Consultations on Physician-Assisted Dying - Summary of Results and Key Findings
Part III – A Report on the Panel's Consultations
Chapter 9. Assessing the Request
In this section of the report, the Panel will provide a brief outline of submissions and recommendations regarding the process of information gathering and assessment that might follow a formal request for physician-assisted dying. Some of these processes–such as an evaluative assessment by a second physician–were widely favoured in many submissions. Others, such as those involving Indigenous elders or traditional healers, were less frequently heard. These various proposals represent a range of options that could form part of the response to requests for physician-assisted death.
A. Medical Assessments
The Panel heard a variety of views on the need to receive input from various physicians as part of the evaluation of a request. These additional consultations could be provided by specialists in generally relevant fields, such as psychiatry and palliative care, or in the specialty relevant to the patient's medical condition, such as oncology or neurology.
Some were in favour of mandatory additional consultations in all cases. Others, such as Dr. Francine Lemire of the College of Family Physicians of Canada, expressed concern that mandatory consultations with psychiatrists or palliative care specialists could hinder access in communities where it is difficult to obtain such services. She indicated that physicians working in such locations would nonetheless welcome consultations if they were available.
1. Confirmation by a Second Physician
Every jurisdiction that has enacted legislation permitting assisted dying requires that a second physician (often called a "consulting physician") confirm the attending physician's approval of a request.
The stakeholders with whom the Panel met widely accepted this requirement as an appropriate safeguard to ensure the careful consideration of physician-assisted dying requests. Stakeholders highlighted numerous benefits: ensuring that decisions are not made hastily, providing increased protection of vulnerable individuals and minimizing the potential for error.
Some groups suggested specific criteria for consulting physicians. The Canadian Medical Association, for example, noted that the consulting physician should be independent of both the individual and the attending physician. A Senate public bill introduced in December 2014, Bill S-225, An Act to amend the Criminal Code (physician-assisted death),Footnote164 includes a requirement that the attending physician have no professional or personal relationship with the consulting physician. Mr. Donato Gugliotta of the Christian Medical and Dental Society of Canada further suggested that an individual's primary care physician not be permitted to approve such a request and that the two physicians who review the request should be completely independent from the individual.
According to David Baker and Rebecca Lauks, disability rights lawyers in private practice, the second physician involved in the assessment of the request should be a specialist in the underlying condition who can evaluate the source of the suffering. It was further suggested by the Physicians' Alliance against Euthanasia that the consulting physicians have specific expertise pertaining to the individual's medical condition. Dr. Catherine Girouard of the Alliance noted that medicine evolves constantly and it is impossible for a single physician to have expertise in every type of treatment and illness, especially different cancers. She suggested having a physician with relevant expertise review each request to ensure all options have been considered.
Although the Panel heard almost unanimous support for the involvement of a second physician, limiting the eligibility of this second physician could act as a barrier to access in small communities, and in rural and remote areas. As the Society of Rural Physicians of Canada noted, many such areas have a shortage of practising physicians. Finding a consulting physician within a reasonable distance that the attending physician does not know personally or professionally may be difficult.
In response to the question of whether obtaining a second medical opinion might create undue barriers, particularly for those in rural locations, Ms. Barbara Glidewell from Oregon observed that what might be perceived as a hurdle in the process, is instead a clear signal that the person's life is valued and their decision about an assisted death is a weighty one:
I think we need to honour the concept of anticipating one's death by not simplifying it so much that it just is oh, here's a prescription. Go take it if you want to. I think we need to honour the person's dignity by showing them that we've gone through a process that respects their life and respects their decisions [without challenging them] unless we should if they seem off... [They need to understand] how much we respect them as a human being.From my perspective not to trivialize their life by saying oh, you'd like to do that? Okay, we'll do it. Here it is and we'll find out if you used it.
2. Mental Health Consultations
Many groups appearing before the Panel discussed psychological consultations. The Panel learned that psychologists are already called upon to help determine medical decision-making capacity in general, as well as in the context of end-of-life care.
Dr. Keith Wilson advised the Panel to consider whether requiring that individuals who request physician-assisted dying undergo a mental health assessment for depression should be a legal requirement. This assessment could result in an opinion on whether the individual's depression may be treatable. Dr. Wilson warned that some individuals may try to conceal their symptoms, however, if they fear that a diagnosis of depression will impede access to physician-assisted dying.
Some groups, including the Association for Reformed Political Action Canada and the Euthanasia Prevention Coalition, have suggested that an independent mental health consultation be mandatory in all requests for physician-assisted dying, to assess capacity, motivations and relational dynamics. Dr. Joris Vandenberghe, a Belgian psychiatrist, offered the same view and noted that the complex factors involved in making the decision to die are key to the practice of psychiatry and psychology. He noted that the expertise of a psychiatrist or psychologist would be particularly important in considering requests from individuals without terminal illnesses. Others proposed that mental health consultations be required only when psychological considerations are relevant or fall outside the attending physician's comfort level.Footnote165
Eli Stutsman, an expert from the Death with Dignity National Centre in the United States who helped draft Oregon's Death with Dignity Act, told the Panel that when the legislation was drafted in 1993, including a mandatory mental health consultation was a contentious issue. Ultimately, health care practitioners convinced legislators that a psychological evaluation could not be made mandatory in all cases, primarily because it was undesirable to characterize all individuals who request physician-assisted dying as having mental health problems. Instead, practitioners would screen for signs of depression and request a mental health consult only if necessary.
