Physician-Assisted Dying

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Tyrone Maxwell
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Physician-Assisted Dying Joint Statement to Address the Carter Decision In February 2015 the Supreme Court of Canada (SCC) suspended their decision to legalize a physician s assistance of a competent

However, as a result of an appeal, the SCC granted part of the federal government s request for extra time in producing assisted dying legislation.

1 Physician-Assisted Dying Joint Statement to Address the Carter Decision In February 2015 the Supreme Court of Canada (SCC) suspended their decision to legalize a physician s assistance of a competent adult person to die. The SCC decision on physician-assisted death was to come into force on Feb. 6, However, as a result of an appeal, the SCC granted part of the federal government s request for extra time in producing assisted dying legislation. The government now has until June 6, 2016 to create this legislation. What does this decision mean? As of Feb. 6, 2016 an individual may make a request to the Court of Queen s Bench in Manitoba to have access to physicianassisted death. Currently, there is no specific legislation or rules in place for physician-assisted death. During the interim period, to ensure that health-care providers are compliant with the law and to provide an effective safeguard against potential risks to vulnerable people, decisions regarding physician-assisted death require judicial authorization. In the event that judicial authorization includes a nurse, the appropriate college would provide support. How does this impact nurses? The Carter decision is silent on nurse participation in physician-assisted death. It is especially important for all nurses to remember that you may not provide information about assisted death to clients or families directly. Conversations with clients regarding physician-assisted death could be interpreted as counselling, which could be considered a crime under the Criminal Code. In the interim period, we recommend that all clients making a request for physician-assisted death be directed to their physicians to address any questions. You may want to explore the client s pain and suffering in an attempt to address these care needs for reasons other than the request for physician-assisted death. You (the nurse) can advise the client that you have made the appropriate referral so he/she (the client) has timely access to information. It is most important to remember that communication and documentation are paramount and you must document any interactions and referrals with clients regarding a request for physician-assisted death. How are we moving forward? Nurse participation in physician-assisted death may change once Manitoba s legislation has been determined. We will keep you informed regarding any changes. If you have any questions about this information or would like more information on physician-assisted death, please contact a practice consultant for your respective nursing colleges. Who should I contact? College of Licensed Practical Nurses of Manitoba Jennifer Breton LPN RN BN jbreton@clpnm.mb.ca College of Registered Nurses of Manitoba Darlene O Reilly RN BN MHS doreilly@crnm.mb.ca College of Registered Psychiatric Nurses of Manitoba Ryan Shymko RPN rshymko@crpnm.mb.ca

2 Physician-Assisted Death Advisory Group: Identification of Gaps/Issues Prepared by Manitoba s Nursing Colleges 1 Feb. 5, 2016 Physician-assisted death has become a topic of much discussion following the Supreme Court of Canada s (SCC) suspended decision to legalize a physician s assistance of a competent adult person to die. On January 15, 2016, the SCC granted in part the Attorney General of Canada s application for an extension of time. The SCC extended the time frame by four months from February 6, Quebec is exempted from the four-month extension. During the four-month extension period, the SCC granted a constitutional exemption for individuals who wish to seek assistance in ending their life during the period of any extension. The SCC declared that the person must clearly consent to the termination of life and have a grievous and irremediable medical condition that causes enduring suffering. Nurses are involved in many practice settings and it is anticipated that as members of the health-care team they are in a position to play a role with assisted death. Manitoba s nursing colleges (the Colleges) have identified potential nursing practice issues, gaps in the discussion to date, and contemplated possible roles for nurses in the process of physician-assisted death that have been raised by the Colleges physician-assisted death advisory group. The advisory group was clear that a comprehensive approach should include: role clarity and enable full scope of practice for nurses and other health care providers an informed consent process inclusion of the patient s family when the patient consents and as appropriate alignment with professional standards and code of ethics an inter-professional team in areas of consultation, documentation and decision-making This document refers to recipients of care as patients, a term which includes clients, residents, families and any other recipients. The purpose of this document is twofold: firstly to identify issues for consideration for inclusion in future legislation; and second, to identify topics that need to be addressed from a regulatory perspective in order to implement physician-assisted death in Manitoba. This document is not a position statement on physician-assisted death. Issues for Consideration in Future Legislation Role of the Health-Care Team and Scope of Practice The SCC decision relates only to the role of the physician in physician-assisted death. Important questions regarding the roles of other health-care professionals and the collaboration between members of the inter-professional team have not been addressed. Role clarity is needed for nurses as they play a key role in daily interactions with patients by advocating for 1 Manitoba s Nursing Colleges refers to the College of Licensed Practice Nurses of Manitoba, College of Registered Nurses of Manitoba, and the College of Registered Psychiatric Nurses of Manitoba 1

