Risk & Compliance 600-299 Victoria Street Prince George, BC V2L 5B8 (P) 250-645-6417 (F) 250-565-2640 MEMO Date: 29 March 2016 To: All NH Physicians From: Kirsten Thomson, Regional Director, Risk & Compliance Re: Medical Assistance in Dying Current State: The decision of Carter (2015) in the Supreme Court of Canada to remove the blanket prohibition on physician assisted dying was suspended for one year, followed by a 4 month extension, meaning the decision will come into effect June 6, 2016. 1. Interim applications for physician assisted dying During the interim period of February 6 to June 6, 2016, patients may still seek physician assisted dying by applying to the Supreme Court of BC for an exemption. Attached at the end of the document are the guidelines issued by the Supreme Court of BC on the process, including relevant forms and documents, for applying for an exemption. 2. Development of regulatory framework During the interim period, both the federal and provincial governments are working to establish a regulatory framework to address legislating physician assisted dying. It is unclear at this point how the legislation will be distributed between federal and provincial, but a draft of some description is expected by April. The legislation is expected to address eligibility, medical circumstances, consent, and procedural safeguards. Provincial legislation will play a role in anything not legislated federally. The legislation is expected to address how the exemption will apply to other healthcare professionals who may be affected, including nurse practitioners, nurses, and pharmacists. At this point, these groups are recommended to contact their professional bodies if they become involved in a request for assisted dying. Several groups have provided recommendations on what the legislation ought to include; the recommendations from the BC College of Physicians and Surgeons are included at the end of this document. Recommendations from Parliament and the Provincial-Territorial External Advisory Group are included as links following:
Parliament Canada Special Joint Committee on Physician-Assisted Dying Provincial-Territorial Expert Advisory Group on Physician Assisted Dying 3. Provincial Working Group A provincial working group in BC has been struck to support health authorities in developing a consistent operational approach for implementing medical assistance in dying (MAID), which is the term that is suggested in place of physician assisted dying. This group will review the legislation and develop consistent processes for implementation of this service. Kirsten Thomson, Regional Director of Risk & Compliance in the Northern Health representative on this group. 4. Privileging and Credentialing The BC Medical Quality Initiative has tasked a working group of physician leaders, chaired by Dr. Becky Temple and including the registrar of the BC College of Physicians and Surgeons, to develop a review process for the Provincial Privileging Dictionaries, which outline the core and non-core privileges for specific specialties working within health authority facilities. Part of this work is developing processes for new procedures and treatments. With the changes related to MAID, an expert panel similar to the panels that originally developed the Privileging Dictionaries has been struck. They will develop the definitions, training and current practice for the non-core privileges around MAID, including both the provision of the assistance in dying and the assessment of suitability and competency. 5. Receiving a request from a patient The Ministry of Health is providing provincial leadership in addressing operational issues for health authorities; in order to facilitate a consistent approach during the interim period, each health authority has been requested to alert the Ministry of Health to any requests for assistance in dying received. If you receive a request for assistance in dying, please contact Kirsten Thomson by phone or e-mail: Office: 250-645-6417 Cell: 778-349-0929 E-mail: kirsten.thomson@northernhealth.ca Please contact Kirsten for any other questions or concerns on this subject. Northern Health Memo Page 2
SUPREME COURT OF BRITISH COLUMBIA Notice Regarding Applications for Exemption from the Criminal Code Prohibition Against Physician Assisted Death In Carter v. Canada (Attorney General), 2016 SCC 4, the Supreme Court of Canada directed that applications may be brought to provincial superior courts for exemption from the Criminal Code prohibition against physician assisted death, in accordance with the criteria set out in Carter v. Canada (Attorney General), 2015 SCC 5 ( Carter (2015) ). This notice is intended to provide guidance to counsel and parties who intend to bring an application to the Supreme Court of British Columbia for an exemption from the Criminal Code prohibition. The notice is advisory only and the direction given is subject to any orders made by the judge presiding on the application. Further, for the assistance of counsel and the parties, this notice refers to the types of evidence discussed in Carter (2015), however, the onus rests on the applicant to confirm and meet the evidentiary requirements set out in Carter (2015). Application to be made by Petition 1. A person wishing to bring an application for an exemption from the prohibition against physician assisted death ( an exemption application ) must file a petition, supporting affidavits and a draft of the order sought. Ancillary Confidentiality Orders 2. An applicant for an exemption order may wish to seek a sealing order, publication ban, anonymity order, or an order that the exemption application be heard in camera (such orders are referred to collectively hereafter as confidentiality orders ). In that event, a copy of the unfiled petition, supporting affidavits and a draft of the order sought on the exemption application, as well as a draft of the confidentiality orders sought, must be submitted to the Supreme Court Scheduling Manager at the relevant registry before the proceedings are commenced.
