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 providing assisted dying.

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 election.

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 decision).

- The Court recognized that its decision does not compel physician participation 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 irremediable medical condition (including an illness, disease or disability) 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:

1. Respect for patient autonomy
2. Equity
3. Respect for physician values
4. Consent and capacity
5. Clarity
6.  Dignity of life
7.  Protection of vulnerable persons [patients]
8.  Accountability
9. Solidarity
10. [Mutual Respect]

CMA has a comprehensive communications and engagement strategy with the membership, provincial and territorial medical associations and other stakeholders (e.g., Canadian Medical Protective Association)  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, including the December 2014 update approved by the CMA Board. CMA will use the framework to work with the federal government and others in drafting legislation and regulations. CMA has been researching international and national experience to inform the principles/framework for several months 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 consultation

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 stakeholder and member 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 key stakeholders including other orders of government.

Strategic questions

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 exist?

3. For those physicians who refuse to participate in assisted dying for reasons of conscience, how do we reconcile this refusal with their obligation to ensure equitable access?  What mechanisms can physicians employ to ensure this access?

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?

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Schedule A
Draft Principles-Based 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' perspectives.

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 patient-centeredness.

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 by directly administering the substance themselves, or by providing the means whereby a patient can self-administer a substance leading to their death.

Foundational principles

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.]

1. 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.
   
   
2. Equity: To the extent possible, all those who meet the criteria for medical aid in dying should have access to this intervention. Physicians will work with relevant parties to support increased resources and access to high quality palliative care, and medical aid in dying.
   
   
3. There should be no undue delay to accessing medical aid in dying, either from a clinical, system or facility perspective.
   
   
4. Respect for physician values: Physicians can follow their conscience when deciding whether or not to provide medical aid in dying without discrimination. This must not result in undue delay for the patient to access these services. No one should be compelled to provide assistance in dying.
   
   
5. 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 patient.
   
   
6. Clarity: All Canadians must be clear on the requirements for qualification for medical aid in dying. There should be no "grey areas" in any legislation or regulations.
   
   
7. 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 life.
   
   
8. Protection of vulnerable persons [patients]: Laws and regulations, through a carefully designed and monitored system of safeguards, should address issues of vulnerability and potential coercion.
   
   
9. 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.
   
   
10. Solidarity: Patients should be accompanied [supported and not abandoned] 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.
    
    
11. [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.]

Recommendations

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 subsequent regulations.

1. Patient qualifications for access to medical aid in dying

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.]

1.2 Informed decision [fomerly 1.4]

• The attending physician must disclose to the patient information regarding their health status, diagnosis, prognosis, the certainty of death upon taking the lethal medication, and alternatives, including comfort care, palliative and hospice care, and pain and symptom control.

1.3 Capacity [formerly 1.2]

• 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

• If either or both the attending physician or the consulting physician determines that the patient is incapable, the patient must be referred for further capacity assessment.

• 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.

1.4 Voluntariness [formerly 1.3]

• 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 at least 7 days.

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 where time is of the essence, CMA recommends that shorter timelines be considered.

Stage 2: Before undertaking medical aid in dying

7. The attending physician must wait no longer than 48 hours, or as soon as is practicable, after the written request is received.

8. The attending physician must then assess the patient for capacity and voluntariness or refer the patient for a specialized [capacity] assessment in more complex situations.

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 undertaking medical aid in dying

12. The attending physician, or a physician delegated by the attending physician, must take care of the patient until the patient's death.

3. Role of the physician

3.1 Patient assessment: The attending physician must 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 in dying.

• The consulting physician must
  •  Be qualified by specialty or experience to render a diagnosis and prognosis of the patient's illness  [and 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 be documented.

3.4 Documentation requirements

• The attending physician must document the following in the patient's medical record:
  •  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 decision
  •  The consulting physician's diagnosis and prognosis, [and]verification that the patient is capable, acting voluntarily and has made an informed decision
  •  A report of the outcome and determinations made during counselling
  •  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 gather data.

• 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
  • Medical record documentation
  • 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 health authority

• 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 to fulfill requests for medical aid in dying. There should be no discrimination against a physician for their refusal to participate in medical aid in dying. In order to reconcile physicians' conscientious objection with patient access to care, a system should be developed whereby referral occurs by the physician to a third party that will provide assistance and information to the patient.

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Schedule B:

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?

	Is there a duty to refer to another physician?  Yes/No or Silent	Evidence	Is participation mandatory? Yes/No or Silent	Evidence	Other
Netherlands	Silent		Silent
Luxembourg	Not really No	Should the physician refuse, then he/she must inform patient with reasons within 24 hrs.	No	No doctor is obliged to perform euthanasia or assisted death.	Timely disclosure requirement.
Belgium	Not really No	Should the physician refuse, then he/she must inform patient with reasons. At the request of the patient, the physician (who refuses to perform euthanasia) must communicate the medical record to the physician designated.	No	No physician may be compelled to perform euthanasia.
Oregon	Not really No	If unable or unwilling to carry out a patient's request the provider shall transfer, upon request, a copy of the patient's medical records to the new provider. Participation in physician-assisted death does not include providing a patient with a referral to another physician.	No	No health care provider is under any duty to participate.	Upon request, transfer record to new provider.
Washington	Not really No	There is a requirement to transfer records. Participation in physician-assisted death does not include referral of a patient to another physician.	No	Only willing providers shall participate in the provision of medication to end life in a humane and dignified manner.	Upon request, transfer record to new provider.
Vermont	Silent		No	No person shall be under any duty to participate in the provision of a lethal dose of medication.	Silent
Quebec Bill 52	Modified.  Yes - to Executive Director Yes	To the Executive Director of the institution or local authority.	No	May refuse because of personal convictions; in such a case, must ensure that continuity of care is provided to the patient, in accordance with their code of ethics and the patient's wishes.	Continuity of care obligation.
Senate Bill 225	Silent		Silent
Carter Trial Decision		Trial level – quotes from Royal Society of Canada Report "…if unwilling should refer the individual… to another professional."
Carter SCC Decision	Silent	In making their observation (see quote to the right), the court said that the rights of patients and physicians will need to be reconciled.	No	"Nothing in the declaration of invalidity would compel physicians to provide assistance in dying"… "we note…that a physician's decision to participate in assisted dying is a matter of conscience…"	Charter rights of both patients and physicians need to be reconciled.

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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 false.

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 consider it.1

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

Notes

1.  Carter v. Canada (Attorney General) 2012 BCSC 886 (CanLII) at para 866e.

2.  Ibid, para 120-129.

3.  Ibid, para 290-292, 343-348.

4.  Ibid, para 881.

5.  Ibid, para 311.