The Canadian Psychiatric Association proposed that individuals with a mental illness who are seeking physician-assisted death for another medical condition should be assessed by psychiatrists to determine whether the mental illness impairs their decision-making capacity with regard to physician-assisted death. The Association also called for a psychiatric assessment when an individual requests physician-assisted dying solely because of mental illness. However, the Canadian Psychiatric Association did not advise that a psychiatrist be clinically involved in all requests for physician-assisted death, or in every assessment of capacity.
The Panel met with Dr. Keith Wilson and reviewed a considerable body of research related to the experience of suffering, the prevalence of depression in various populations and the importance of psychological factors in requests for physician-assisted death. On the strength of this research, some of which Dr. Wilson led, he expressed his opinion that:
The provision of medical aid in dying should only occur after thorough assessment of potentially treatable sources of suffering. This would include appropriate medical and palliative care intervention. However, the importance of psychological factors in motivating requests for medical aid in dying should not be underestimated. These factors include diagnosable mental disorders but also broader psychological, social, and existential concerns among those with medical illness. These factors should be considered essential to assessment.
The College of Physicians and Surgeons of Manitoba suggested requiring a psychiatric assessment for individuals without a terminal illness, catastrophic injury, intractable physical pain, who are not in an advanced stage of irreversible and significant impaired function, or who appear to experience a level of suffering disproportionate to their medical condition.Footnote166 In cases where the grievous and irremediable medical condition relates primarily to mental health, the College of Physicians and Surgeons of Nova Scotia proposed requiring that psychiatrists serve as one of the two physicians assessing requests.
3. Palliative Care Consultations
Some groups expressed the view that palliative care consultations should be mandatory to at least make people aware of care options. According to the Physicians' Alliance against Euthanasia, a consultation with a palliative care specialist is necessary to adequately explain the specific effects of proper palliative care on symptom management; other physicians–such as generalists and specialists in other disciplines–may not be able to describe these options as effectively. The Canadian Society of Palliative Care Physicians indicated that providing this type of expertise to reduce suffering is something its members are very willing to do. Palliative care consultations would only be relevant in life-threatening or life-limiting conditions, bearing in mind that Carter extends beyond those diagnostic and prognostic parameters.
Peg Sandeen, Executive Director of the Death with Dignity National Center in the United States, noted that mandatory consultations with hospice or palliative care specialists, or ensuring that one of the two physicians required to review requests be a hospice or palliative care physician, would be a worthy safeguard. She did, however, note the challenges that such a requirement could pose in terms of access in some communities.
B. Contributions of Allied Health Professionals
Modern medical care increasingly involves teams. Where appropriate, interdisciplinary teams care for patients; they are often comprised of physicians, nurses, psychologists, pharmacists, social workers and other allied health care professionals. Incorporating this team approach into a physician-assisted dying framework could have distinct advantages. The Canadian Nurses Association observed that an interdisciplinary team could offer a comprehensive assessment in cases where physician-assisted dying is requested, and could act as a valuable safeguard. It may be important to consider the insight into family dynamics that allied health care professionals, such as nurses, patient advocates, social workers, spiritual care providers and others may have. Further, these professionals could play an important role in assessments of capacity and voluntariness, and offer insights on the factors that may contribute to suffering and vulnerability.
Dr. Francine Lemire, Executive Director and Chief Executive Officer of the College of Family Physicians, spoke of the importance of benefitting from other providers' expertise when assessing complex requests for physician-assisted dying. Referring back to other kinds of clinical challenges over the course of her career, Dr. Lemire observed:
When I did my training, ... whenever we were wrestling with certain situations that were not easy–and I say this as a trainee–the social worker was the first person we thought about in Montreal. In Newfoundland, whenever I was in the same situation, the public health nurse was my first person I was thinking about, and who provided some incredible advice, service, you know, you name it, in some of the complex situations.
Explaining the importance of the health care team, Dr. Alika Lafontaine, Vice President of the Indigenous Physicians Association of Canada indicated:
[W]hen I talk about a team ... it's understanding that at end of life, there are multiple people that are involved. Now, as part of the core team ... that provides the care, I'd imagine [you would] probably have a physician who provides the actual physical mechanism of death.
As such, while physician-assisted dying will directly implicate physicians as those who prescribe and/or administer drugs, other health care professionals are also likely to be involved in the process.
According to the Canadian Nurses Association, registered nurses are Canada's largest group of health care providers. Nurses are omnipresent members of health care teams. They work in many settings: at home, in the community and in hospitals. They are at patients' bedside at all times of day and night, and interact continually with patients, families, support circles and other members of the health care team. For this reason, the Canadian Nurses Association noted that nurses are often an individual's initial point of contact–the first person to whom someone expresses a wish to die or requests assistance in ending their life.
The Canadian Nurses Association noted that physician-assisted dying is a long process. The individual making the request needs information and support not only at the moment of the request and at the moment of death, but also at many moments in between, or "points along the continuum." This support will not always be provided directly by the physician and is likely to be provided by nurses.
The Canadian Nurses Association observed that given nurses' relationships with patients, their role throughout the process of physician-assisted dying could include ascertaining motivation and determining whether coercion or ambivalence are involved. Richard Elliot from the HIV/AIDS Legal Network echoed this perception of the role of nurses as providers "who are going to be closer to the action ... who will be in a better position to sense whether there is something going on. [Such providers] will be the ones who might be able to see if there are any indications of pressure on the decision making by the patient, for example." According to the Canadian Nurses Association, nurses, through their experience and close contact with patients, are particularly well equipped to identify sources of vulnerability and therefore protect vulnerable people. Nurses "bring knowledge ... expertise and experience to those conversations and, with the therapeutic relationship, can be an advocate for those vulnerable patients."
The Panel also heard that nurses may come to be directly involved in physician-assisted dying. The Canadian Nurses Protective Society mentioned the role of the "Most Responsible Professional," or MRP, to denote the main person in charge of an individual's health care. While it was once routine that the MRP be a physician, there has been a shift in the provision of health care, such that, in some provinces, nurse practitioners can now also be MRPs given their broad scope of practice. According to the Canadian Nurses Association, nurse practitioners have "additional educational preparation and experience" and "competencies to autonomously diagnose, order and interpret diagnostic tests, prescribe pharmaceuticals, and perform specific procedures within their legislated scope of practice."Footnote167
The Canadian Nurses Association told the Panel that nurse practitioners have their own caseloads and will sometimes be the health care provider with the most contact with patients. Indeed, many nurse practitioners work in areas where they are the sole practitioners. As a means of ensuring access in some communities, the Canadian Nurses Association indicated that it would be worth considering whether nurse practitioners should be authorized to prescribe drugs for physician-assisted dying.
Foreseeing a future role for nurse practitioners with physician-assisted death, the Canadian Nurses Protective Society suggested using the term "practitioner-assisted death," or "medically-assisted death," instead of terminology that implies that the practice would be limited to physicians.
In line with this anticipated role, the Canadian Nurses Protective Society submitted to the Panel that, given the high likelihood of nurses' involvement in this process, there should be explicit protection in the Criminal Code "for nursing activities surrounding physician-assisted death." In the Society's view, a legislative response to Carter must "specifically address the role of nurses in physician-assisted death." Dr. Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada and Registrar of the College of Physicians and Surgeons of Nova Scotia, indicated that: "any time there's care delivered in any medical setting, there are other ancillary health professionals involved, and I would hope the amendments to the Criminal Code contemplate the roles of other health professionals." The College of Physicians and Surgeons of Ontario echoed this sentiment.
The Canadian Nurses Protective Society saw three specific areas where risks of criminal prosecution exist if nurses are not explicitly protected in the Criminal Code. The first involves discussions with patients about physician-assisted death and the offence of counselling a person to commit suicide under section 241(a) of the Criminal Code. While the word "counselling" is often used in medical settings to mean providing information or discussing, it has a different meaning in the context of the Criminal Code, where it is defined as procuring, soliciting or inciting.Footnote168 The Society noted this distinction, but observed that in a highly emotional context, a health care provider giving information and discussing physician-assisted dying may be perceived as "inciting" an individual to commit suicide. According to the Society, there should be a clear exemption in the Criminal Code for discussing physician-assisted death.
The second area where the Canadian Nurses Protective Society saw a risk of criminal prosecution is when a nurse is part of the treatment team providing physician-assisted death. During this process, the nurse may provide various types of care, including discussing treatment options, monitoring indicators of capacity, providing comfort, and preparing or assisting in the administration of the drugs used to induce death. In other words, even in situations where physicians are prescribing or administering the lethal substance, they rarely act in isolation and will likely be assisted by nurses.
The third area of concern relates to nurse practitioners acting as the most responsible professional, and the possibility that they may eventually be called upon to determine if the eligibility criteria have been met and to prescribe the lethal medication. This would be conceivable where nurse practitioners operate within the community or in long-term care facilities, or in remote locations where the nurse practitioner is the only health care provider readily available. According to the Canadian Nurses Protective Society, the protection of nurses should take the form of a clear exemption in the Criminal Code.
The Canadian Nurses Protective Society indicated that absent such explicit protections in the Criminal Code, there may be a chilling effect within the profession, restricting open and spontaneous communication with patients about their suffering.
In their submission to the Panel, the Canadian Nurses Association also noted that health professionals will have a distinct experience with assisted death:
Assisted death will radically transform the moment of death, changing what health-care providers are used to regarding what a good death looks like. A nurse or physician is generally accustomed to seeing a patient deteriorate over time, eventually becoming less alert, more sleepy, etc. Assisted death will change this. At one moment a patient may look well and be eating breakfast and then, after the administration of the medication, they will stop breathing and changing colour, and their death will be sudden. It is a different way of dying, which health-care providers are not yet familiar with.
The Association called for access–for all health care providers–to ethical and psychological support, to help them cope with and navigate the process of physician-assisted dying, and to resolve any moral distress.
The Canadian Pharmacists Association indicated that there is a role for pharmacists to play in physician-assisted dying, and that this role will require some training. Pharmacists work in both hospital and community settings. They will be involved where individuals are prescribed a lethal dose of a given medication. They would fill the prescription and would need to provide counselling on how to take the medication and its effects. Pharmacists would also be involved in situations where a physician administers the medication, since a prescription must also be filled, although the Association indicated that patient counselling may not be necessary in such cases.
According to the Association, pharmacists are largely in favour of legislation that would mandate pharmacist counselling to individuals or their families at the moment of dispensing. It argued that pharmacists should also have access to an individual's diagnosis and care plan when dispensing the lethal medication.
The Association stated that pharmacists could play an important counselling role, given that persons who obtained a prescription for medication in the context of physician-assisted dying may have questions, including how the medication works, what to expect and whether there might be interactions with other medications. There may also be a role for pharmacists to be present when the lethal medication is taken.
Pharmacists could also play a role in collecting and disposing of unused medication, something that nearly 90% of pharmacies in Canada already do, according to the Canadian Pharmacists Association. This may help to address the concern others raised about prescriptions left unused in home settings when individuals die before taking them.
The Association discussed the need for a more robust prescription system for physician-assisted dying to address its concern that dispensing pharmacists may not know whether the individual seeking the prescription meets eligibility criteria. Representatives of the Association described the triplicate prescription pad currently used for opiates, on which each prescription is reproduced threefold: one for the patient, one for the physician, and one sent to the government for tracking. The Association was not sure about the necessity of this type of system for physician-assisted dying, however, given the emergence of e-health and electronic prescriptions.
The Canadian Nurses Protective Society cited pharmacists as another group of health care providers in need of a clear, explicit exemption under the Criminal Code for their involvement in physician-assisted dying.
3. Spiritual Care Providers
Mr. Marc Doucet, President of the Canadian Association for Spiritual Care, described spirituality as
"whatever connects me to what is beyond myself in an isolated situation... it can be relationship, it can be nature, it can be a supreme being." Spiritual suffering, he explained, is linked fundamentally to identity, and how we understand ourselves in the world. He reflected on the dimensions of spiritual suffering as distinct from, but often connected to, physical pain:
So we can medicate pain, but there can still be suffering. And suffering would be, you know, how do I let go of my life, how do I have a good death, the suffering of not seeing my children raised, not being around for major events, not accomplishing what I wanted. That would be the spiritual suffering.
The Panel heard that spiritual health care workers see themselves as playing an important role in assessing and supporting individuals who express a desire to end their life with the assistance of a physician. The Canadian Association for Spiritual Care argued that a spiritual assessment should be mandatory whenever physician-assisted death is requested and should be conducted by a spiritual care professional. The spiritual care provider would not be part of the decision-making process, but would instead serve to inform that process, to support the person making the request and to explore the depth of self-knowledge expressed in their request. In the Association's view, absent this spiritual assessment, referred spiritual pain risks being experienced as intractable physical pain by some individuals.
4. Indigenous Healers and Care Providers
Carrie Bourassa, Professor of Indigenous Health Studies at the First Nations University, informed the Panel that traditional healers have a significant role to play in conversations and assessments related to physician-assisted dying. Dr. Alika Lafontaine of the Indigenous Physicians Association of Canada proposed an itinerant team, comprised of local health care providers, for Indigenous persons who request physician-assisted dying.
Melanie MacKinnon, Senior Director of the Section of First Nation, Métis and Inuit Health Branch at the University of Manitoba and President of the Aboriginal Nurses of Manitoba, referred to the effect upon Indigenous communities of an increased medicalization of birth and death, and the lack of community-based resources to support these experiences:
Death in our communities, natural death aside from accidents and traumatic death, have been removed from First Nation communities for over the last 50 years... So when we think of who we are from the cycle of life, for having life coming in and being born into our communities and life going out and dying from a physical essence, those two really critical phases of life have been removed from what would be and could be and should be a natural life cycle.
Other experts outlined the need to allow greater flexibility and understanding within medical settings for the presence of Indigenous community and family members, and to accommodate different spiritual practices at end of life.Footnote169
Melanie MacKinnon also shared with the Panel her view that community health leaders would prefer to be left to do what they know is best for their communities–focus on behavioural and spiritual health–and that funding remunerate elders, thus bringing dying back to the communities.
5. Vulnerability Assessment
Mr. Michael Bach, Executive Vice President of the Canadian Association for Community Living, raised the issue of the demographic trends of vulnerability in Canada:
- On the one hand, a rapidly increasing proportion of the population is living now with disability, and confronting a growing gap in access to needed home supports, respite supports and income supports.
- On the other hand, an aging population is poised for the largest inter-generational transfer of wealth we have seen, and understood by Law Reform Commissions in Canada to be increasingly vulnerable to financial and other abuse.
Mr. Bach told the Panel that vulnerable persons must not be excluded from making autonomous requests for an assisted death. He also suggested that when indications of vulnerability are present, the person be assessed to see whether coercion or inducement contributed to the request. He spoke of what he called the "Carter challenge"–the challenge of providing access to physician-assisted death with due care for persons at risk:
How do we have a nuanced system respecting that people are individually resilient in different ways? [B]ecause one is living in poverty, a caregiver stress situation, [or] lack of support doesn't necessarily mean that you can't act autonomously and make this decision, but it should give us pause to consider if in your particular situation these factors are working in a way that restricts your liberty.