P a g e 2 Request to Appear 3. The Chief Justice of the Supreme Court or another judge designated by him will hear exemption applications and ancillary applications for confidentiality orders. 4. Counsel or a party wishing to bring an exemption application and/or any of the above mentioned confidentiality orders, must file a Request to Appear before the Chief Justice to set a time for the hearing of the applications, and to seek additional directions. The Request to Appear may be found on the court s website at the following link: Request to Appear Pre-hearing Conference and Directions 5. The Chief Justice or another judge designated by him will review the Request to Appear and the petition, supporting affidavits and the draft order sought on the exemption application, as well as any materials in support of a confidentiality order. 6. The Chief Justice or designated judge will convene a pre-hearing conference to give directions or will provide written directions as to the date for hearing the exemption application. 7. The Chief Justice or designated judge may also give directions in relation to notice, service of documents, filing of responses, issues of standing, timelines for filing materials, or other matters. Service of Materials in Support of Exemption Application 8. Subject to any directions made by the Chief Justice or designated judge on an exemption application, the petitioner must serve the petition, supporting affidavits and draft order sought on: a. the Attorney General of British Columbia; b. the petitioner s spouse, if the petitioner is cohabiting with his or her spouse at the time the petition is made; and c. any person named as the petitioner s attorney, if that power of attorney is effective at the time the petition is made. Evidence about the Petitioner 9. On the exemption application, the petitioner must file an affidavit providing the following information: a. the petitioner s date of birth;
P a g e 3 b. the petitioner s place of residence and the duration of that residency; c. the petitioner s medical condition (illness, disease, or disability); d. whether as a result of his or her medical condition, the petitioner is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the petitioner; e. the reasons for the petitioner s request for an exemption from the prohibition against physician assisted death; f. whether prior to commencing the petition, the petitioner has been fully informed about his or her medical condition (illness, disease, or disability), diagnosis, prognosis, treatment options, palliative care options, the risks associated with the treatment and palliative care options, and the risks associated with a physician assisted death; g. the manner, means and proposed timing for the physician assisted death for which the petitioner seeks an exemption; h. whether the petitioner is aware that his or her request for an exemption for a physician assisted death may be withdrawn at any time; and i. whether the petitioner is aware that if the order sought in the petition is granted, the decision to use or not use the exemption is entirely the petitioner s to make. Evidence of Attending Physician 10. On the exemption application, the petitioner must also file an affidavit from the petitioner s attending physician addressing whether, in the opinion of the attending physician: a. the petitioner has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering; b. as a result of his or her medical condition, the petitioner is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the petitioner; c. the petitioner was fully informed about his or her medical condition (illness, disease, or disability), diagnosis, prognosis, treatment options, palliative care options, the risks associated with the treatment and palliative care options, and the risks associated with a physician assisted death; d. the petitioner has the mental capacity to make a clear, free, and informed decision about a physician assisted death; and
P a g e 4 e. the petitioner has consented without coercion, undue influence, or ambivalence to a physician assisted death. f. the petitioner is aware that his or her request for an authorization for a physician assisted death may be withdrawn at any time; g. the petitioner makes the request for authorization for a physician assisted death freely and voluntarily; and h. the petitioner is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the petitioner s decision to make. Evidence of Second Physician 11. On the exemption application, the petitioner must also file an affidavit from a second physician, who does not practice in the same clinic or office as the attending physician. The second physician need not be a psychiatrist, unless the petitioner is currently being treated by a psychiatrist, in which case the affidavit should be from that psychiatrist. The affidavit should address whether, in the opinion of the second physician: a. the petitioner has a grievous irremediable medical condition (illness, disease, or disability) that causes the petitioner to suffer; b. the petitioner has the mental capacity to make a clear, free, and informed decision about a physician assisted death; and c. the petitioner has consented without coercion, undue influence, or ambivalence to a physician assisted death; d. the petitioner is aware that his or her request for an authorization for a physician assisted death may be withdrawn at any time; e. the petitioner makes the request for authorization for a physician assisted death freely and voluntarily; and f. the petitioner is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the petitioner s to make. Evidence of Physician Proposed to Assist the Petitioner 12. On the exemption application, the petitioner must also file an affidavit from the physician who is proposed to be the physician who will assist the petitioner to use the exemption sought, who may be the petitioner s attending physician, the second physician or another physician, indicating: a. the manner, means, and proposed timeframe for the physician assisted death;
