Redefining the Practice of Medicine

Euthanasia in Quebec

An Act Respecting End-of-Life Care (June, 2014)

Sean Murphy*

Part 2: ARELC in Detail

Definitions

"Institution" [Section 3(1)]

The definition of "institution" is critical because Act Respecting End-of-Life Care (ARELC) purports to impose a duty to provide end-of-life care (which includes euthanasia) on institutions governed by the Act Respecting Health Services and Social Services (ARHS&SS)that operate local community service centres, hospital centres, and residential and long-term care centres.  As a general rule, any person or partnership who carries on "activities inherent in the mission" of one of these kinds of centres is considered to be an "institution."  Institutions are public if they are non-profit corporations, or if they are incorporated or are formed as a result of amalgamation or conversion under the Act Respecting Health Services and Social Services.  They are private if they are unincorporated, or profit-making corporations, or non-profit corporations providing some kinds of health care for fewer than 20 patients. (Appendix A10, A11)

"Palliative care hospice" [Section 3(2)]

The definition of "palliative care hospice" is equally important because ARELC exempts palliative care hospices from having to provide euthanasia.  Palliative care hospices are "community organizations" accredited by the Minister of Health and Social Services that have agreements with institutions to obtain some or all of the care needed by their clientele.  "Community organization" is defined by ARHS&SS as incorporated an non-profit entity governed by a board of directors.  Although community organizations receive government funding, they remain free to define their "orientations, policies and approaches." (Appendix A6)

"End-of-life care" [Section 3(3)]

ARELC speaks of "end-of-life care," which it defines as "palliative care provided to end-of-life patients and medical aid in dying."1

Thus, when ARELC states that "every person whose condition requires it has the right [subject to the Act] to receive end-of-life care,"2 this must be understood to mean that the law establishes two different rights: a right to palliative care for "end-of-life patients," and a right to euthanasia that is not limited to "end-of-life patients" - a frequently used but undefined term.

"Palliative care" [Section 3(4)]

The distinction between euthanasia and palliative care is frequently (and often deliberately) blurred.  Testimony from a number of experts and specialist groups before the legislative committee in the fall of 2013 repeatedly emphasized that euthanasia is not palliative care.  Legal effect to this distinction is given by one of the most important additions to the final text of ARELC: a definition of palliative care:

"palliative care" means the total and active care delivered by an interdisciplinary team to patients suffering from a disease with reserved prognosis, in order to relieve their suffering, without delaying or hastening death, maintain the best quality of life possible and provide them and their close relations the support they need;3

"Continuous palliative sedation" (CPS) [Section 3(5)]

The original text of Bill 52 included the novel term "terminal palliative sedation," which generated a good deal of confusion and comment during the committee hearings in the fall of 2013.  It appears that the Quebec government used the term because it could be understood to mean terminating the life of the patient. The term has been replaced in ARELC by "continuous palliative sedation," (CPS) defined as "administering medications or substances to an end-of-life patient to relieve their suffering by rendering them unconscious without interruption until death ensues."4 

When compared to professionally recommended palliative care practice, ARELC's definition of continuous palliative sedation is problematic.  When CPS is properly used, the goal is not to render the patient unconscious:

The aim or intention of CPST is the relief of suffering due to refractory and intolerable symptoms and not the sedation itself. There should be no intention to shorten life and no intention to bring about complete loss of consciousness although this latter may sometimes be necessary. The level of consciousness is lowered only as far as is necessary to relieve the suffering. Thus . . . the combination and amount of drug used to reduce the level of consciousness should be just sufficient to alleviate distress. Viewing the actual sedation as the desired outcome is inappropriate.5

ARELC's definition does not imply the CPS causes death.  However, ARELC also requires that a patient or substitute decision maker be advised of "the irreversible nature of the sedation,"6 so "irreversibility" remains an implied characteristic of the procedure envisioned in the law.  Moreover, the reporting requirements imposed by ARELC for continuous palliative sedation are almost identical to the reporting requirements for euthanasia,7 which seems to imply an extremely close connection between the two procedures.

Sedation is not, by its nature, irreversible, a point demonstrated by the recommended monitoring of patients and careful titration of sedation.  Moreover, CPS is normally considered only when death is imminent, clinically defined as "'dying' or 'being in the last stages of life,'" typically understood to mean a projected remaining lifespan of "hours or days, or at most less than two weeks."8

The problematic statutory definition of CPS, the reference to "irreversibility" and the peculiar reporting requirements is likely related to the fact that ARELC authorizes two different kinds of euthanasia, and CPS may be used in conjunction with one of them (See Euthanasia Below the Radar).