The detailed framework proposed by the Association called for a vulnerability assessment to be integrated into the process of responding to requests for physician-assisted death. This assessment process would be initiated within 24 hours of a request and would involve a social worker or psychologist. In many cases, the assessment might consist of a single conversation to determine whether any unmet needs have compromised the person's autonomy. In other cases, the assessor would help the person access options and supports to meet their immediate needs.
David Baker provided the Panel with proposed legislation that includes a provision for referral to a "counsellor" in a manner that might lend itself to the vulnerability assessment proposal detailed above. The Panel notes that other organizations, including Citizens with Disabilities Ontario, supported this aspect of the proposed legislation.
C. Informed Consent
Informed consent is a legal and ethical principle requiring physicians and other health care providers to provide all relevant information so that patients can make a voluntary choice regarding their treatment that is fully informed. At trial in Carter v. Canada, Justice Smith specified that:
The doctrine of informed consent protects a patient's right to accept or refuse medical treatment. No medical procedure may be undertaken unless a medical practitioner has obtained the patient's consent after providing her with information sufficient to enable her to evaluate the risks and benefits of the proposed treatment and other available options. Informed consent presupposes the patient's capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances.Footnote170
Many groups suggested that the medical standards for informed consent should be applied to requests for physician-assisted dying. Many experts and stakeholders told the Panel that informed consent necessarily requires that individuals have the opportunity to consider all reasonable and available alternatives–treatments, approaches and supports that might ease the distress underpinning their request to die. The Canadian Association of Community Living (CACL) further underscored that supporting "real autonomy" in informed consent to physician-assisted death requires facilitating consideration of "alternative courses of action." CACL highlighted that this exploration of alternatives must take into account the social and economic conditions of vulnerability that place some people at risk of being induced to commit suicide in times of weakness.
The Catholic Health Alliance emphasized that informed consent should be understood as an "evolving process," one that must develop over time "and through dialogue between the patient and many providers." The submission from the Canadian Federation of Catholic Physicians' Societies echoed this approach, describing informed consent as
"more of a process than an event, evolving over time, mirroring maturation of the patient-physician relationship ... where the risks and benefits of a proposed intervention can be shared in a meaningful way."
The Canadian Society of Palliative Care Physicians, among others, raised concerns about who may provide consent for physician-assisted dying. It suggested that a surrogate should never be permitted to consent for such a procedure–that only the individual requesting assisted death can provide the appropriate consent. This is consistent with the conditions specified by the Supreme Court in Carter.
To ensure consistent application of informed consent, it may be important to identify the specific information that must be provided to individuals requesting physician-assisted dying. Some jurisdictions set out in legislation the type of information that must be provided. Legislation in Québec, for instance, requires that physicians inform individuals about the prognosis of their illness and about therapeutic options and their likely effects.Footnote171 Some of the common types of information required in Vermont, Washington and Oregon include medical diagnosis, prognosis, life expectancy, the range and likely effects of treatment options (including palliative, hospice and comfort care, pain control, etc.), the specific risks associated with assisted-dying procedures, and the individual's right to revoke a request at any time.
Many of the assessments detailed in previous sections, such as medical opinions and discussions with allied health professionals would form part of a person's informed consent. Not included in other jurisdictions, but raised for consideration during the Panel's consultations, was whether individuals requesting physician-assisted death should be advised about other interventions, such as assistive technology, and income, disability, respite and home supports.
The notion of a waiting period is a procedural safeguard that aims to guarantee the enduring nature of a request for a physician-assisted death. It tries to ensure that the request is not impulsive, transient, or made at a particularly difficult moment. Many groups agreed that there should be a waiting period,Footnote172 thus implying a requirement for more than one request. Opinions varied as to whether this waiting period should be prescribed by law or left to physicians' judgment, and whether it should be proportionate to an individual's prognosis.
The concern that most groups expressed with a mandatory waiting period is that a specific, prescribed duration could be arbitrary. A period that is too short might facilitate access for individuals who might have changed their minds given more time. In some cases, however, a mandatory waiting period–even if relatively short–could still be too long, deny autonomy and unnecessarily prolong suffering.Footnote173 This could be especially true in cases when suffering is great and death appears imminent.
1. Fixed vs. Flexible Waiting Periods
A few groups were in favour of a longer, fixed waiting period.The Canadian Federation of Catholic Physicians' Societies argued that a 15-day waiting period is too short. It noted that life-changing diagnoses can take months to accept. The Canadian Psychiatric Association suggested that when requests come from individuals with a mental illness, a minimum of six weeks should elapse between assessments, and reasonable treatment options should be pursued during this time.
Most groups were of the view that a certain degree of flexibility in the waiting period is necessary.Footnote174 The British Columbia Civil Liberties Association and Mr. Howard Shapray were of the view that no mandatory waiting period should be legislated. Similarly, the Canadian Civil Liberties Association (CCLA) did not see a mandatory waiting period as a meaningful safeguard. If one were legislated, the CCLA argued, exceptions should be available for individuals whose conditions are rapidly deteriorating. The CCLA expressed concerns that waiting periods would impede access.
