Canada: Physician-Assisted Dying Part 3: Finding A Balance Between Autonomy And Access

Last Updated: February 26 2016
Article by Melissa L. Perry

"Health institutions, including regional health authorities and other institutional providers (e.g. hospitals, hospices and long-term care facilities) are critical enablers of effective and equitable access to physician-assisted dying." 

Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying,

Final Report, November 30, 2015, at 3.

Part 2 of this series examined the implications of the decriminalization of physician-assisted dying for frontline health care professionals.  In the absence of governing legislation, until June 6, 2016, individuals in British Columbia may seek judicial approval for a physician-assisted death.

On February 9, 2016, the College of Registered Nurses of British Columbia ("CRNBC") responded to the current state of limbo created by the Supreme Court of Canada's exception to the extension of the suspension of its decision in  Carter v. Canada (Attorney General), 2015 SCC 5, which permits eligible individuals to access a physician-assisted death with the approval of the superior court in their jurisdiction (See  Carter v. Canada (Attorney General),  2016 SCC 4). 

In the absence of legislative amendments expressly exempting nurses from the Criminal Code, CRNBC's current position statement on the role of nurses in providing physician-assisted dying cautions nurses against taking part in any capacity without first seeking independent legal advice.  The College of Pharmacists of British Columbia has taken a similar position, advising its registrants to seek an independent legal opinion should they be interested in assisting with the delivery of a physician-assisted death.

The current positions of the CRNBC and the College of Pharmacists have practical implications for British Columbia's health authorities and health care facilities, which rely on a team-based model for care delivery. The medications used for the process of physician-assisted dying, some of which are not readily available in Canada, may only be available through a hospital's pharmacy, and may need to be administered intravenously. Pharmacy technicians who dispense and the nurses who prepare those medications play a critical role in the health care team. At a minimum, nurses, pharmacists, and any other health care professionals acting in a supporting role during the process of a physician-assisted death will require clear exemptions from the Criminal Code

While the present lack of a clear exemption may present the greatest barrier to access in the coming months, this barrier may be overcome if legal authorization for these health care professionals to participate is obtained as a term of the court order authorizing a patient to obtain a physician-assisted death.

Considerations for health authorities and health care service facilities

As of February 6, 2016, hospitals and other health care service facilities should be prepared to consider how to provide health care services for individuals seeking a physician-assisted death in British Columbia. 

The Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying ("Advisory Group") released its final report on December 15, 2015 which contained 43 recommendations for the regulation and implementation of physician-assisted deaths in Canada.  The overarching theme of those recommendations is the patient's right of access to a physician-assisted death.  While the recommendations are not binding on provincial and territorial lawmakers, during this four-month interim period British Columbia's health authorities and similar bodies should consider developing institutional policies and procedures to enable access to physician-assisted dying in a manner consistent with the Advisory Group's recommendations, which are summarized below, as well as with the recommendations of the colleges that regulate health care professionals.

Access

Health Authorities.  British Columba's health authorities may need to work together to develop a publicly funded care coordination system to link patients with appropriate care providers of physician assisted death.  This system will need to take into account certain administrative considerations such as physician privileging, payment, and pathways to effectively  manage transfers of care. 

Secular institutions.  Whether or not secular institutions are publicly funded, they should not prevent physician-assisted death from being provided at their facilities.  However, there may be factors which make the provision of physician-assisted death at a particular facility impractical.  In such cases, patients should be offered a transfer to a facility equipped to offer physician-assisted death and where there is a health care provider who is willing and able to accept the patient.

Faith-based institutions.  Given the terms of the Master Agreement between the Province of British Columbia and the Denominational Health Association signed in 1995, we would not expect faith-based institutions in B.C. to be required to provide access to physician-assisted death.  However, they should take into account their  duty of care for their patients in considering administrative mechanisms to ensure access for patients seeking a physician-assisted death – including access to information, assessment, and potentially a timely transfer of care to a non-objecting physician or institution.

All institutions should be prepared to inform patients and residents of any institutional position with respect to physician-assisted dying, including any limits on its provision.  No institution should require patients to give up access to a physician-assisted death as a condition of admission. 

In addition, institutions with restrictions on access to physician-assisted death will need to ensure there are administrative mechanisms in place to make arrangements for and to coordinate the timely transfer of care to non-objecting institutions for assessment and/or provision of physician-assisted death, and be prepared to designate someone for this role.

Medical Staff Considerations

It may be necessary for British Columbia's health authorities to undertake physician recruitment to ensure there are an adequate number of physicians servicing each health region who are willing and able to provide physician-assisted death. 

In balancing the physicians' right to conscientiously object with patient autonomy, hospital administrators may be required to play the role of intermediary to facilitate the timely and effective transfers of care between physicians or institutions. In addition, as the legalities and professional role of health care professionals employed by a health authority or health care service facility becomes clear, the balance between the autonomy of health care providers and patients may necessitate the establishment of specialized care teams made up of individuals who agree to participate in the provision of physician-assisted dying.  The employment conditions and/or hospital privileges of medical staff should not be negatively impacted.

Reporting

It is unclear whether there will be any reporting obligations for institutions where physician-assisted death is provided.  Until the provincial government or the Coroners Service of British Columbia provide further clarity, these deaths should likely be reported in accordance with section 2 of the Coroners Act, which requires reporting of all deaths which are as a result of a self-inflicted illness or injury. In addition, the interim guidance document from the College of Physicians and Surgeons recommends detailed reporting and record-keeping.

One final note on policy

Health care facilities should be aware that until federal and provincial legislation governing the provision of physician-assisted dying is enacted, the provision of a physician-assisted death will be subject to and restricted by the terms of any court order permitting such death.  Depending on the particular language, the order itself may supersede any general policy or procedure adopted by the health authority and should be carefully reviewed and maintained on the patient record.

The final part in this four part series will be posted on March 4, 2016 and will examine the issue of physician-assisted death from the perspective of patients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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