"Medical aid in dying" (MAD) [Section 3(6)]

MAD was not defined in Bill 52, apparently to avoid a constitutional challenge to the law by the federal government.  Nonetheless, everyone was aware that MAD meant euthanasia by physicians.  The Quebec government has dispensed with the winks and nods and has defined "medical aid in dying" in ARELC:

"medical aid in dying" means care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient's request, in order to relieve their suffering by hastening death.9

The law requires that a physician who determines that "medical aid in dying" (MAD) may be administered to a patient "must administer such aid personally and take care of and stay with the patient until death ensues."10

The statute does not say "kill" or even "end the life of the patient," but employs a euphemism: "hastening death."  Nonetheless, in view of the law's requirement that the physician who administers the medication or substance must "stay with the patient until death ensues," it would be disingenuous to claim that ARELC does not authorize a physician to kill patients.  We do not, after all, describe executions by lethal injection (which may use the same drugs and procedures employed in MAD) as "hastening death" or "aid in dying." (Part 4)

Eligibility for "medical aid in dying" (MAD) [Section 26]

Age, residence and health insurance (Section 26(1), (2)]

The statutory MAD guidelines for euthanasia restrict it to legally competent persons at least 18 years old who are insured under the provincial Health Insurance Act.11  Insured persons are residents or temporary residents of Quebec who have registered for provincial health insurance coverage.12  A Quebec resident is a Canadian citizen, permanent resident of Canada, a refugee or other category of person defined by regulation whose permanent home is in Quebec.  Temporary residents of Quebec include foreign nationals authorized to work in Quebec for more than six months and their spouses and dependents, certified foreign students and their spouses and dependents and other less common categories defined by regulation.13 

Canadians who move to Quebec from other provinces and register for Quebec health care become insured persons only after the health care coverage from the other province ceases.14  Generally, this occurs after two or three months.  Similarly, most other people who have moved to Quebec become residents or temporary residents on first day of the third month following their arrival.15

"At the end of life" [Section 26(3)]

In order to be eligible for MAD, patients must also be "at the end of life."16  This requirement was added to ARELC, apparently because of concern that the original wording in Bill 52 could be construed too broadly.17

Illness, irreversible decline, pain [Sections 26(4), 26(5), 26(6)]

In addition to meeting the criteria of age, competency, insurance, and being "at the end of life," MAD criteria require that a patient must also "suffer from a serious and incurable illness,"18 be in an "advanced state of irreversible decline in capability,"19 and "experience constant and unbearable physical or psychological pain which cannot be relieved in a manner the patient deems tolerable."20 

Stability of eligibility criteria

At first glance, the eligibility criteria for MAD seem clear and stable, so that circumstances in which conflicts of conscience may arise with respect to direct participation will be limited and predictable.  However, it will be seen in Part 3 that this is not the case.

The MAD procedure (Section 29)

A qualifying patient must personally request MAD "in a free and informed manner," in writing, using a form approved by the Minister.21 If the patient is unable to date and sign the form, it may be signed on his behalf by a competent adult who is not part of the health care team looking after the patient.22  It must be signed in the presence of "a health and social services professional," who may be the attending physician. This professional witness must sign the form as well. The form is to be given to the attending physician if he is not the professional witness.23

The attending physician cannot provide euthanasia unless he first confirms eligibility of the patient using the criteria in Section 26 (above)24 and ensures that the patient is making a free and informed decision, not a result of "external pressure,"25 a decision that includes an awareness of "the prognosis of the illness and other therapeutic possibilities and their consequences."26 The fact that a patient has refused effective palliative treatments is not reason to refuse euthanasia.27

The physician must also talk to the patient "at reasonably spaced intervals" to verify "the persistence of suffering" and a continuing desire for euthanasia,28 ensure that the patient has the opportunity to discuss their decision with people they wish to contact,29 and discuss the request with other members of the health care team who are in regular contact with the patient.30 However, the physician cannot discuss the patient's request with family members unless the patient so wishes.31 Thus, under the terms of the Act, a physician may kill a patient without the knowledge of the family.

