The new lawi provides exemptions to the Criminal Code to permit for medical assistance in dying, previously a crime in Canada.
A person cannot consent to have death inflicted upon them (culpable homicide is an offence with up to life imprisonment). It is an offence (up to 14 years' imprisonment) to either counsel a person to commit suicide or to assist them to commit suicide.
The new law provides exemptions to these sections of the criminal code for:
- medical practitioners and nurse practitioners to provide assistance in dying for eligible patients in accordance with certain criteria now listed in the Criminal Code (s. 241.2);
- for people who assist the medical practitioners or nurse practitioners as above, specifically including pharmacists who dispense the drugs;
- for people who assist the patient, at the patient's explicit request, to self-administer a substance prescribed as above; and
- for health practitioners who provide patients with information about lawful provision of medical assistance in dying.
These exemptions apply even if there is a reasonable but mistaken belief about a fact that is an element of the exemption.
How does it work?
There are eligibility criteria describing the patients for whom the exemption applies. There are safeguards describing the process requirements that medical practitioners and nurse practitioners must follow. New offences have been created:
- Failure to comply with safeguards has up to a 5-year imprisonment;
- Forgery or destruction of any document has up to a 5-year imprisonment;
- Failure to provide information as required by the regulations has up to a 2-year imprisonment (comes into force on June 17, 2017); and
- Failure to comply with guidelines on completing death certificates has up to a 2-year imprisonment (comes into force on June 17, 2017).
The practitioners are also subject to the requirements of their provincially regulated colleges which will have more detailed processes for practitioners to follow.
The eligibility criteria are that the patient must:
- Be eligible for government funded health insurance in Canada (people who would be eligible for government funded health insurance but for a waiting period of residence are also eligible);
- Be 18 years' old;
- Be capable of making decisions about their health;
- Have a grievous and irremediable
medical condition, meaning a
- Serious and incurable illness, disease or disability,
- Advanced state of irreversible decline in capability,
- Enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that they consider tolerable, and
- Natural death has become reasonably foreseeable (prognosis as to specific length of time remaining is not required);
- Make a voluntary request that is not made as a result of external pressure; and
- Give informed consent after being informed of means available to reduce suffering such as palliative care.
The safeguards include requirements that the medical practitioner or nurse practitioner must ensure that the patient meets the eligibility criteria and that documentation contains the required signatures, including being signed and dated by two independent witnesses. Practitioners must obtain a written opinion from an independent second practitioner that the patient meets the eligibility criteria.
There must be an opportunity for the patient to withdraw the request and there must be 10 clear days between the date of signature of the request and the date that assistance in dying is provided (unless the patient's death or loss of capacity to consent is imminent).
There are other safeguards including who can be a witness to the consent, that witnesses need to understand the nature of the request, and what information needs to be provided to a pharmacist who is asked to fill a prescription for the purpose of assistance in dying.
But, what do health care institutions need to do?
There is uncertainty inherent in this implementation stage of the new law. As stated in my last LinkedIn post on the subject dated June 17, 2016, an excerpt of which follows, health care institutions can assist their patients and practitioners by clarifying certain matters in internal institutional policies.
Hospitals and health care organizations will need to consider updating their policies to deal with the following issues:
Patient access to medical assistance in dying at the institution
Hospitals, long-term care homes, hospices, palliative care facilities and other health care institutions should have a clear process to manage requests for medical assistance in dying. If there are limitations to access in a particular institution, it is important for patients to know so that they may make informed decisions.
The Ontario government is encouraging institutions to develop policies with respect to medical assistance in dying, especially with respect to ensuring that patients understand what access is available in the institution and with respect to arranging patient transfers for a consultation about palliative and end-of-life optionsii.
Institutions should indicate any requirements on physicians to notify the institution of a request.
Institutions will likely be asked by their nurses and pharmacists about the steps that should be taken in light of a request for medical assistance in dying. Both the College of Nurses of Ontarioiii and the Ontario College of Pharmacistsiv have posted guidelines for their members. In some cases, guidelines suggest that the individual health practitioner seek legal advice. As employees of health care institutions, they may be contacting their employer for assistance in this regard.
A policy from the College of Physicians and Surgeons of Ontariov sets out the responsibilities of physicians who conscientiously object to providing medical assistance in dying or consultations to that effect. Effective referrals are required and, as such, physicians will need their institutions to have procedures for the effective transfer of patients to access the referred physician.
The Ontario College of Pharmacists policy, Professional Obligations when Declining to Provide a Pharmacy Product or Service due to Conscience or Religionvi, sets out similar requirements.
There is a clinician referral service provided by the Ontario government (E-mail: firstname.lastname@example.org; Phone: 1-844-243-5880).
Process for accessing medical assistance in dying
The CPSO policy statement #4-16, Physician-Assisted Deathvii, sets out the process map that physicians will need to follow, including two requests from the patient with a reflection period in between the requests, obtaining a consult from a second physician confirming that the criteria have been met, and a required notification to the coroner. Patients are to be informed that the coroner will investigate the death and that whether or not an autopsy will be included is not determined in advance.
Conscientious objection to medical assistance in dying
Medical practitioner and nurse practitioner involvement in medical assistance in dying with respect to eligible patients has been decriminalized. The new law does not compel anyone to provide medical assistance in dying. However, human rights legislation in each province still applies to the provision of health care services.
Conscientious objection by physicians in Ontario is governed by CPSO policy #2-15, Professional Obligations and Human Rightsviii, which does require an effective referral to a practitioner who is willing to provide the services to which the referring physician has objected. Health care institutions should consider the implications of an effective referral, including how patients seeking medical assistance in dying will be transferred to a willing physician.
[i] An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), Assented to on June 17, 2016: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=8384014
[ii] Ministry of Health and Long-Term Care and Ministry of the Attorney General, Medical Assistance in Dying: Update Stakeholder Presentation, June 6, 2016
[iii] Check the www.cno.org website. June 20, 2016 update: http://www.cno.org/en/news/2016/06/medical-assistance-in-dying--update/
[iv] Check the www.opcinfo.com website. June 27, 2016 update: http://www.ocpinfo.com/regulations-standards/policies-guidelines/assisted-death/
[v] Policy #2-15, Professional Obligations and Human Rights, http://www.cpso.on.ca/Policies-Publications/Policy/Professional-Obligations-and-Human-Rights
[viii] Op. cite v. For news regarding an application to court that this policy violates the Canadian Charter of Rights and Freedoms, see CPSO News Release "Statement from the College of Physicians and Surgeons — Professional Obligations and Human Rights", Mar 24, 2015: http://www.cpso.on.ca/Whatsnew/News-Releases/2015/Statement-from-the-CPSO-Professional-Obligations-a
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