P a g e 5 b. whether the physician is willing to assist the petitioner in dying, if that act were authorized by court order; c. whether the physician believes that his or her providing assistance would be clearly consistent with the petitioner s wishes; d. whether the physician is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the petitioner s to make. General 13. Unless extended, the procedure described in this notice will be in place only until June 6, 2016. Christopher E. Hinkson Chief Justice February 25, 2016
Interim Guidance Physician-assisted Dying College of Physicians and Surgeons of British Columbia Preamble On February 6, 2015, the Supreme Court of Canada (SCC) in Carter v. Canada struck down the provisions in the Criminal Code prohibiting physician-assisted dying (PAD) (sections 241(b) and section 14). However, the SCC suspended the decision for a period of 12 months. On January 15, 2016 the SCC extended the suspension for an additional four months from February 6, 2016 to June 6, 2016. The SCC decision establishes PAD as a charter right 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 suffering that is intolerable to the individual. The decision allows both assisted suicide, where the patient is provided assistance in intentionally ending his or her own life, and voluntary euthanasia, where a physician directly administers a lethal dose of medication in accordance with the wishes of the patient. The SCC also stated that nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The SCC, in its decision to extend the suspension to June 6, 2016 also granted an exemption to the suspension. The exemption permits individuals who wish to seek PAD in accordance with the criteria established by the SCC in Carter to apply to the Supreme Court of British Columbia for approval relief during the four-month extension. On February 25, 2016 the Chief Justice of the Supreme Court of British Columbia posted the following notice for the benefit of those wishing to bring an application for an exemption from the Criminal Code prohibition against physician-assisted dying: Notice Regarding Applications for Exemption from the Criminal Code Prohibition Against Physician Assisted Death. Where the court grants an exemption for PAD, any direction provided by the court in evaluating and/or granting this exemption takes precedence over the College s interim guidance, found below. Registrants are expected to be aware of and comply with their legal, professional and ethical obligations and are encouraged to seek the guidance of legal counsel, or medical legal advice from the Canadian Medical Protective Association (CMPA). Registrants may also contact a member of registrar staff at the College to discuss professional and ethical obligations. The College recognizes that there may be federal and/or provincial legislation in the near future that will address PAD. In the interim, the College acknowledges that it is in the public interest and in the interest of registrants to establish a process for physicians to follow when PAD issues Interim Guidance Physician-assisted Dying February 6, 2016 (revised February 25, 2016) 1
arise. When legislation relating to PAD is enacted, the provisions of the legislation will take priority over the provisions of this document. Carter Decision In its decision, the SCC established certain requirements that must be met in order for a physician to assist a patient to die: A. The patient must be an adult. B. The patient must consent. The SCC used the phrase a competent adult person who clearly consents. PAD cannot be provided to patients who cannot provide consent. C. The patient must have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the patient. The SCC did not limit PAD only to patients who have a terminal illness. The term medical condition would include an illness, disease or disability. Nor is the patient required to undertake treatments that are not acceptable to the individual. Rights and Autonomy Patients have the right to make decisions about their bodily integrity (autonomy) and to have access to unbiased and accurate information about relevant medical issues and treatments. Physicians have an obligation to provide their patients with health information and health services in a non-discriminatory fashion and an obligation not to abandon their patients. Physicians have the right to decide whether or not to perform physician-assisted dying. Conscientious Objection Physicians may make a personal choice not to assess patients for and/or perform PAD, based on their values and beliefs. The College expects the physician to provide patients with enough information and assistance to allow them to make informed choices for themselves. This includes consulting with other experts on relevant medical facts and, when needed, competency assessments. Physicians who object to PAD on the basis of their values and beliefs are required to provide an effective transfer of care for their patients by advising patients that other physicians may be available to see them, suggesting the patient visit an alternate physician or service and, if authorized by the patient, transferring the medical records as required. Where needed, physicians must offer assistance to the patient and must not abandon the patient. While a physician is not required to make a formal referral on behalf of their patient, they do have a duty of care that must be continuous and non-discriminatory. Physicians should not discuss in detail their personal beliefs and should not pressure patients to disclose or justify their own beliefs. In all cases, physicians must practise within the confines of the legal system, and provide compassionate, non-judgemental care according to the CMA Code of Ethics. Interim Guidance Physician-assisted Dying February 6, 2016 (revised February 25, 2016) 2
