Canada: Medical Assistance In Dying: Bill C-14 Has Passed But We Are Still Uncertain

Last Updated: July 7 2016
Article by Michelle Moldofsky

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.

Eligibility Criteria

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.

Safeguards

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: maidregistration@ontario.ca; 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.

Footnotes

[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

[vi] http://www.ocpinfo.com/regulations-standards/policies-guidelines/refusal/

[vii] http://www.cpso.on.ca/Policies-Publications/Policy/Interim-Guidance-on-Physician-Assisted-Death

[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

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michelle Moldofsky
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions