Very soon, the law against assisted suicide in Canada will cease to exist, but exactly what happens next remains to be seen. On April 14th, the federal government tabled Bill C-14 in an attempt to legalize the process of medical assistance in dying (MAID). The bill is currently making its way through Parliament, but may not be ready in time for the June 6th deadline .
The legalization of MAID has been called a ‘sea change’ in medicine , and there are a lot of questions that need to be answered before it is implemented. Who will be eligible? Do patients need to have a ‘terminal’ illness? What about mental illness? Advanced directives? Should it be restricted to adults – if so, who is an adult? Which healthcare providers are going to assist, and how will it actually happen?
In this two-part series on MAID and the Emergency Department, I will outline the background, implementation and ramifications on assistance in dying in the Emergency Department. In part 1 I will briefly review how we got to where we are right now, and what might happen next. In Part 2 we will examine a question that, as of yet, has received comparatively little attention: what will the impact of MAID be on emergency medicine?
Before getting started, it is important to be clear on some of the basic terminology used when discussing MAID.
Assisted suicide is the intentional ending of one’s own life with the assistance of someone else. In a medical context, this might take the form of a physician prescribing a lethal dose of medication for a patient to take by themselves.
Euthanasia is the “intentional termination of the life of a person, by another person, in order to relieve the first person’s suffering” – for example, a physician administering an IV medication to a patient in order to cause their death . Voluntary euthanasia occurs when this is done with the individual’s consent, non-voluntary euthanasia occurs when this is done to an individual without consent, and involuntary euthanasia occurs when this is done to an individual despite their expressed refusal .
MAID usually refers to either assisted suicide, voluntary euthanasia, or both.
Sue Rodriguez and Canadian Cases
In 1993, the Supreme Court of Canada heard the case of Sue Rodriguez, a 42-year-old woman from BC with ALS. Ms. Rodriguez wanted a physician to help her die before her illness completely paralyzed her, and she asked the Court to strike down section 241(b) of the Criminal Code, which makes aiding or abetting suicide a criminal offence. Ms. Rodriguez argued that the law violated the Charter of Rights and Freedoms, specifically sections 7 (the right to life, liberty, and security of the person), 12 (protection against cruel and unusual punishment), and 15 (the right to equality).
The Court ruled against Ms. Rodriguez 5-4. The majority opinion agreed that a prohibition on assisted suicide was indeed a violation of Ms. Rodriguez’s autonomy, and caused her pain and suffering in violation of her security of the person. However, it was constitutional insofar as it was in line with the ‘principles of fundamental justice’ – that is, the prohibition preserved the state’s interests in protecting life and vulnerable individuals. The dissenting minority disagreed with this conclusion, and argued that a ban on assisted suicide was an arbitrary violation of the right to liberty and security of the person. As there was no longer any prohibition on unassisted suicide, the law unfairly restricted the rights of those who were physically unable to end their own lives .
Sue Rodriguez did end her life with the aid of an anonymous physician in 1994. Since her death, other cases of medically assisted death have come to light in Canada. In 1998, Dr. Maurice Généreux was sentenced to 2 years in prison for prescribing lethal doses of sleeping pills to two men with AIDS (who were not yet terminally ill) – one of the men survived and launched a civil lawsuit against the physician. In June 2007, Dr. Ramesh Jumar Sharm was given a conditional sentence of 2 years less a day and had his license revoked after prescribing a lethal dose of medication to a 93-year-old patient .
There are several jurisdictions around the world that already have experience with MAID.
In the Netherlands, common law has allowed for some cases of euthanasia for several decades, even though strictly speaking it remained against the law. In 2001, formal legislation was passed, decriminalizing voluntary euthanasia for situations of unbearable (but not necessarily terminal) suffering, where both patient and physician jointly conclude there is no other solution, and a second physician (unconnected to the case) agrees. Advance directives are permitted, and parental consent is required for patients under the age of 16. Euthanasia is by far more common than assisted suicide, with 3446 cases of euthanasia reported in 2011 compared to 196 cases of assisted suicide . Euthanasia now accounts for approximately 3.5% of all deaths in the Netherlands, with rates having tripled since decriminalization in 2001 (though there is some debate as to how much of this is a true increase vs. improved reporting) . While the large majority of cases involve patients with cancer, critics have pointed to some cases that have involved less specific suffering (for example, older patients who are “tired of life”) ,as well as protocols that allow for the euthanasia of infants and children deemed to be in states of severe suffering .
Luxembourg legalized euthanasia in 2008 with very similar criteria to the Netherlands, although it is performed in exceedingly small numbers, with only 9 cases declared in 2012 .
Belgium also legalized euthanasia in 2002, but not assisted suicide. It was initially only available to adults over the age of 18 (or legally emancipated minors), who are capable and have an incurable condition causing constant and unbearable physical or psychiatric suffering. Since February 2014, it has also been open to capable minors. Advance directives are permitted, which allow for euthanasia once a person suffering from an illness has progressed to loss of consciousness. A second physician must review the request, and if an illness is non-terminal, than a psychiatrist or specialist in the specific condition must also be consulted. A public commission reviews each case, and physicians will be prosecuted unless a two-thirds majority agrees that all standards were met. In 2011 there were 1133 cases reported, meaning euthanasia accounted for roughly 1% of all deaths .