The Canadian HIV/AIDS Legal Network advised against a fixed waiting period, particularly a long one, as it could unjustifiably extend some individuals' suffering. The Network noted that even a proportionate waiting period, meaning one that would vary according to an individual's prognosis, may not be appropriate. For instance, the Network advised against requiring that someone with a non-terminal illness endure suffering for a year before their request can be considered. While recognizing that it may not be a perfect solution, the Network suggested leaving the determination of the waiting period to the physician, in the context of the therapeutic relationship.
David Baker and Rebecca Lauks, disability rights lawyers in private practice, called for a "short-term infringement of autonomy" for individuals who have recently acquired a disability so that they have time to come to terms with their new circumstances. This, they argued, would help protect potentially vulnerable people from opting for physician-assisted death when their psychological suffering may be transient. Mr. Baker and Ms. Lauks did not suggest how much longer such individuals might have to wait before their requests can be considered.
2. Relying on the Physician's Clinical Judgment
The issue of a waiting period also arose in the Panel's discussions with medical regulators and medical authorities. Dr. Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada and Registrar of the College of Physicians and Surgeons of Nova Scotia, indicated that he does not foresee mandating a specific waiting period. Instead, he suggested intervals
"informed by a reasonableness standard in contemplation of the situation of the patient."
The Canadian Medical Association (CMA) argued that a single standard waiting period is not appropriate in all cases, and called for periods proportionate to an individual's prognosis. The CMA generally recommended a 14-day waiting period between requests. The CMA did not suggest this as a hard and fast rule, but rather as a guideline that could be modified according to the physician's clinical judgment.
The Canadian Society of Palliative Care Physicians proposed a waiting period proportionate to a person's life expectancy. The Society noted that most requests for physician-assisted death are not emergencies and that the typical two-week period is arbitrary and may be too short, or too long, in some cases. The Society advocates adopting a degree of clinical judgment because situations will vary; some individuals will have already given the decision much thought before expressing their first request, while others might seek physician-assisted death as a reflexive response to a diagnosis or change in circumstances.
Chapter 10. Determination of Requests
As earlier sections of this report have demonstrated, there are many specific decision points in the process of physician-assisted dying. Once a person decides initially to make a formal request–a decision that person will be expected to confirm or reconsider at various stages in the process–multiple other decisions and judgments might follow, such as whether the person:
- is an adult
- has a grievous and irremediable medical condition
- has enduring, intolerable suffering caused by the medical condition
- has the capacity to make a request for assisted death
- is fully informed of the diagnosis, prognosis, treatment options and supports, the likely outcome of the physician-assisted death procedure or other matters specified in the regulatory framework
- clearly consents without coercion, undue influence or inducement
These, of course, are all smaller but significant decisions along the way toward the ultimate determination of whether or not a person's request for an assisted death will be fulfilled. The Panel understands that there may be other decision points not included on this list, depending upon any regulatory structure that may be adopted by provincial, territorial, and federal legislators. For example, a decision about whether a person meets the residency requirements may be added. The above list, however, captures the basic set of incremental decisions required to comply with Carter.
Earlier sections of this report discussed each of these decision processes individually, and have identified questions that will be asked and answered as the Carter judgment is implemented. How will adult be defined? Can intolerable suffering be understood as a subjective decision to be made only by the individual requesting physician-assisted death? Who will decide whether a condition is grievous and irremediable?
This chapter describes the answers that interveners, stakeholders, medical authorities and individuals provided to questions about how and by whom the final decision will be made to provide physician-assisted death.
In the Panel's meetings with stakeholders and experts, opinions diverged most dramatically on the issue of who may decide whether to grant an individual's request for physician-assisted death. Groups most strongly guided by the principles of individual autonomy and patients' rights felt strongly that the decision should be made jointly and exclusively by the physician and the individual seeking physician-assisted dying. Groups that emphasized the protection of vulnerable persons proposed a variety of more formal decision-making processes, many involving judges, tribunals or external panels to determine whether legal criteria are met.
Many of the Carter interveners, as well as some stakeholders who contributed to the Panel's consultations, argued that an important protection for potentially vulnerable people is to have an objective decision maker or decision-making body review requests for physician-assisted death before a physician may grant it. The most important argument in favour of this position is that physician-assisted dying is irreversible; there is no way to remedy an error after an individual dies. Other supporting arguments included: protecting physicians from prosecution for wrongful determinations; resolving potential conflicts when a physician does not support a request; and relieving physicians of the burden of moral and social responsibility that may accompany physician-assisted dying.
Other interveners and stakeholders strenuously opposed the idea of prior authorization or review by any formal decision-making body as an unreasonable barrier to access. Some of these groups cited previous Supreme Court of Canada jurisprudence in R. v. Morgentaler.Footnote175 In Morgentaler, the Court held that the abortion provisions in the Criminal Code violated women's rights to security of the person under section 7 of the Charter. Central to the decision was the issue of delays inherent in the therapeutic abortion committee process established under the Criminal Code. Professor Jocelyn Downie and others have argued that the Morgentaler precedent suggests that panels and other external decision makers would create unreasonable barriers to access. In her opinion, the Supreme Court would likely find that administrative delays imposed by a requirement for prior authorization impinge on eligible individuals' right to security of the person.
Outlined below is a brief review of the submissions received by the Panel with regard to the final determination of requests for assisted death in Canada.
