A special joint committee will give the federal government its recommendations on physician-assisted death Thursday, bringing Canada a step closer to setting up a framework for doctors to help their patients die.
But the committee’s report, and Ottawa’s response to it, could have much broader implications, affecting the way health practitioners assess a patient’s capacity to make treatment decisions, physicians’ obligations when a patient’s desire goes against the doctor’s beliefs — even the way Canada’s provinces collect death statistics.
Last year a unanimous Supreme Court ruling found Canada’s prohibition on physician-assisted death violates the Charter.
The ruling in Carter v. Canada stated that mentally competent adults enduring intolerable suffering as the result of a “grievous and irremediable” medical condition have the right to a physician’s help in dying.
Originally, the Court gave the federal government a year to amend the Criminal Code. But the Conservatives waited several months to strike a panel whose work was then put on hold for a months-long federal election.
That gives the feds until June 6 to come up with a federal framework for physician-assisted death.
Speaking with Global News last week, Health Minister Jane Philpott admitted she’d like more time, but said the government will make its deadline.
“Obviously it’s a complex issue. There are a lot of factors to take into consideration. … And so on the one hand, of course it would be lovely to have more time,” she said.
“But on the other hand, we’re hearing from people who are facing suffering and who are facing challenging end-of-life issues. And I think that’s why the Supreme Court would like us to get on with a decision as soon as possible.”
WATCH: How do you balance doctor, patient rights on assisted-death?
The Carter ruling specified “adults” have a right to assisted death. But what is an adult? In Canada, there’s no consistent rule: Some provinces consider you “age of majority” at 18; others at 19.
But it’s even trickier when it comes to health care: There’s already precedent allowing for “mature minors” to make health care decisions for themselves, says Dalhousie University’s Jocelyn Downie, who co-authored a provincial-territorial report on assisted death last year.
“We have prior decisions from the Supreme Court talking about medical decision-making by mature minors,” she said.
The Carter ruling explicitly mentions “psychological suffering” as a consideration when people seek assisted death.
And while some people are squeamish about the idea of allowing people to get help dying when their desire to die is motivated by mental illness, the feds would have a hard time justifying an exclusion on that basis. They could face another court challenge if they try.
“Mental illness should not be an exclusion criteria. And age should not be an exclusion criteria,” Downie said.
“What you flag is the seriousness of the fact that the person needs to be capable.”
The challenge for a doctor whose patient wants to die because of a mental illness will be to determine whether that person, despite the mental illness, has the capacity to make that decision.
If the answer is yes, that person is eligible for assisted death.
In some jurisdictions — most U.S. states, for example — only people in the advanced stages of terminal illness are eligible for assistance dying.
Quebec made this requirement part of its criteria when it rolled out assisted-death legislation of its own late last year. But they’ll probably have to change it, Downie says.
It may sound like splitting hairs, but this becomes crucially important if someone has, for example, a “grievous and irremediable” diagnosis that will result in that person losing their mental capacity before death.
Does that person have a right to request assisted death at the time of diagnosis, laying out the point at which he wants to die in advance?
It’s similar to the concept of “advance directives,” Downie says. But those are provincial jurisdiction. And in this case, the feds may want to set out the rules.
The ruling — and most discourse on the issue — refers to “physician”-assisted death.
But there’s no reason the feds couldn’t expand it to include nurse practitioners operating within their scope of practice, or nurses operating under the direction of a physician.
This would dramatically increase access to assisted death in remote communities where doctors are hard to come by.
As Health Minister Philpott notes, there’s precedent for this.
But that precedent hasn’t turned out well for patients, Downie says.
In theory, when a patient wants an abortion and her doctor doesn’t want to give her one, the doctor has a duty to refer her to a health practitioner who will.
“We have a disturbing history of physician conscience trumping patient access,” she said.
“Historically the provinces have left conscience to the colleges. And the colleges, many of them … have basically abdicated their responsibility to serve the public interest on this.”
It seems like a minor issue. But the way we track deaths and other vital statistics has major consequences in health and public policy decisions.
Downie argues it makes the most sense to classify “Manner of Death” as “Physician-assisted,” but including both the lethal dose of drugs and the underlying medical condition under “Cause of death.”
Otherwise you lose statistical track of lives lost to cancer, for example, when those lives are ended a few weeks or months early at the patient’s behest.
“That’s what gets reported up to our national databases, so you can understand the burden of disease in our country,” Downie said.
As if the mechanisms by which suffering people can get help dying weren’t enough, Canada’s decisions on assisted death have even broader implications, Downie said.