Switzerland has technically permitted assisted suicide since 1942, when the Swiss Criminal Code outlawed providing assistance in suicide only when done for selfish reasons. Since the 1980s this has been interpreted as allowing for medical assistance in dying, and there have been several high-profile instances of people traveling to Switzerland for that purpose. Euthanasia, however (wherein a physician administers a lethal drug directly), remains illegal . In 2011, referendums to ban assisted suicide or to impose a residency requirement were rejected by 85% and 78% of voters, respectively . In 2009, there were just fewer than 300 assisted suicide deaths amongst Swiss residents, accounting for approximately 0.5% of all deaths. 90% of people were aged 55 or older. 72% of cases involved patients suffering from cancer, neurodegenerative disease, or advanced cardiovascular disease. Depression accounted for 3% of cases, and dementia for 0.3% .
In the United States; Oregon, Washington, and Vermont all permit some form of assisted death. In 1997, after a series of referendums and legal challenges, Oregon passed the Death with Dignity Act, which allows the prescription of lethal medication to capable patients over the age of 18 who have been given a prognosis of less than 6 months to live. The patient must make two oral and one written requests for the medication, with a 15-day period between requests, and then a 48-hour period before a prescription is provided. Patients must be evaluated by two physicians, and be evaluated for counselling if it is suspected that their judgement is impaired by psychiatric illness . In 2015, there were 218 reported prescriptions provided, but only 60% of those prescriptions were actually ingested. The number of prescriptions written increased by an average of 12.1% annually from 1998-2013, and by an average of 24.4% since then. Assisted suicide accounts for roughly 0.4% of all deaths in Oregon .
Carter v. Canada
On February 6th, 2015, the Supreme Court of Canada ruled on the case of Carter v. Canada. The appellants in the case included Gloria Taylor, who suffered from ALS and died in 2012 , and the family of Kay Carter, who suffered from severe spinal stenosis and who sought an assisted death in Switzerland in 2010 . They challenged two sections of the Criminal Code as being unconstitutional: the aforementioned section 241b (which states that aiding or abetting suicide is a criminal offence) and section 14 (which states that no person may consent to death being inflicted upon them).
In a unanimous decision, and in contrast to the Rodriguez case, the Court agreed. They found that the laws in question violated section 7 of the Charter (the right to life, liberty, and security of the person), “to the extent that they prohibit physician-assisted death for a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” . The Court argued that the law was unconstitutional insofar as the prohibition on assisted death forced some individuals to take their lives prematurely, being afraid that they would be physically or mentally incapable of doing so further on down the road (thus depriving individuals of the right to life). They also argued that the law violated the right to liberty by denying individuals the right to make decisions about their bodily integrity and medical care, and violated the right to security of the person by leaving them in intolerable suffering .
The Court suspended its decision for one year, to allow the federal government time to address the laws in question. In January 2016, the Court granted an extension of 4 months, for a new deadline of June 6th, 2016. On this date, whether or not Parliament has passed new legislation, the above Criminal Code sections will no longer be in force. In the meantime, patients have been able to access medical assistance in dying only by judicial review.
Quebec – Bill 52
Prior to the Carter decision, in June, 2014, the Quebec National Assembly passed Bill 52, An Act Respecting End-of-Life Care (with implementation suspended for 18 months) . Much of the bill is concerned with formalizing the provision of end-of-life and palliative care (for example, legislating that every healthcare institution must have clinical programs for end-of-life care), but it is most notable for legalizing MAID in Quebec. To be eligible for MAID, patients must:
- Be 18 years of age or older, capable of giving consent, and covered under provincial insurance
- Suffer from an incurable serious illness
- Suffer from an advanced state of irreversible decline in capability
- Suffer from constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable
Requests must be made in writing, be witnessed, and be assessed by a second physician before the procedure is carried out. The bill permitted the administration of a medication by a physician (euthanasia), but did not address assisted suicide. Bill 52 came into effect December 10th, 2015.
External Government Advisory Panels
In response to the Carter v. Canada decision, the federal government appointed a three-member external panel to consult with Canadians, medical authorities, and a variety of other stakeholders and experts and summarize their findings to aid in determining legislative options .The panel refrained from making specific legislative recommendations.
The provinces and territories (minus Quebec) also appointed a nine-member Provincial-Territorial Expert Advisory Group to examine the issue, and to provide recommendations for legislative options. They made 43 recommendations in total, including the following :
- Patients with a grievous and irremediable condition should be able to make a witnessed, written declaration requesting assistance in dying when their suffering becomes intolerable
- A grievous and irremediable condition should be defined as a very serious illness or disability that cannot be alleviated by any means acceptable to the patient
- Access should not be restricted by arbitrary age-limits, but rather by existing medical standards of consent and capacity
- A second assessment by a physician should be required, but there should be no predefined waiting period required
- Physician assisted dying should be available at home, and there should be no requirement that a physician be present at a self-administered death
- Providers should be required to provide a referral or direct transfer of care to another provider in cases of conscientious objection.
