In our last column we discussed the highly charged emotional nature of end-of-life care… As we continue to discuss this issue it is worth noting that there appears to be a sea change under way in Canadian politics: an increasing number of provinces are talking, and some are acting on the issue of assisted suicide. Until recently the issue was passed over like a political hot potato – it was expected to sow the seeds of public discontent and was explosively divisive. Politicians preferred to leave these delicate discussions to the courtrooms. The fact that governments and opposition parties are coming together all of a sudden to create death with dignity legislation or even engage these discussions reflects a vast change in attitudes where assisted suicide is concerned.
Recently, Ontario Premier Kathleen Wynne, bolstered by all-party acknowledgement of the increasing demand for discussion of the issue, recently said it was time that discussion took place. Subsequently, both Progressive Conservative Leader Tim Hudak and NDP health critic France Gélinas suggested that a government committee look into the issue.
Despite the federal government’s appeal of March 2012 British Columbia court decision that repealed the assisted-suicide ban from the Criminal Code, there appears to be a growing consensus among provincial legislators and the wider population that the time has come to deal with this thorny issue.
British Columbia’s Supreme Court found the ban on physician-assisted suicide was unconstitutional and gave the government one year to “take whatever steps it sees fit to draft and consider legislation.” The Supreme Court of Canada will likely have to review its previous decision on euthanasia and assisted suicide, and will have a lot to think about. In the 1993 case of B.C. resident Sue Rodriguez, the Supreme Court of Canada acknowledged the interest of the state in protecting human life by upholding the current law on euthanasia and assisted suicide as criminal matters.
As is often the case when it comes to social issues, Quebec is taking the lead. On June 12, 2013, Véronique Hivon, Minister for Social Affairs and Youth Protection, tabled Bill 52, An Act Respecting End-of-Life Care, in the National Assembly. Mme Hivon is not concerned that the legislation might contravene the federal Criminal Code, because the proposed end-of-life treatment would be part of a “continuum” of health care that falls under provincial jurisdiction: “I want to repeat that euthanasia, for example…is not forbidden in the Criminal Code. There are general provisions and there is something specific about assisted suicide but nothing on euthanasia.” However, the federal government is unlikely to allow the statute to stand unchallenged, given the implications for the rest of the country.
Former Federal Justice Minister Rob Nicholson has said the federal government will review the implications of Quebec’s proposed legislation and that euthanasia and assisted suicide are federal matters and currently illegal. The matter is probably headed to the Supreme Court of Canada, despite the political jeopardy of a federal-provincial legal tussle with the Province of Quebec.
Bill 52’s stated main goal is to ensure that end-of-life patients receive care “that is respectful of their dignity and autonomy”. It establishes stringent requirements for specific types of medical assistance to die.
Inspired by original guidelines published in the 180-page report “Dying with Dignity”, originally tabled in March of 2012, Bill 52 has two major components:
- The rights, organization and management of end-of-life care, consisting of palliative care, including palliative terminal sedation and medical assistance to die
- Rules for an advanced regime of medical directives and the specification of conditions under which such directives would have binding force.
The Bill sets the bar high for the treatment of end-of-life patients:
- Care must be respectful of the person’s dignity, autonomy, security, needs and recognize the primacy of the patient’s wishes with respect to end-of-life care when given freely and clearly
- The patient must always be treated with understanding, compassion, courtesy and fairness
- Care team members must establish and maintain open and honest communications with every end-of-life patient
- Any person whose condition requires it is entitled to end-of-life care
- Any fit adult of full age has the right to refuse to receive care needed to keep him or her alive and the refusal or withdrawal may be expressed by any means; the physician must ensure that the decision is freely made and provide the patient with the information to make an informed decision
Physicians will be allowed to refuse for moral reasons to administer end-of-life treatment. All institutions must offer a clinical program for end-of-life care. An end-of-life care policy will now be a requirement in every institution and palliative care hospice, and it must be communicated to staff, patients and their families.
Institutions, health and social service agency websites must post information on end-of-life care services and the rules governing access to it, and institutions must track statistics on the number of end-of-life patients who received palliative care, the number of terminal palliative sedations administered, the number of requests for medical aid in dying, the number of times such aid was administered and the number of times such requests were refused, including the reasons for the refusals.
The Bill contains strict protocols and criteria for continuous medical supervision of these patients, who must meet specific conditions in order to be eligible for end-of-life treatment, including terminal palliative sedation, (patients are sedated into unconsciousness and deprived of food and water), which would require written consent beforehand in writing and filed in the patient’s record. Death often occurs within days of terminal palliative sedation but can sometimes take longer. Patients wishing to receive such sedation, or the authorized individual consenting on their behalf, must be informed of the prognosis, the irreversible and terminal nature of the sedation and the anticipated duration of the sedation.
Physicians would be authorized to inject dying patients with a yet-to-be-determined drug, but only after terminally ill patients who met all the strict criteria have freely complied with the procedure.
To be eligible for medical assistance to dying, the patient must:
- Be of full age, be capable of giving consent to care and be an insured person within the meaning of the Health Insurance Act (chapter A-29, i.e., have a Quebec Medicare card);
- Suffer from an incurable serious illness;
- Suffer from an advanced state of irreversible decline in capability; and
- Suffer from constant and unbearable physical or psychological pain, which cannot be relieved in a manner the person deems tolerable.
Patients themselves must request medical aid in dying, using the form prescribed by the minister. It must be dated and signed by the patient or, if the patient is physically incapable of doing so, by a third person. The third person may not be a minor or an incapable person of full age or a member of the team responsible for caring for the patient. The form must be signed in the presence of a health (attending physician) or social services professional, countersigned by that person.
A patient may, at any time and by any means, withdraw his or her request for medical aid in dying. If the physician determines that medical aid in dying cannot be administered, the physician must inform the patient of the reasons for that decision.
There are a number of additional provisions of interest:
- The council of physicians, dentists and pharmacists established for an institution must, in accordance with the clinical standards established by their professional orders, adopt clinical protocols applicable to terminal palliative sedation and medical aid in dying.
- The physician administering end-of-life medical assistance must within 10 days notify his or her council of physicians, dentists and pharmacists once it has been done. The council must then investigate to ensure that the quality of care, procedures, rules and protocols were followed.
- A commission for end-of-life care will advise and report to the minister on the status of end-of-life care, and ensure the implementation and evaluation of legislation with regard to end-of-life care.
- A person of full age who is capable of giving consent to care may specify, in advance medical directives, what care required by their state of health they consent or do not consent to, in the event that they become incapable of giving consent.
- The directives may include the names of one or more trusted persons who are to give them, at the appropriate time, to the attending physician or to another health professional providing care to the person.
- A medical directive must be given by a notarial act en minute, similar to a living will, or in the presence of witnesses on the form prescribed by the minister. This document must be registered with the minister, who will establish and maintain an advance medical directives register.