Finally, the attending physician must obtain the written opinion of an independent physician who is not involved with the care or treatment of the patient confirming the patient's eligibility for euthanasia. Before providing the opinion, the second physician must review the patient chart and examine the patient.32

Only physicians may provide MAD, and, having done so, must "stay with the patient until death ensues."33 Physicians associated with private health care facilities may provide euthanasia at a patient's home.34

Physicians associated with institutions who provide CPS or MAD must report the fact to the council of physicians, dentists and pharmacists (or medical director) having jurisdiction.35 Those practising in private health facilities must report to the College of Physicians.36 They must report all MAD cases to the Commission on End-of-Life Care within 10 days.37

Euthanasia Below the Radar (EBTR)

The MAD provisions are limited to legally competent patients.  They include statutory restrictions, procedural guidelines and reporting requirements, and have understandably been the focus of most public and professional attention.  Most people probably believe that this is the only type of euthanasia authorized by the new law. 

However, ARELC also provides that substitute decision makers can order legally incompetent patients who are not dying to be starved and dehydrated to death.  This practice, identified here as Euthanasia Below the Radar (EBTR), is to be distinguished from the withdrawal of food and fluids when death is imminent and they are no longer wanted or needed.  EBTR was introduced into ARELC by means of a revision to the original text.

Section 6 of Bill 52 stated that a competent adult could "refuse to receive, or withdraw consent to, a life-sustaining treatment or procedure."  This introduced nothing new; it merely codified an existing right.  Equally important, even if refusal of treatment or care by a competent patient led to his death, the law has never considered this euthanasia or assisted suicide.  However, two modifications were introduced into what is now Section 5 of ARELC.

First: the original phrase "life-sustaining treatment or procedure"" has been replaced in ARELC's by "life-sustaining care." The latter term more readily encompasses food and fluids in any form.  Second:  ARELC provides that life-sustaining care (i.e., including food and fluids) can be refused on behalf of or withdrawn from an incompetent patient by a substitute medical decision-maker.38  The change permits a substitute decision-maker to direct that an incompetent patient who is neither terminally ill nor dying be starved and dehydrated to death.

The change from treatment to care and the statutory authorization of a substitute decision maker to stop the provision of food and fluids may have been prompted by a British Columbia case that made the news in late 2013.  Family members went to court to stop caregivers from spoonfeeding an 82 year old legally incompetent nursing home resident when she opened her mouth to accept food.  She was not terminally ill, nor was she dying, so to comply with the family wishes would have caused her death by starvation and dehydration.  Among other things, the judge ruled that spoon-feeding was not "health care" within the meaning of the law, but a form of personal care.  While he agreed that, under the common law, a competent adult can refuse food and fluids and thus commit suicide, he found no legal precedent to justify such a decision by a substitute decision maker in the case of an incompetent person.  On the other hand, he recognized that his conclusions could be affected by public policy or statute.39  Within the province of Quebec, the authority that the judge could not find in the law has now been supplied by Section 5 of ARELC.

Professor Jocelyn Downie of Dalhousie University supports this as an option, at least in the case of competent patients, or when authorized by an advance directive made by a patient before becoming incompetent.40  She warned legislative committee members that euthanasia by starvation and dehydration should be clearly identified as a specific category and made subject to MAD guidelines.  Otherwise, she said, "You will be setting up a situation where somebody could access [euthanasia] when they're not expected to die for five months and not meet your conditions of medical aid in dying."41

Professor Downie's advice was ignored.  Euthanasia of legally incompetent patients by starvation and dehydration is not identified as such in ALERC.  It is completely unrestricted and is not even reportable: hence the term used here: Euthanasia Below the Radar (EBTR). 

However, since death by starvation and dehydration would be a painful process, it is likely that, in such circumstances, continuous palliative sedation (as defined by ARELC rather than recommended medical practice) would be used to anesthetize the patient.  This probably explains ALERC's medically problematic definition of CPS and its requirement that CPS be reported to councils of physicians, dentists and pharmacists or the Collège des médecins, but not to the Commission on End of Life Care.  ALERC's handling of Below the Radar Euthanasia and CPS may lead to the under-reporting of the actual number of euthanasia cases and further confusion about the nature of continuous palliative sedation.