Canadian Medical Association
A 2014 survey of 5000 CMA members concluded that 45% of respondents favoured legalizing MAID, and 27% said they would probably participate in it if it were legalized .
In August 2014, 91% of delegates to the CMA’s General Council Meeting voted to change the CMA’s policy on euthanasia and assisted death from one of opposition, to a statement that the CMA supports the right of following one’s conscience in deciding whether or not to provide MAID, within the bounds of legislation.
In a summary of member dialogue, the CMA noted that while many physicians were concerned about conscientious objectors still being required to refer patients, it was unlikely that legislation would allow for ‘patient self-referral’ to be a viable alternative.
Special Joint Parliamentary Committee
In December 2015, a Special Joint Parliamentary Committee composed of MPs and senators from across the political spectrum was formed to hold hearings on the topic of MAID, and to provide guidance to the government on legislative options. They held 16 meetings, with 61 witnesses from a variety of professions and perspectives, as well as receiving over 100 written submissions. In February 2016, they released their recommendations :
- Eligibility for MAID should be based on the definition used in the Carter case (a grieveous and irremediably condition causing enduring suffering intolerable to the individual in the circumstances of his or her condition)
- Eligibility for MAID should not be limited to those patients with a ‘terminal illness’
- MAID should not be withheld from patients whose suffering stems from mental illness (provided they have capacity and meet the grievous and irremediable standard)
- That while initial legislation could be limited to patients over the age of 18, legislation dealing with ‘mature minors’ should come into force within three years
- That advance requests be permitted, so long as they occur after the diagnosis of a condition that is likely to cause intolerable suffering and loss of competence in the future
- The process should require written requests with two independent witnesses, assessment by two physicians and a waiting period as determined by the physicians involved, based on the patient’s underlying illness
- That all publicly funded health care institutions provide MAID
- That, at a minimum, conscientious objectors must provide an ‘effective referral’
- That MAID should be performed in any ‘appropriate location’, including a patient’s home
On April 14th, 2016, the federal government tabled Bill C-14, an attempt to amend the Criminal Code in response to Carter, and to legislate MAID . The bill differed in several significant ways from the Carter case, and from the Joint Committee’s recommendations, including:
- That MAID is to include both the administering of a substance by a health care provider (voluntary euthanasia), or the self-administration of a medication prescribed by a health care provider (assisted suicide)
- Clarifying that physicians and nurse practitioners might both carry out MAID, and that exemption from criminal charges extends to anyone involved in the process, including anyone that helps a patient to ‘self-administer’ a medication prescribed for the purposes of MAID
- That MAID be eligible only for individuals over the age of 18 with a grievous and irremediable medical condition
- That a grievous and irremediable medical condition must meet four conditions:
- A serious and incurable illness, disease, or disability
- An advanced state of irreversible decline in capability
- Causing enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions they find acceptable
- Natural death has become reasonably foreseeable, taking into account all of their medical circumstances, though a specific time to death does not need to have been prognosticated
Many people were surprised by what seemed to be more restrictive eligibility requirements, especially the specification that a ‘natural death’ has become ‘reasonably foreseeable,’ which seems to limit MAID to those patients with terminal illnesses .
The family of Kay Carter, who suffered from severe spinal stenosis, argued that the under the proposed legislation she would not have been eligible for assistance in dying, despite having been one of the cases to prompt a change in law in the first place . Just this month, the Alberta Court of Appeal ruled that a woman with severe conversion disorder has the right to aid in dying, and argued that the government’s insistence on a ‘reasonably foreseeable death’ went against the Carter ruling .
An Angus-Reid survey of 1517 Canadian adults released on April 1st, 2016, represents some of the most up-to-date insight into Canadian public opinion on MAID .
A remarkable 90% of Canadians agree that some form of assisted death should be allowed, although a significant portion (40%) think it should be subject to strict regulations severely restricting access. 73% of Canadians think it should be available in cases of severe pain, and 76% think it should be available in imminent terminal illness. 78% of Canadians say it should not be available in cases of severe psychological suffering alone. Canadians are fairly evenly divided on whether or not Catholic hospitals should be required to allow MAID in their institutions (41% of Canadians say they should). 72% of Canadians think physicians who object to providing MAID on moral ground should be required to either make a referral themselves, or direct patients on how to self-refer. 58% of Canadians think MAID should be eligible to mature minors with a terminal illness, while 42% do not.
MAID and Emergency Medicine
In Part 2 of this series, we will examine some of the surprising implications these proposals will have for emergency medicine in Canada, and what the international experience can teach us about medical assistance in dying and the ED.[bg_faq_start]
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