consult with a colleague to assess capacity in more complex situations.
- Solidarity: Patients should be
accompanied  by
physicians and health care providers, [sensitive to issues of culture and background] throughout the dying process
regardless of the decisions they make with respect to assisted dying.
- [Mutual respect: There
should be mutual respect between the patient making the request and the
physician who must decide whether or not to perform medical aid in
dying. A request for medical aid in dying is only possible in a
meaningful physician-patient relationship where both participants
recognize the gravity of such a request.]
Based on these principles and a review of other jurisdictions'
experiences, CMA makes the following recommendations for potential statutory
and regulatory frameworks with respect to medical aid in dying. We note that
this document is not intended to address all potential issues with respect
to medical aid in dying, and some of these will need to be captured in
1. Patient qualifications for access to medical aid
1.1 The patient must be a competent adult [who
meets the clinical criteria set out by the Supreme Court of Canada decision
in Carter v Canada.]
- The attending physician must disclose to the patient information
regarding their health status, diagnosis, prognosis, and alternatives, including comfort care,
palliative and hospice care, and pain and symptom control.
- The attending physician must be satisfied that:
- the patient is mentally capable of making an informed decision at the
time of the request(s)
- the patient is capable of giving consent to medical aid in dying,
[paying particular attention to the
potential vulnerability of the patient in these circumstances]
- communications include exploring the priorities, values and fears of
the patient, providing information related to the patient's diagnosis and
prognosis, treatment options including palliative care interventions and
answering the patient's questions
- The patient him or herself must make the request. Substitute
decision-makers carrying out advance directives or the wishes of currently
incompetent patients are not acceptable proxies.
- The attending physician must be satisfied, on reasonable grounds, that
all of the following conditions are fulfilled:
- The patient's decision to undergo medical aid in dying has been made
freely, without coercion or undue influence from family members, health care
providers or others.
- The patient has a clear and settled intention to end his/her own life
after due consideration.
- The patient has requested medical aid in dying him/herself,
thoughtfully and repeatedly, in a free and informed manner.
2. Process map for decision-making in medical aid in dying
Stage 1: Requesting medical aid in dying
1. The patient submits the first oral request for medical aid in dying to
the attending physician.
2. The patient must then wait for at least 15 days.
3. The patient then submits the second oral request for medical aid in
dying to the attending physician.
4. The patient must then wait for
5. The patient then submits a written request for medical aid in dying to
the attending physician. The written request must be completed via a special
declaration form that is developed by the government/department of
health/regional health authority/health care facility.
6. In cases of terminal illness , CMA
recommends that shorter timelines be considered.
Stage 2: Before undertaking medical aid in dying
8. The attending physician must then assess the patient for capacity and
voluntariness or refer the patient for a specialized [capacity] assessment in more
9. The attending physician must inform the patient of his/her right to
rescind the request at any time.
10. A second, independent, consulting physician must [then
also] assess the patient
for capacity and voluntariness.
11. The attending physician must fulfill the documentation requirements.
Stage 3: After
12. The attending physician,
3. Role of the physician
3.1 Patient assessment: determine if the
patient qualifies for medical aid in dying under the parameters stated above
in Section 1.
3.2 Consultation requirements
- The attending physician must consult a second physician, independent of
both the patient requesting medical aid in dying and the attending
physician, before the patient is considered qualified to undergo medical aid
- The consulting physician must
- Be qualified by specialty or
experience to render a diagnosis and prognosis of the patient's illness
to assess their capacity as noted in Stage 2 above].
3.3 Counselling [Opportunity to rescind request]
- The attending physician must offer the patient an opportunity to
rescind the request at the time of the second oral request; the offer must
3.4 Documentation requirements
- The attending physician must document the following in the patient's
- All oral and written requests by a patient for medical aid in dying
- The attending physician's diagnosis and prognosis, and their determination
that the patient is capable, acting voluntarily and has made an informed
- The consulting physician's diagnosis and prognosis,
[and]verification that the patient is capable, acting voluntarily and has made an
- A report of the outcome and determinations made
- The attending physician's offer to the patient to
rescind the request for medical aid in dying
- A note by the attending
physician indicating that all requirements have been met and indicating the
steps taken to carry out the request
3.5 Oversight and reporting requirements
There should be a formal oversight and reporting mechanism that will
- Following the provision of medical aid in dying, the attending
physician must submit all of the following items to the oversight body:
- Attending physician report
- Consulting physician report
- Patient's written request for medical aid in dying
4. Responsibilities of the consulting physician
- The consulting physician must verify the patient's qualifications
including capacity and voluntariness.
- The consulting physician must document the patient's diagnosis,
prognosis, capacity, volition and the provision of information sufficient
for an informed decision. The consulting physician must review the patient's
medical records, and should document this review.
5. Moral opposition to medical aid in dying
5.1 Moral opposition by a health care facility or
- Hospitals and health authorities that oppose medical aid in dying may
not prohibit physicians from providing these services in other locations.
There should be no discrimination against physicians who elect to provide
medical aid in dying.
5.2 Conscientious objection by a physician
- Physicians are not obligated requests for medical aid in
dying. There should be no discrimination against a physician for their
refusal in medical aid in dying. In order to reconcile
physicians' conscientious objection with patient access to care, a system
should be developed whereby to to the patient.
Legislative Criteria Across Jurisdictions
Q1: Process to follow after patient requests medical aid in dying (Not reproduced here)
Q2: What oversight and data reporting mechanisms should exist? (Not reproduced here)
Q3: Reconcile refusal and equitable access?
Project comment re: Carter Trial Decision
Trial level – quotes from Royal Society of Canada Report "…if
unwilling should refer the individual… to another professional."
The inclusion of this out-of-context statement is seriously misleading
because it is likely to cause readers to believe that the trial judge
supported the views of the Royal Society panel on referral. This is
The introduction of the Royal Society report was
one of the contested issues. The trial judge admitted it as evidence over
the objections of Canada. In discussing the feasibility of safeguards, she
quoted its recommendations for "the core elements of a permissive regime"
which included reference to referral (under Justice Smith’s sub-heading "Features of the provider"):
Health care professionals should be permitted to
provide assistance with suicide or voluntary euthanasia. They must not be
obligated to provide such assistance but, if unwilling, should refer the
individual making the request to another professional who is willing to
However, Madame Justice Smith stated that she was not relying upon
it in relation to any "contentious matters, such as the efficacy of
safeguards."2 In fact, she used the
report (and other evidence) to illustrate a lack of social consensus
concerning euthanasia and assisted suicide.3
Further, Madame Justice Smith noted that physicians would not be
required to "participate" in a theoretical assisted suicide/euthanasia
regulatory model proposed by the plaintiffs.4
Finally, since the plaintiffs did not assert that physicians
should be compelled to "perform euthanasia" or "assist in suicide," the
judge explicitly left the issue aside in her ruling.5
Carter v. Canada (Attorney General)
2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver,
British Columbia. (Hereinafter "Carter-BCSC") para. 866e.
Carter-BCSC, para. 120-129.
Carter-BCSC, para. 290-292, 343-348.
Carter-BCSC, para. 881.
Carter-BCSC, para. 311.