3 patients, providing emotional support and providing information for decision-making in many settings. The anticipated role of the nurse with regards to physician-assisted death needs to be further defined. The SCC decision indicates that physicians will administer the medications used in physician-assisted death. While this is possible, it is highly likely that a nurse would play a role. Roles for nurses are not identified, but evidence from other jurisdictions indicates that nurses may be involved in, for example, providing information regarding end-of-life decisions to the patient and his/her family, exploring the rationale for a request for assistance to die, establishing vascular access for the patient, assisting physicians with medication administration and providing counselling and emotional support to patients and families. Other health professionals may also be involved at this point, such as pharmacy professionals and unregulated healthcare providers 2. Legislation must provide adequate protection for all members of the health-care team. It is not realistic to anticipate that physicians will be the only providers of care to patients requesting physician-assisted death. These discussions can occur in any practice setting with many health-care professions. The changes to the Criminal Code and other related legislation/regulations should ensure that health-care professionals can continue to practice within their scope and, as such, provide information and engage in discussion to address patient or family concerns and questions. All members of the patient s health-care team could provide some form of assistance to a patient who is requesting assisted death. The Criminal Code and related statutory amendments should provide clear directions on the potential roles of the health-care team to address potential criminal and civil liability concerns for providing assisted death. The appropriateness of physician delegation to physician or clinical assistants should also be considered. Are there aspects of physician-assisted death that are appropriate to delegate to a physician assistant or unregulated health-care provider? Or does the provision of this service lie solely within a regulated health-care professional s scope of practice? These questions need to be considered. Informed Consent The Carter decision made a declaration that sections 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s.7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) 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 advisory committee identified the need for definitions of many terms in this statement. The trial judge in the Carter case found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness and that coercion, undue influence and ambivalence could all be reliably assessed as part of the process. She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnoses and prognoses and the range of available options for medical care, including palliative care. In some areas of the province a physician may not be available to assess the patient. A nurse, nurse practitioner or other regulated health-care professional may be in the best position to determine competence, as they are most accessible to the patient and may have an ongoing patient relationship. A Nurse Practitioner or other nurse could reliably assess patient competence and voluntariness and that coercion, undue influence and ambivalence could all be reliably assessed as part of the process. The advisory group was concerned that patients with health care directives may wish to include assisted death as an option in the event of certain circumstances. Those circumstances could include cognitive impairment which would render the patient incompetent at the time they are choosing assisted death. The availability of assisted death should be determined by a competence assessment at the time of the health care directive. Should this decision be revisited periodically? What type and 2 Unregulated health care providers are paid health care workers who are not registered with a regulatory body. Their title varies and can include health care aid, community support worker, home care worker etc. 2

4 amount of documentation is sufficient to demonstrate a patient s competence? With health care directives, the role of a proxy should also be considered. Can a legal substitute decision maker speak for the patient? A clear definition of adult was also identified as a need. Does the age of majority apply in this circumstance? What consideration is given to a mature minor? These questions should be addressed through legislation to provide clarity for patients, families and health care providers. Health care directive legislation needs to be examined for potential conflicts within the context of assisted death to determine if changes or clarifications are necessary. An adult must clearly consent to termination of life. The consent process should be comprehensive, provide opportunity for consultation, and include ongoing dialogue with the patient as well as a determination of the decisional capacity of the patient. Further development of legislation should include a definition of an inter-professional collaborative approach to the provision of information to patients, obtaining informed consent, witnessing the consent process and documentation. The advisory committee suggested that two-regulated health care providers should make the determination for informed consent with a cool-off period between the two assessments. However, the issue of lack of regulated health-care professionals could be an issue with this approach. Not all parts of the province have consistent coverage from a primary health-care provider. Reliance only on physicians may not be realistic and could compromise a patient s accessibility to this service. Nurse practitioners also have the competencies to provide this service. The Carter decision indicates grievous and irremediable condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in his/ her circumstances as a condition for physician-assisted death. Further definition of the meaning of this statement is necessary. What is a consistent standard definition of intolerable? Is this defined by each individual requesting assisted death such as quality of life is defined by the individual or should standardized criteria be applied when determining what is intolerable? What conditions apply, for example in the case of cancer, stable or static medical conditions, depression and dementia? It may be self-evident that the patient is the one who is suffering, but in a broader context, the patient could also be construed to be the patient s family member, etc. which would create complexities in the interpretation of the document. A consistent approach to the determination of the term grievous and irremediable should be adopted across Canada to allow consistent access and to prevent patients from travelling to a jurisdiction that has a broader definition to access care. Conscientious Objection and Access to Service The advisory group expressed significant concern about the ability of nurses to be conscientious objectors during the assisted death process. A provision in the legislation for health-care providers, including students, to conscientiously object during any point of the process and withdraw from care would provide clear direction to employers and health-care providers. The advisory group also discussed the possibility for facilities, programs or organizations to conscientiously object to assisted death and not provide this service. There needs to be a balanced approach between access to physician-assisted death and conscientious objection at various levels of service provision, both personal and institutional. It is important to maintain the ability for health-care providers to provide care safely within their personal ethics and organizational values. Currently, care that can be viewed as ethically objectionable to health-care providers can be managed by not practicing in that area. For example, health-care providers who object to providing abortions can choose not to work in a clinic where this service is offered. Dependant on the law, assisted death could occur in any practice setting including a patient s home. Conscientious objection of a health-care provider could compromise access to this service. This important topic must be considered during preparation for implementation of physician-assisted death. An individual should not be required to provide health-care services that are in conflict with personal values and beliefs. However in the future, a person will have the right to request a physician-assisted death. In Carter, the SCC stated that a physician cannot be compelled to provide assistance and the conflict of rights needs to be addressed in legislation. New legislation should outline the rights and responsibilities of nurses who are conscientious objectors. 3

