September 3, 2019

Medically-assisted dying and the role of professional regulators

Administrative Law
Health Law
Inquiry and Investigations
Professional Regulation

As described in a recent Globe and Mail article (here), the College of Physicians and Surgeons of BC (the “College”) recently dismissed a complaint against a physician, Dr. Wiebe, who provided medically-assisted dying (“MAiD”) to an elderly patient and resident of a care home and hospital (the “Home”). The Home, in keeping with Jewish Orthodox tradition, did not allow MAiD on-site. The resident, however, requested and consented to the procedure.

The executive director of the Home sent a complaint to the College, on the basis of Dr. Wiebe completing the MAiD procedure despite knowing that the Home, being an Orthodox Jewish long-term care facility, did not “allow” MAiD. The complainant also took issue with Dr. Wiebe failing to communicate with nursing staff after the procedure. The complainant asserted “purposeful disregard for a health care facilities policies” and also “unprofessional conduct” relating to her failure to communicate with nursing staff.

Dr. Wiebe kindly provided us with a copy of the College’s complaint disposition.

Dr. Wiebe advised the committee that physicians treating patients at the Home do not require privileges, and she was not contractually obligated to follow the Home’s “rules”. The committee also noted that according to the resident’s treating physician, individual rooms at the Home are multi-denominational. Dr. Wiebe did not breach College standards by performing MAiD on a resident of the home; the patient had consented and Dr. Wiebe met all requirements for providing MAiD. Further, physician standards do not require any handover of care between health care providers after death. Dr. Wiebe was not required to communicate with nursing staff. The patient’s daughter, a registered nurse, did in fact communicate with nursing staff after her father’s death. The committee resolved the matter under HPA s. 33(6)(a) on the basis of Dr. Wiebe’s conduct being “satisfactory” from a regulatory perspective.

This case highlights some ongoing concerns around the provision of, and access to, MAiD. MAiD became legal in Canada in June 2016, after the decision of the Supreme Court of Canada in Carter v. Canada, 2015 SCC 5.  While patients are not required to be terminally ill or have a fatal condition, the legal criteria for the service includes providing informed consent and having a “grievous and irremediable” medical condition. While these terms remain open to legal interpretation, the College defines a “grievous and irremediable” medical condition as including four requirements, all of which must be met by the patient:

  • they have a serious and incurable illness, disease, or disability;
  • they are in an advanced state of irreversible decline in capability;
  • that illness, disease, disability or state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
  • their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time they have remaining.

These requirements are consistent with current caselaw, Health Canada and BC’s Ministry of Health requirements. These terms may, however, place physicians in a difficult position of having to make assessments that are more legal than medical, such as assessing a timeline for when death is “reasonably foreseeable” and balancing this assessment with providing the best end-of-life care to their patients. Patients requesting MAiD are also usually subject to a 10-day “reflection period” between requesting and being assessed for eligibility and when the service can be provided.

This case highlights a potential barrier to public access to this important healthcare service, namely uncertainty as to the need for a patient to transfer to another facility to obtain MAiD, due to a restrictive policy of a care facility.

A link to information about MAiD in BC: here.

A link to the College’s practice standard for MAiD: here.