A. Prior Judicial Authorization
The Association for Reformed Political Action (ARPA) recommended that judges should authorize requests for physician-assisted dying before a physician can proceed. The Association suggested that a superior court judge must screen for misdiagnosis and must determine the severity of the individual's condition, their capacity to consent, the voluntariness of their decision and whether the person requesting physician-assisted death is an adult. ARPA argued that such prior authorization must be granted by a judge and not a tribunal because tribunals may become politicized and therefore biased.
The Euthanasia Prevention Coalition-B.C. also argued that physician-assisted dying should proceed only with a court order, as this would be the best way to promote transparency and to avoid oversight by an
"ad hoc pair of physicians ... who report their actions in a potentially self-justifying and self-exculpatory way after the event." The organization dismissed the view that judicial authorization could result in unreasonable delays by saying that the number of individuals who seek physician-assisted dying is expected to be small, although the issue of existing court caseloads was not addressed. The Euthanasia Prevention Coalition [Canada] agreed that there should be judicial oversight, arguing that
"[e]uthanasia is a public act... for which condemnation has been deemed appropriate" and that absent judicial authorization, it will be
"impossible to, number one, maintain the public nature of the act, and number two, to effectively enforce ... regulation."
The Christian Legal Fellowship argued in favour of prior judicial authorization as a means of protecting physicians. The Fellowship noted that because physicians could face murder charges, they should have a court's authorization as a form of legal protection. The Evangelical Fellowship of Canada recommended "judicial warrants" analogous to warrants authorizing search and seizure to "safeguard the patient, the physician, and the medical system" and to ensure appropriate scrutiny. The Christian Medical and Dental Society of Canada called for judicial authorization because physicians may show a bias in granting requests, particularly requests from individuals with whom they have had a long relationship. The Society argued that a judge would perform an unbiased evaluation. The Physicians' Alliance against Euthanasia proposed prior judicial authorization as a means of verifying individuals' competence and the voluntariness of their requests.
B. Prior Authorization by Administrative Tribunal
Administrative tribunals differ from courts. Although they often perform an adjudicative role, tribunals are arm's length decision-making bodies created through legislation to administer a particular Act or policy. They tend to be less formal than courts and may have more flexible procedures. Some examples include human rights tribunals and municipal boards. Some groups that appeared before the Panel suggested that rather than having a court decide whether an individual may access physician-assisted death, a tribunal could hear such requests. Many tribunals are composed of members with specific expertise.
Some groups that proposed prior authorization by an independent decision maker had not settled on a recommendation for a particular type of adjudicative body, but appeared to favour one over the other. For example, the Council of Canadians with Disabilities in its submission called for a judge or an "administrative law panel" [i.e. a tribunal] to decide on requests for physician-assisted dying, but in its meeting with the Panel, emphasized the tribunal. It called for the establishment through legislation of a body to hear requests on physician-assisted dying. As a model, the CCD pointed to Ontario's Consent and Capacity Board, a tribunal composed of lawyers, psychiatrists and members of the public, which hears matters arising from several of Ontario's healthcare statutes.Footnote176 The Council further suggested that the body should
"have the power to subpoena witnesses and request further information as necessary to reach a reasoned and fully informed decision."
David Baker and Rebecca Lauks, disability rights lawyers in private practice who presented draft legislation for physician-assisted dying to the Panel, proposed that determinations be made by Review Boards, established in each jurisdiction in Canada pursuant to section 672.38 of the Criminal Code. Mr. Baker reasoned that a system of prior review would respect and encourage the involvement of the physician who knows the person best, would ensure that a person's choice to die is based on accurate and complete information, and would be "rights enhancing" in the sense of assuring that the person's right to available treatment and support has been honoured. In response to the suggestion that a process of this nature might be onerous, Mr. Baker responded that the process could be very informal, noting that Review Boards in Ontario "go to hospitals, go to where people are, and meet them on their own turf... they are not cloistered away in some remote location which is unapproachable."
While acknowledging Mr. Baker's reasoning that the constitutionality of these Boards has been tested with respect to their current role, and that this role could potentially be adapted, the Panel also recognizes that the role that Mr. Baker and Ms. Lauks envision would represent a significant departure from the Review Boards' existing and highly specialized mandate. At present, these Boards serve to determine the status of individuals found to be
"not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder."Footnote211
C. Physician-Assisted Dying Panel
Some groups that proposed prior authorization focused more on the need for a variety of perspectives and checks and balances than the formal procedural requirements that are currently in place at a court or tribunal. The Canadian Association of Community Living (CACL) proposed that all requests for physician-assisted death be decided by an independent review panel. Panels could, the CACL argued, operate flexibly and yet could pull together expertise from a variety of fields. Although the CACL made reference to Ontario's Consent and Capacity Board as an example of a specialized decision-making body, it did not emphasize a need for the formal procedural requirements typically associated with courts and tribunals. The CACL cited international law and Canada's obligations pursuant to the Convention on the Rights of Persons with Disabilities in support of its submission that prior review is necessary to protect potentially vulnerable people.
The CACL's submission stressed that the process "should not be onerous where it is not warranted," insisting that the review should be extremely sensitive and adaptive given the need for timely decisions. It noted that there could be provision for an expedited process whenever appropriate.