One of the most pointed criticisms of the assisted-death movement has come from advocates of people with disabilities who argue that vulnerable individuals — including the very old, the very sick, people living with intellectual disabilities or mental illness — may be pressured into making decisions resulting in their death.
But physicians across Canada make determinations about people’s mental capacity on a daily basis, Downie said. They determine whether a person has the competence to consent or refuse consent to treatment all the time.
“Concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making,” the Supreme Court’s ruling reads.
Our mechanisms of determining medical consent are hardly perfect, she notes: They vary widely not just from province to province but from one health practitioner to another.
But the solution, Downie argues, is to strengthen consent and capacity assessments for all eventualities — including death.
“If we can figure out how to do that better, to build vulnerability assessment into our standard capacity assessments … that will benefit us across the board.”
This probably isn’t something the feds can mandate. Ultimately it’s up to provincial Colleges and professional bodies that develop guidelines.
Clearly explaining what a doctor’s duties are when she doesn’t agree with a patient’s wishes could clear up not just assisted-death cases, but abortion and other ethically tricky situations.
A push for uniform collection of vital statistics across the country could be a boon to researchers, policy-makers and journalists everywhere. It would give Canadians a much clearer view of who they are, how they’re living and how they’re dying.
“This is a problem that has implications across the board for us in the health system,” Downie said.
“Knowing how and why people die really matters, well beyond assisted death.”
WATCH: Health Minister on physician-assisted death
What rights do you think doctors have when their patients want help dying?
Well you are no doubt aware the Supreme Court has made it very clear that Canadians, when faced with intractable illness, under a certain set of circumstances, have the right to access assistance in dying. And what we’re in the process of doing now, as a federal government, is consulting Canadians on what kind of parameters need to be put around that and to develop appropriate legislation as a federal government. …
One thing we’ve heard from some of the consultations across the country is that many doctors are concerned about being able to exercise their own conscience. That message has been heard loud and clear. And right now the special joint committee has been hearing from doctors about those concerns. And I have no doubt we’ll be able to take those concerns into consideration as we draft legislation.
Do they have an obligation to refer?
It’s not without other precedents, or similar kinds of examples doctors have had to face over the years when their conscience may be different from the desires of their patients. And there’s always a way to work through that. And I have no doubt the special joint committee will get back to us with good recommendations and the government will be able to draft appropriate legislation
You’ve been a family physician for years. If a patient came to you and said, ‘Look, I’ve been struggling with this chronic illness for years. It’s hurting my quality of life. I don’t want to do this any more,’ what would you say?
Well, I don’t know that I really want to respond to a hypothetical situation. I can tell you, from my past experience, that I’ve obviously dealt with many patients who have died. And my priority as a family doctor is to make sure that they have the very best care throughout life — ‘from cradle to grave,’ we like to say in family medicine; that’s the kind of care that we provide– and I think doctors have an obligation to make sure their patients have an understanding of all of the options they have for care. So those are the kinds of conversations I was having with patients.
[For] a person whose desire to die is motivated by a mood disorder like depression, how do you ensure that desire to die isn’t compromised by the mood disorder?
Well you are raising some of the very most complex issues on the matter of physician-assisted dying. And I think it’s a little bit early for me, because of my position, to be able to give you hard and fast rules. Because that’s exactly why we’ve been consulting Canadians. That’s exactly why we’ve put in place the special joint committee to give us the very best advice. And I know they’ve been talking to experts in the field, mental health experts, people that represent some of the most vulnerable populations in our community, and I have confidence the consultative approach that we’ve put in place is going to be very helpful and will inform us as we come up with the appropriate legislation.
Is that something the feds can legislate, do you think, or should that be left up to the provinces?
I think there is actually quite a spectrum in terms of how extensive it’s going to be and how much will be left to provinces and territories, and also regulatory bodies. … I suspect were going to get some good advice on those matters.
Do you think you have enough time?
You know, obviously it’s a complex issue. There are a lot of factors to take into consideration. But its a conversation that in various places has been taking place for some time now. And so on the one hand, of course it would be lovely to have more time. But on the other hand, we’re hearing from people who are facing suffering and who are facing challenging end-of-life issues. And I think that’s why the Supreme Court would like us to get on with a decision as soon as possible.
Some people have argued that the federal government doesn’t need to make a law, that effectively you could sort of take what the court’s given you and leave the rest to the provinces and regulatory bodies. Why is it important to have national legislation on this?
One of the things that I have heard from health ministers across the country is they would prefer not to see a big patchwork of legislative options. And of course there will be some differences and some jurisdictions will prefer to add their own nuance and their own details on legislation. But I think one of the hopes of many provinces and territories is that the federal legislation will help to provide a fairly unified response across the country.