March 14, 2016

Update on Physician-Assisted Death

Health Law
Professional Regulation

As discussed in our previous blog posts, the Supreme Court of Canada declared, on February 6, 2015, that the prohibition on physician-assisted death in the Criminal Code was unconstitutional as it violated the s.7 Charter rights of competent adult persons who have grievous and irremediable medical conditions: Carter v Canada (Attorney General), 2015 SCC 5 (“Carter”). The Court suspended the force of its declaration for 12 months in order to allow the federal government to implement a new legislative regime addressing physician-assisted death.

On January 15, 2016, the Supreme Court of Canada gave the federal government a four-month extension to pass the required legislation, introducing a new deadline of June 6, 2016. Quebec was exempted from this extension, as a separate physician-assisted dying law came into effect there on December 10, 2015. Additionally, the Court ruled that individual exemptions could be granted to those who want to exercise their right to die with the help of a doctor by applying to a superior court in their home province for relief, based on criteria that the Court specified in Carter.

BC and National Update on Physician-Assisted Death

Due to the separate physician-assisted death law that came into effect in Quebec on December 10, 2015, the first person to die with the assistance of a physician in Quebec did so in January of 2016. There have been approximately 20 other physician-assisted deaths since then.

On January 21, 2016, the College of Physicians and Surgeons of BC issued an interim guide relating to physician-assisted dying. The updated Interim Guide is available here. The Interim Guide

  • sets out standards of conduct for physicians who choose not to assess patients or perform physician-assisted dying based on their values and beliefs;
  • details the opinions required of the attending and consulting physicians, and if necessary a psychiatric or registered psychologist’s consult; and
  • requires that patients be competent, and able to give free and informed consent, throughout the process.

The College of Registered Nurses of BC and the College of Pharmacists of BC have advised their registrants to seek legal advice, as the Carter decision (in 2015) did not address the role of nurses and pharmacists in physician-assisted dying. Similarly, although the court permitted courts to exempt physician-assisted dying on a case-by-case basis, the court did not say that the exemption applied to nurses and pharmacists (or other health professionals).

On February 25, 2016, the BC Supreme Court issued a notice to help the public with how to apply for an exemption from Criminal Code provisions relating to physician-assisted dying (the “Court Notice”). The Court Notice provides for

  • the form of request,
  • confidentiality orders,
  • persons who must receive the court application, and
  • the necessary evidence from the petitioner, the attending physician, a second physician, and any other physician who will assist the petitioner in physician-assisted dying.

Physicians in Vancouver performed Canada’s first known case of physician-assisted death outside of Quebec on February 29, 2016. As is required to obtain an individual exemption to the suspension of the declaration of invalidity of the physician-assisted death law, a retired clinical psychologist from Calgary, Ms. S, applied to the Alberta Superior Court for relief. Justice Sheilah Martin determined that Ms. S had met the criteria as she was a competent adult with a “grievous and irremediable medical condition” that caused intolerable suffering that could not be alleviated and who clearly consented to the termination of her life. Ms. S had been diagnosed with ALS in 2013, was paralyzed and suffered serious pain. Justice Sheilah Martin granted the application and the procedure was performed at the end of February in Vancouver.  Notably the court found that the definition of physician-assisted death included the use of pharmaceuticals, and therefore, the engagement of a pharmacist:

[126] … In my view, pharmacists are part of the term “physician-assisted death” because, without them, physicians would be incapable of providing medication and assisting in the manner contemplated in Carter 2015. Nevertheless, I accept that an express protection provides greater certainty and a licensed pharmacist who prepares and provides the medication prescribed by the physician will also be exempt from the operation of the impugned provisions of the Criminal Code.

The Superior Court of Justice in Ontario will hear an application for physician-assisted death by a terminally ill Toronto man later this month. This 80-year-old man is said to be in the advanced stages of aggressive lymphoma.

Update on Key Issues

As the federal government deliberates to implement a new legislative regime addressing physician-assisted death, some key issues in the debate include:
1.    The availability of physician-assisted death to mature minors;
2.    The availability of physician-assisted death to mentally ill persons;
3.    Conscience-based objections by physicians;
4.    Timing between and number of assessments of informed consent; and
5.    The possibility of advanced consent when facing risk of losing competence.

A report released by a joint Senate-Commons committee on February 25, 2016, titled “Medical Assistance in Dying: A Patient-Centred Approach,” sheds some light on these issues. The Liberal cabinet is now tasked with weighing the 21 recommendations in this report to draft a new law for medically assisted death in response to a Supreme Court decision last year.

Availability of Physician-Assisted Death to Mature Minors

The report opens the door to physician-assisted death for youth under 18 by proposing a two-stage legislative process. The first stage would grant access of physician-assisted death to competent adults 18 years or older and the second stage would grant access of physician-assisted death to competent “mature minors” to come in to force no later than three years later. The second stage would include a study of the moral, medical and legal issues surrounding the concept of “mature minor” and appropriate competence standards that could be properly considered and applied to those under the age of 18 including broad-based consultations with various stakeholders.

A dissenting report, written by four Conservative MPs on the committees, stated that the recommendations did not include sufficient safeguards for mature minors, as it does not follow the evidence on what is necessary to protect vulnerable persons. Another opponent to this idea is the Canadian Paediatric Society, who has pushed to exclude minors regardless of competence.

Availability of Physician-Assisted Death to Mentally Ill Patients

The report recommends that patients with mental illnesses or psychiatric conditions should not be excluded from eligibility as long as they are competent and meet the other criteria set out in law. The Committee expressed faith in the expertise of Canadian health care professionals to develop and apply appropriate guidelines for such cases and could not see how an individual could be denied a recognized Charter right based on his or her mental health condition.

The dissenting report expressed that the recommendations did not include sufficient safeguards for mentally ill patients. The report specifically outlines that patients with underlying mental health issues should be required to undergo a psychiatric assessment by a professional to determine whether they have the capacity to consent to physician-assisted death.

Conscience-based Objections by Physicians

The report recommends that the Government of Canada work with the provinces and territories to establish a process to respect health care practitioners’ freedom of conscience throughout this process. Doctors should be able to “conscientiously object” to carry out physician-assisted death, however, at a minimum, that doctor should be required to then refer the patient to another physician who would be willing to undergo the procedure.

Requirements of Informed Consent

The report recommends that the capacity of a person requesting physician-assisted death be assessed using “existing medical practices, emphasizing the need to pay particular attention to vulnerabilities in end-of-life circumstances.”

The recommended process included that the request be made in writing when possible, and witnessed by two people who have no conflict of interest. Additionally, two doctors, independent of each other, should determine that the person making the request meets the eligibility criteria for physician-assisted death. The report also recommends that the waiting period should be decided by the patient’s doctor.

Advanced Consent

The report recommends that advance requests for physician-assisted death be available to Canadians who have been diagnosed with a condition that is reasonably likely to cause loss of competence or who have been diagnosed with a terminal or non-terminal grievous and irremediable medical condition but before the condition becomes intolerable. However, it was recommended that the advance request not be available before diagnosis.

Over the next two months, as the federal lawmakers prepare new rules for physician-assisted death, these issues will likely remain at the forefront of the debate.

Lisa C. Fong and Kassie Seaby