The Canadian Psychiatric Association recommends that physician-assisted dying panels be established to decide whether a request for assisted dying should be fulfilled. The Association suggested that such panels would help protect the therapeutic alliance between the individual and a clinician by eliminating any obligation on the clinician to decide whether the individual meets eligibility criteria. The Association emphasized that decisions about physician-assisted death
"should not be based on a single assessment, but rather on multiple assessments by different experts." Speaking on behalf of the Association, Dr. Sonu Gaind identified two major benefits of such an approach:
"It mitigates the risk of there not being the proper expertise pulled into the decision making process. It also separates the decision-making process from the clinical care." In Dr. Gaind's opinion, there would be no reason for concern about lack of access provided that responsibility for delivery was regionally distributed, and did not fall to individual institutions to implement.
Mr. Marc Doucet, President of the Canadian Association for Spiritual Care, also described for the Panel a model involving "a panel of two or three people," perhaps including a physician but not one involved in the direct medical care of the person making the request. He reasoned that "an arm's distance evaluation" would provide some measure of "consistency across each decision," and guard against situations where a physician's "dual relationships" of responsibility and accountability to a patient or a community might compromise the decision-making role.
D. A Decision between Individuals and their Physicians
The British Columbia Civil Liberties Association (BCCLA) expressed the view that there should be "no barriers erected to qualifying individuals accessing physician-assisted dying," stressing that such barriers might be deemed unconstitutional. The BCCLA argued that
"physician-assisted dying should be considered a private matter between physician and patient, like all other treatment decisions at the end of life or otherwise."
The Disability Advisory Council of Dying with Dignity Canada's position appears to accord with the BCCLA perspective:
It is essential that any measures taken to protect the individuals with disabilities do not create barriers to physician assisted dying for people who are suffering from grievous and irremediable medical conditions, who are rational and who request physician assisted dying. We are most concerned about the various ways in which this soon to be allowable element of medical care may be withheld.
Thomas Foreman, Joshua Landry and Michael Kekewich, ethicists from the Champlain Centre for Health Care Ethics at the Ottawa Hospital, also argued against creating barriers that impede access to physician-assisted dying. They argued that because no prior authorization is required for withholding or withdrawing life-sustaining treatment, no such authorization should be required for physician-assisted dying.
Most of the physicians' professional organizations and regulatory bodies that addressed decision making also argued that decisions should be made by individuals and physicians, not by an external body. For example, Dr. Francine Lemire, Executive Director of the College of Family Physicians of Canada, expressed reservations about an external review process. She told the Panel that she "would favour an approach whereby we can feel more than reasonably comfortable that all the appropriate steps will have been followed by providers in the journey, without needing that tribunal." She reasoned that an external panel might have a depersonalizing effect, tending to "interfere, impact, bring rules and regulation in a journey that is part of a process, a process of life."
During the Panel's meeting with the medical regulators, including almost every provincial and territorial college of physicians and surgeons as well as their national organization, the Federation of Medical Regulatory Associations of Canada (FMRAC), there was little support for the idea of prior authorization. The only college to express support was the Prince Edward Island College, on the basis that a panel could expedite requests for physician-assisted dying by facilitating access to any necessary assessments:
So to have access to a system whereby you can actually get access to a psychiatric consultation instead of waiting six months or to a social worker if you're not sure where there's undue influence, even to get the information together for an individual physician would not happen. If the system is set up such that the information is gathered, the medical information comes from a physician but there's often more social information that's required that it just would be unavailable to a sole practitioner.
The Saskatchewan College expressed the view that some sort of review body may be beneficial in accessing
"the quick consult from the psychiatrist, or to have the social worker able to come and assist" in cases where an individual's capacity is in question. It might also provide a recourse for individuals whose requests for physician-assisted dying were denied. The College emphasised that any review should be conducted after requests are fulfilled; it expressed concern that prior authorization would create a "degradation of the doctor-patient relationship" and a barrier to access.
The New Brunswick College argued that prior authorization
"was exactly the kind of thing that was considered unconstitutional in Morgentaler, having to go through some committee to decide whether you can have an abortion. I can't see how this is any different." The College of Family Physicians of Canada also likened the idea of prior authorization to the former abortion regime challenged in Morgentaler, as did the Association québécoise pour le droit de mourir dans la dignité. The Association argued that any prior authorization process would unreasonably prolong a decision that affects "a single patient at a very particular precise moment in their life." The Ontario College also rejected prior authorization, as did the Manitoba College, noting that any such process would likely be intimidating and cumbersome in comparison with the end-of-life conversations that individuals should have with their physicians.
Dr. Douglas Grant, President of FMRAC and Registrar of the Nova Scotia College of Physicians and Surgeons stated that although his college supports retrospective review, it is not in favour of prospective oversight. He first stated that prior authorization would impede access, then argued that physicians' ability to make decisions about capacity and the appropriateness of treatment formed the "entire backbone of the Carter decision." He expressed great concern that the implementation of a prospective process has the potential to undermine confidence in physicians' ability to make these determinations and to "eat at the fabric of what [he thinks] is the essence of medicine."
Some allied health care professionals also weighed in on the issue. The Canadian Pharmacists Association expressed the view that prior authorization by a judge or tribunal would not be necessary to protect its members' interests, arguing instead for clear delineation of pharmacists' liability.
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