Institutional exemptions

Palliative care hospices may offer euthanasia, but are not required to do so. Before admitting patients, they must explain what kind of end-of-life care they offer,42 so that patients seeking MAD services will not be inadvertently misled and may go elsewhere (Part 8)

Section 72 of the Act is a grandfather clause that concerns any institution operating a "general and specialized hospital centre" that offers only palliative care.  Such institutions "may continue to offer that care exclusively" (i.e., need not provide euthanasia), as long as they notify patients of this before admitting them.43  Véronique Hivon, when Minister of Health, explained that the section is intended to apply to a single institution -  La Maison Michel Sarrazin.44  (Part 8)

Institutional oversight

The Collège des médecins du Québec is designated to receive reports from physicians who have provided CPS or MAD, and to assess the "quality of the care provided."  The Act appears to assume that the College will establish or at least recognize "clinical standards" relative to the procedures.45 It is to report annually on the provision of the services, both on its website and to the Commission on End-of-Life Care.46

A central role in the provision of euthanasia is assigned to institutional councils of physicians, dentists and pharmacists (or, in their absence, institutional directors of care47) (Appendix A19.1). They are to adopt CPS and MAD guidelines,48 and then review reports from physicians who have provided the procedures to "assess the quality of the care provided."49

Commission on End-of-Life Care

ARELC authorizes the establishment of the Commission on End-of-Life Care50 that will consist of eleven government appointees who will hold office for up to five years.51  They are to evaluate the implementation of the Act and provide advice to the government.52

The Commission is to review every physician report of euthanasia. If at least two thirds of the members present believe that a physician failed to comply with Section 29 MAD procedure, they are to notify the physician, the institution, and the Collège des médecins du Québec. As a result of concerns expressed by physicians, a requirement in Bill 52 to notify "any other authority concerned" - such as the police - has been dropped.53

Criminal law

Canadian criminal law is not affected by the Act. Hence, no matter what the Act purports to do, the following will remain criminal offences in Quebec even if the Act passes:

• Killing
  • Murder (1st degree)54
  • Murder (2nd degree)55
  • Manslaughter56
  • Conspiracy to commit murder57
  • Doing or omitting to do anything for the purpose of aiding any person to commit murder58
  • Abetting any person to commit murder59
  • Counselling, procuring, soliciting or inciting someone to commit murder,60 even if the murder is not committed61.
• Administering lethal drugs
  • Administering a noxious substance62
  • Conspiracy to administer a noxious substance63
  • Doing or omitting to do anything for the purpose of aiding any person to administer a noxious substance64
  • Abetting any person in the administration of a noxious substance65
  • Counselling, procuring, soliciting or inciting someone to administer a noxious substance,66 even if the substance is not administered67

Parties to criminal offences

While the Act assigns the task of providing "medical aid in dying" to physicians, the criminal law applies, not just to the act of killing the patient, but to any act or omission done for that purpose, including the making and distribution of MAD guidelines and protocols. This has implications not only for all of the health care workers and institutions expected by the Act to provide MAD, but for administrators, regulators and councils directed by the Act to regulate or manage the procedures.

First degree murder

First degree murder is defined as murder that is "planned and deliberate."68 Since "medical aid in dying" means killing the patient, a physician who does what the Act requires under Section 29 and 30 (see above) will have provided excellent evidence that the killing was intentional, planned and deliberate. Thus, conforming to the Act Respecting End-of-Life Care would seem to increase the likelihood that a physician - and anyone counselling, aiding, abetting his act - could be charged and convicted for first degree murder, for which the punishment is life imprisonment without parole for 25 years.69

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Notes:

1.  An Act respecting end-of-life care (Hereinafter "ARELC"), Section 3(3).

2.  ARELC, Section 4.

3.  ARELC, Section 3(4).

4.  ARELC, Section 3(5).

5.  Dean MM, Cellarius V, Henry B, Oneschuk D, Librach Canadian Society Of Palliative Care Physicians Taskforce SL. "Framework for continuous palliative sedation therapy in Canada." J Palliat Med. 2012 Aug;15(8):870-9. doi: 10.1089/jpm.2011.0498. Epub 2012 Jul 2  (Accessed 2014-08-10)

6.  ARELC, Section 24.

7.  The Act requires physicians to report both CPS and MAD to institutional councils of physicians, dentists and pharmacists (Section 34) or the Collège des médecins (Section 36) which, in turn, must report the statistics on its website and to the Commission on End of Life Care (Section 37.) The executive directors of institutions are to report annually to their boards the number of times CPS and MAD were administered. (Section 8)  Physicians must report every MAD case - but not CPS cases - to the Commission on End-of-Life Care. (Section 46)