Process The process respecting PAD involves the opinion of two physicians, the attending physician and the consulting physician, and the patient s consistent expression of a desire for PAD over a reasonable period of time. 1. Both the attending and consulting physician in a situation of physician-assisted dying must: a. have the appropriate competencies, qualifications, experience and training to render a diagnosis and prognosis of the patient's condition, together with the appropriate technical knowledge and competency to provide PAD in a manner that is respectful to the patient b. have a complete and full discussion about PAD with the patient; physicians are expected to provide patients with all the information required to make informed choices about treatment and to communicate the information in a manner that is easily understood by the patient 2. The attending and consulting physician must agree that the patient meets the criteria as set out by the SCC: a. the patient has a grievous medical condition b. the condition must not be remediable using treatment that the patient is willing to accept c. the patient s suffering must be intolerable to the patient Physicians must assess a patient s suitability for PAD against the above criteria. A request for PAD is contextual to the patient's medical condition, its natural history and prognosis, treatment options, and the risks and the benefits associated with each option. Both the attending and consulting physician are responsible to ensure that the patient understands such factors, and is able to communicate a reasoned decision based on that understanding. When it is unclear whether these criteria have been met, a psychiatric or a registered psychologist s consult is required to evaluate the patient s decision-making capacity (or limitations) in greater detail. 3. Both the attending and consulting physician must be licensed for independent practice in their respective Canadian jurisdictions, and at least one physician must be licensed in British Columbia. The attending and consulting physician must not be related to the patient. 4. The attending and consulting physician should be independent of each other (for example, not be in the same practice group), recognizing that in small, rural or remote communities that this may not be possible. 5. Either the attending physician or the consulting physician, but not both, may provide their opinion by videoconferencing provided that there is a physician in physical attendance with the patient. At least one of the attending or consulting physicians must meet with the patient in person. 6. The patient must be an adult and eligible for publicly funded health care services. 7. The patient must be competent and able to give free and informed consent. a. Both the attending physician and consulting physician must be satisfied that the patient is Interim Guidance Physician-assisted Dying February 6, 2016 (revised February 25, 2016) 3
i. mentally capable of making a free and informed decision at the time of the request and throughout the process, and ii. capable of giving free and informed consent to PAD. b. If either physician is unsure whether the patient has the capacity to consent, the patient must be referred to a physician with special expertise in capacity assessments, such as a psychiatrist, neurologist or geriatrician, for further capacity assessment. c. The patient must maintain mental capacity for PAD to proceed. If at any time during the progression of the patient's condition, the patient loses the mental capacity to rescind his or her decision, PAD ceases to be an option. d. PAD cannot be provided to patients who are not able to give consent including when consent is given by an alternate or substitute decision-maker, or through a personal advance directive. 8. The consent must be voluntarily given by the patient. a. Both the attending and consulting physician must be satisfied on reasonable grounds that i. the patient s decision to undergo PAD has been made freely, without coercion or undue influence from family members, health-care providers or others, ii. the patient has a clear and settled intention to end his or her life after making an informed decision, and iii. the patient has requested PAD himself or herself, thoughtfully and repeatedly in a free and informed manner. 9. The patient must be informed by the attending and consulting physician of the following and the information must be included in the patient s medical record with a copy provided to the patient: a. patient's diagnosis and prognosis b. feasible alternatives (including comfort care, hospice care and pain control) c. option to rescind the request for PAD at anytime d. risks of taking the prescribed medication e. probable outcome/result of taking the medication f. recommendation to seek legal advice on life insurance implications In addition, the following information also needs to be included in the patient s medical record: a. all written and oral requests for PAD and a summary of the discussion b. confirmation that, after the completion of all documentation the patient was offered the opportunity to rescind the request c. a note from the physician who prescribes/administers the medication that all the requirements have been met, including the steps taken and the medication prescribed Interim Guidance Physician-assisted Dying February 6, 2016 (revised February 25, 2016) 4
d. a copy of the medical certificate of death 10. The physicians must ensure that the patient has consistently expressed a desire for PAD over a reasonable period of time. What is a reasonable period of time will depend on the patient s medical condition and circumstances. In most situations, 15 days would be a reasonable period of time. 11. After the reasonable waiting period and following the completion of all documentation the patient is to be offered the opportunity to confirm or rescind the request. 12. The patient s decision to proceed with PAD requires a formal request which may be written by the patient or be oral and transcribed by another party. Both the attending and the consulting physician must obtain the written request from the patient. The request should confirm that the patient has given free and informed consent to PAD and that the requirements for PAD have been met. The written request must be dated, signed by the patient, and include the signature of a witness attesting to the identity of the patient. In both cases, the witness should not be: the attending or consulting physician; a relative; entitled to any portion of the estate; or an owner, operator, or employee of a health care facility where the patient is receiving treatment. 13. The medical certificate of death should indicate PAD arising out of the underlying grievous and irremediable medical condition. Approved by Board January 21, 2016 Effective February 6, 2016 Revised February 25, 2016 Interim Guidance Physician-assisted Dying February 6, 2016 (revised February 25, 2016) 5