Bill C-14 and assisted dying

May 6, 2016

Dr. Carl W. Nohr, MA President

Dear Member:

I am writing to provide an update on assistance in dying. The newly released Bill C-14 has undergone first reading in the House of Commons. Whether there will be amendments is presently unknown, and my comments below reflect the current state of the bill.
Click to Read Bill C-14.

What does the bill do?

Bill C-14 proposes to create exemptions from the criminal code in relation to Medical Assistance in Dying (MAID). It also addresses some issues related to pensions and benefits, information management and provides for a parliamentary review five years after Royal Assent to the bill. I appreciate that it also refers to a government commitment to support a full range of options for end-of-life care.

In addition to the providers of MAID, the proposed legislation excludes pharmacists from criminal liability when dispensing a medication for the purpose of MAID, and for other persons assisting the provider or the patient in the provision of MAID.

There is a provision in Bill C-14 requiring that MAID must be provided with reasonable knowledge, care and skill. I am pleased to see this, as it will place patients in the hands of providers who have those requisite qualities. This requirement should be reflected in standards of practice that relate to the management of requests for, and the provision of, MAID.

As for the protection of conscience rights of practitioners, the preamble to the bill states ”…the Government of Canada has committed to … respect the personal convictions of health care providers….”

Terminology and language

You will already have noticed that the term “medical assistance in dying” (MAID) has replaced “physician assisted death” (PAD). This reflects the legislation’s intent to permit physicians and nurse practitioners to provide medical assistance in dying.

MAID as defined in the bill includes both medically administered and prescribed self-administered lethal substances.

Eligibility criteria

While advancing the autonomy of persons, society has an obligation to protect the interests of the vulnerable, including the young, the mentally ill and those unable to provide consent. Eligibility criteria are therefore important.

To avoid medical tourism, Bill C-14 stipulates that a person may receive MAID if they are eligible, or soon would be, for government funded health services in Canada. The other essential criteria for eligibility are the existence of a grievous and irremediable medical condition, being at least 18 years of age, voluntarily requesting MAID, and the ability to give consent. By removing the need for an investigation into the medically assisted death of an incarcerated person, the proposed legislation makes MAID available to inmates.

The proposed age limit precludes access for children at present. However, the bill provides for parliamentary review of the provisions in five years. I would not be surprised, however, to see either an amendment to the proposed legislation to provide for a review at an earlier date, or the development of case law as court challenges evolve.

The definition of a grievous and irremediable medical condition is very important, and I quote:

”A person has a grievous and irremediable medical condition if:

(a) they have a serious and incurable illness, disease, or disability;
(b) they are in an advanced state of irreversible decline in capacity;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

It has been suggested in the media that one of the patients involved in the 2015 Supreme Court of Canada (SCC) decision would not have qualified for assistance under the proposed federal legislation because of the requirement for reasonably foreseeable natural death. The federal minister of justice disagreed. I believe the imprecise wording of the proposed legislation with respect to prognosis is an advantage as it reflects our inability to precisely prognosticate, while allowing for medical judgment to be tailored to the particular patient. I do not have sufficient knowledge of the precise medical circumstances of the patient involved in the SCC decision, but there seems to be sufficient laxity in the proposed federal legislation that it could include most or all significantly debilitated persons.

Special considerations

The preamble to the bill refers to the government’s commitment to explore situations giving rise to requests by advance requests, requests where mental illness is the sole underlying medical condition and from mature minors. These are clearly areas where further societal, legal, professional and personal deliberation and debate are needed.

The use of advanced directives, at least for now, appears to be ruled out for two reasons: the requirement that the person must be able to withdraw the request at any time; and that they must give consent immediately prior to receiving medical assistance in dying. Some are advocating for the use of advanced directives. This hinges on whether we regard the ability to withdraw consent as an essential part of the individual autonomy that is the foundation of MAID in the first case – or whether we think that having once consented, the autonomy to subsequently withdraw consent vanishes at the moment we lose capacity. If we believe that the principle of personal autonomy includes the opportunity to withdraw consent even after capacity is lost, then the utility of an advanced directive that results in death becomes problematic.

