"This issue is not one of life or death. The issue is what kind of death, an agonized or peaceful one. Shall we meet death in personal integrity or in personal disintegration? Should there be a moral or demoralized end to mortal life?"
Fletcher, J. (1954). Morals and Medicine. Princeton, NJ: Princeton University Press at 754
Healthcare professionals are intimately involved with end of life processes, and in many cases will play a significant role in the care and planning around those processes with their patients. With the imminent arrival of legislation on physician-assisted death, this unique and privileged role requires particular consideration by lawmakers and regulators, as the rights of patients must be balanced with the rights of those who will facilitate their death.
Effective February 6, 2016, for the duration of the four month extension of the Supreme Court of Canada's ("SCC") suspension of its decision in Carter v. Canada, 2015 SCC 5, individuals seeking a physician-assisted death in BC may to apply to the Supreme Court of British Columbia for approval (See Carter v. Canada, 2016 SCC 4). In the absence of legislation, it has fallen to the professional regulatory bodies to set out the parameters for physician-assisted death in BC.
Interim guidance for physicians
In a media release on January 22, 2015, the College of Physicians and Surgeons of British Columbia ("CPSBC") announced its approval of an interim guidance document for its registrants on physician-assisted dying. The CPSBC's interim guidance document is aimed at assisting physicians in navigating the practical gray area created by the SCC's exception to the suspension of the Carter decision.
The CPSBC's five page guidance document recognizes the need to strike a balance between patient autonomy and the right of BC's physicians to conscientiously object and abstain from performing physician-assisted death on the basis of their personal values and beliefs. Clearly seeking a middle ground between patient autonomy and physician rights, the interim guidance document states that physicians who object are not required to make a formal referral on behalf of their patients seeking physician-assisted suicide; however, they have an overriding duty of care which requires them to provide an effective transfer of care.
The majority of the CPSBC's interim guidance document focuses on the CPSBC's procedural requirements for physician-assisted death, which are summarized below:
1. A formal request or physician-assisted death must be in writing – A patient's formal request for physician-assisted death may also be made orally, but such a request must be transcribed by a third party. The required witness to a request for physician-assisted death must NOT be:
(a) a relative of the patient;
(b) an individual entitled to any portion of the patient's estate; or
(c) the attending or consulting physician; or
(d) an owner, operator or employee of a healthcare facility where the patient is receiving treatment.
2. Adults Only – Minor children who suffer from grievous and irremediable medical conditions which cause enduring suffering are not eligible for physician-assisted death even if they have the capacity to consent to other forms of medical treatment.
3. MSP Eligibility – The patient must be an adult and eligible for insurance coverage under the Medical Services Plan of BC ("MSP"). This requirement raises the question of access to physician-assisted death by residents of BC who are not eligible for MSP, and whether the denial of physician-assisted death would amount to a breach of such an individual's legal right to access medical treatment.
3. Consistent desire for physician-assisted death over a reasonable period of time – What is meant by a "reasonable period of time" will depend on a subjective assessment of the patient's medical condition and circumstances. In most situations, 15 days will be a reasonable waiting period.
4. Physician Impartiality – Both the attending and consulting physicians must agree that the patient qualifies for and has consented to physician-assisted death. However, those two physicians cannot work in the same practice group, nor can they be related to the patient. Recognizing that this may present challenges in small, rural, or remote communities, either physician may provide their opinion remotely by videoconference, provided there is a physician or nurse physically attending the patient.
5. Physician Licensure Requirements – It is not necessary for both the attending and consulting physicians to be licensed to practice medicine in BC. One physician may be licensed in another Canadian jurisdiction provided the assessing physician is licensed in BC.
6. Clinical Recordkeeping – There are detailed suggested requirements for documenting consent, charting in the patient's clinical record, and completing the patient's death certificate.
Some regulatory bodies in other jurisdictions have also responded with their own suggested guidelines, including the College of Physicians and Surgeons in Alberta, Manitoba, and Ontario. It is clear that in the coming months, those provincial and territorial regulatory bodies who have not yet formally responded to the legalization of physician-assisted death, including the College of Registered Nurses of British Columbia, will need to develop clear practice standards and guidelines for their registrants to address the professional practice issues which will arise as patients start to request physician-assisted death in Canada. BC's health authorities and healthcare service facilities will also be faced with the task of preparing their own internal policies and procedures to govern the provision of physician-assisted death at their sites.
Physicians in the courtroom
It is evident that the role physicians will be asked to play over the coming months will extend beyond their traditional scope of practice and into the courtroom. On February 2, 2016, the Ontario Superior Court of Justice issued a Practice Advisory for Ontario lawyers with respect to Applications for Judicial Authorization of Physician Assisted Death. It is evident from that document that the Court expects to rely heavily on evidence from physicians in determining whether to permit the physician-assisted death of applicants. The Ontario Practice Advisory suggests applicants lead evidence from not only their attending physician, but also from a consulting psychiatrist and the physician proposed to assist with the applicant's death. While the Supreme Court of British Columbia has not yet issued a similar practice advisory, it is likely BC physicians will be called upon in a similar fashion as these applications start to come before the Court.
The next part in this series will be posted on February 19, 2016 and will examine the issue of physician-assisted dying from the perspective of BC's health authorities and healthcare service facilities.
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.