8.  Dean MM, Cellarius V, Henry B, Oneschuk D, Librach Canadian Society Of Palliative Care Physicians Taskforce SL. "Framework for continuous palliative sedation therapy in Canada." J Palliat Med. 2012 Aug;15(8):870-9. doi: 10.1089/jpm.2011.0498. Epub 2012 Jul 2  (Accessed 2014-08-10)

9.  ARELC, Section 3(6).

10.  ARELC, Section 30.

11.  ARELC, Section 26(1), (2)

12.  Health Insurance Act, Chapter A-29, Section 1(g.1). (Accessed 2014-06-11)

13.  Health Insurance Act, Chapter A-29, Section 5;  Regulation respecting eligibility and registration of persons in respect of the Régie de l'assurance maladie du Québec, Section 3 (Accessed 2014-06-11)

14. Health Insurance Act, Chapter A-29, Section 8;  (Accessed 2014-06-11)

15.  Regulation respecting eligibility and registration of persons in respect of the Régie de l'assurance maladie du Québec, Section 4 (Accessed 2014-06-11)

16.  ARELC, Section 26(3)

17.  Consultations & hearings on Quebec Bill 52 (hereinafter "Consultations"), Wednesday, 9 October 2013 - Vol. 43 No. 45: Quebec Association of Clinical Ethicists (Delphine Roigt, Emilia Guévin, Michel Lorange) T#144  

18.   ARELC, Section 26(4)

19.  ARELC, Section 26(5)

20.   ARELC, Section 26(6)

21.  ARELC, Section 26

22.  ARELC, Section 27

23.   ARELC, Section 26

24.  ARELC, Section 29(1)

25.  ARELC, Section 29(1)a

26.  ARELC, Section 29(1)b

27.  ARELC, Section 6  

28.  ARELC, Section 29(1)c

29.  ARELC, Section 29(2)

30.  ARELC, Section 29(1)d

31.  ARELC, Section 29(1)e

32.  ARELC, Section 29(3)

33.  ARELC, Section 30

34.  ARELC, Section 16

35.  ARELC, Sections 34, 35

36.  ARELC, Section 36

37.  ARELC, Section 46

38.  ARELC, Section 5

39.  Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (Accessed 2014-06-24)

40.  Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45: Professor Joceyln Downie, T#061, T#085

41.  Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45: Professor Joceyln Downie, T#078.  During the hearing, Professor Downie was referring to the process Bill 52 called "terminal palliative sedation" - a novel term applied to euthanasia by starvation and dehydration masked by deep, continuous palliative sedation.

42.  ARELC, Section 13

43.  ARELC, Section 72

44.  Note: in Bill 52, the original section number was 65. Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38: Quebec Association for the Right to Die with Dignity (Hélène Bolduc, Dr. Marcel Boisvert, Dr. Georges L'Espérance), T#030, T#032

45.  ARELC, Section 36

46.  ARELC, Section 37

47.  ARELC, Section 35

48.  ARELC, Section 33

49.  ARELC, Section 34

50.  ARELC, Section 38

51.  ARELC, Section 39

52.  ARELC, Section 42

53.  ARELC, Section 47

54.  Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC"), Section 229; Section 231(1). (Accessed 2014-07-25)

55.  CC, Section 229; Section 231(7) (Accessed 2014-07-25)

56.  CC, Section 232(1). (Accessed 2014-07-25)

57.  CC. Section 465. (Accessed 2014-07-25)

58.  CC, Section 21(b). (Accessed 2014-07-25)

59.  CC, Section 21(c). (Accessed 2014-07-25)

60.  CC, Section 22 (Accessed 2014-07-25)

61.  CC, Section 464. (Accessed 2014-07-25)

62.  CC, Section 245. (Accessed 2014-07-25)

63.  CC, Section 465. (Accessed 2014-07-25)

64.  CC, Section 21(b). (Accessed 2014-07-25)

65.  CC, Section 21(c). (Accessed 2014-07-25)

66.  CC, Section 22. (Accessed 2014-07-25)

67.  CC, Section 464. (Accessed 2014-07-25)

68.  CC, Section 231(2). (Accessed 2014-07-25)

69.  CC, Section 745(a). (Accessed 2014-07-25)