Another question that is relevant to the requirement for contemporaneous consent at the time of a MAID event is the accuracy of our projections for a future state of being. The use of advanced directives means making an irreversible decision today that, at the moment of loss of consent capacity, MAID could occur. Can we be so certain that the way we imagine our future life, particularly quality of life, is so accurate that we would relinquish the opportunity to subsequently make a different decision? Or is it possible that we might find some of the countless variations for our future life sufficiently acceptable, perhaps even enjoyable, that we might choose such a life over a previously requested death?

One could argue that advanced directives are well established to provide for care in the absence of capacity to decide for one’s self. However, it may be that such advanced directives that place limits on the provision of undesirable or heroic care are very different than a directive that requires an active intervention to cause death.

Whether or not mental illness in isolation from other medical conditions meets the criteria will likely be subject to testing; at first glance it seems unlikely because of the “naturally foreseeable death” requirement.

Assessing C-14 and looking forward

While there are some opportunities for fine tuning, I believe that Bill C-14 as proposed strikes a reasonable balance for a pluralistic society between autonomy and protection, with adequate opportunity for testing and refinement.

The next steps to watch for are the progress of this proposed federal legislation and attached regulations, any provincial legislation that might follow, the outcome of any court challenges, and any changes in relevant college standards or advice to the profession.

I will keep you informed. In the meantime, let us continue to listen to our patients, and to provide the expert and compassionate care they deserve.

Your comments are always welcome. Please leave a comment below.

Kind regards,

Carl W. Nohr, MDCM, PhD, FRCSC, FACS
President

4 comments

Commenting on this page is closed.

  • #1

    Darcy Dupas

    Member of the public

    2:20 PM on May 06, 2016

    I found your letter informative for my understanding of the health practitioner's point of view.

  • #2

    Richard Taylor

    Physician

    4:02 PM on May 06, 2016

    ... "Can we be so certain that the way we imagine our future life, particularly quality of life, is so accurate that we would relinquish the opportunity to subsequently make a different decision? Or is it possible that we might find some of the countless variations for our future life sufficiently acceptable, perhaps even enjoyable, that we might choose such a life over a previously requested death? "....

    Well said! But isn't this a potent argument against assisted suicide in all situations, not just as an advance directive?

    "Whether or not mental illness in isolation from other medical conditions meets the criteria will likely be subject to testing; at first glance it seems unlikely because of the “naturally foreseeable death” requirement."

    I don't think so... I predict we will see patients with mental illness who "wish to die" but are denied "Medical Assistance In Dying" proceed to kill themselves, perhaps proving that their life expectancy isn't so great after all....

    Physicians in Holland are now saying "who am I to deny them" and 20% accept medically assisted suicide on demand. I fear that we are about to see a similar change in our values in Canada.

    Physicians should support compassionate care, not killing...

  • #3

    Dr. Robert Betzner

    Physician

    3:16 PM on May 09, 2016

    This now places medicine in the justice system with outcomes that incude a criminal record. While it proclaims to have strict guidelines, I predict the bounaries will soon become fuzzy just like they did for abortions. As you may recall, abortions started with "strict" criteria. Now the college demands we comply and assist with requests for all abortions. The future of this law may include physicians and practioners being sued for causing undue pain and suffering because they did not wish to participate in requests assisted death.

  • #4

    Theodore Fenske

    Physician

    10:54 AM on May 21, 2016

    Dear Dr. Nohr,

    Thank you for this update on Bill C-14 and your thoughtful comments regarding its current state.

    While I appreciate the attempt in the document to balance autonomy and protection, as you've highlighted, I am very concerned that adopting such a bill will be detrimental to the practice of medicine in our Province. There is no medical indication for euthanasia or physician assisted death. This contemporary push to have them legalized has been driven by ideology, namely human secularism, rather than medical necessity. Doctors and nurses should never kill; nothing could be more fundamental in healthcare. The so-called safeguards proposed will not stand, as the Dutch experience clearly indicates, and if we proceed down this path will leave us in a state of "euthanasia on demand."

    It's not too late for Alberta to reject the proposal and is well within our constitutional rights as a province to do so. Medical leadership has never been more important for Alberta than in this present time. Please give these thoughts some consideration.

    Sincerely,

    Ted Fenske, MD, FRCPC, FCCP, FACC
    Clinical Professor University of Alberta,
    Staff Cardiologist, CK Hui Heart Centre

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