5 Other Legislation The detailed application of the Fatality Inquiries Act and the Vital Statistics Act may also be important to disclose to the patient and family. The information that will be required for reporting and possible implications for the patient and his/her family needs to be clearly communicated during the decision-making process. Clarity on the interplay of legislation needs to occur prior to implementation. Legislation such as the Mental Health Act may currently contain sections that would impact a patient s access to assisted death. A Regulatory Perspective Nurses currently have knowledge regarding discussions with patients and their families about end-of-life decisions. With the anticipated change in legislation, these discussions may also include assisted death. Nurses are knowledgeable regarding medication administration, emotional support and end-of-life care. The competencies and standards of practice will accommodate these changes. Changes to legislation to permit physician-assisted death will require direction and guidelines from regulators in relation to nurses roles in this process. The regulator s role in assisted death includes directions, guidelines and education on the many aspects of this process including the management of a nurse s ethical concerns. The topics that may require attention from a regulatory perspective include: The parameters of physician-assisted death/dying (what it is and what it is not) o Differentiation of withholding and with-drawing life-sustaining treatment at a patient s request, palliative sedation and physician-assisted death o differentiation between assisted suicide and euthanasia Ethical considerations o Personal beliefs and professional obligations o Conscientious objection, including the role, rights and responsibilities of a conscientious objector o Impact on health care providers (i.e. compassion fatigue and burnout) Collaboration within the health-care team Cultural sensitivities o Practice and beliefs Available support for nurses Other Considerations The advisory group discussed access to palliative care, as this is still challenging in many areas in Manitoba. This lack of access to palliative care services in itself may become a factor in the decision-making process of the individual with a grievous and irremediable medical condition and needs to be addressed. Given the large geographical area and relatively small population in Manitoba, an expert resource team for physicianassisted death would be useful as an information centre to providers and patients. This team would be beneficial to ensure accessibility to all, especially in rural or remote locations. They could also play a role in directing interested parties to health-care providers that are providing assisted death in the event that the patient s primary health-care provider is a conscientious objector. 4

6 Conclusion The purpose of this document is not to advocate for a particular position but rather to identify issues that could occur in nursing practice and ask that they be considered when drafting future legislation. It is the view of the advisory committee that legislative responses need to address provisions in the Criminal Code, informed consent, conscientious objection and liability. The legislation should clarify the parameters for determining what is meant by a grievous and irremediable condition that causes suffering that is intolerable to the individual. The roles and responsibilities of health-care providers in determining informed consent for a competent adult must also be defined in legislation. The large geographic area and relatively small population in Manitoba requires an approach that provides the service to all Manitobans by a method that is fair and accessible. Utilizing only physicians to determine informed consent could significantly limit the ability of rural and remote patients to access assisted death. To provide a consistent approach to assisted death, clear processes are required and should apply across all settings, including mental health, home care, long-term care and acute care. An expert team of regulated health-care providers could provide advice to health-care providers and refer patients to an appropriate health-care provider if their primary care provider is a conscientious objector. This would provide a sensitive and individualized approach to patients who have questions or are seeking a regulated health-care provider for assisted death. The issue of assisted death is complex and multifaceted. All regulators of health-care professionals will need to take an active role in the implementation of assisted death. This will include providing education to their members and the public and developing standards of practice and code of ethics applications. The regulatory standards of practice for health-care providers for assisted death need to include an inter-professional model of care. The standards of practice need to provide direction and guidance to regulated health-care providers who are part of the team that provides assisted death and address any ethical considerations that arise from providing assisted death. The standards of practice need to provide direction and guidance to regulated health-care providers who are conscientious objectors regarding their rights, roles and responsibilities and address ethical considerations that arise from conscientiously objecting to assisted death. 5

Principles-based Recommendations for a Canadian Approach to Assisted Dying

Principles-based Recommendations for a Canadian Approach to Assisted Dying Principles-based Recommendations for a Canadian Approach to Assisted Dying In February 2015, the Supreme Court of Canada released