Medical Assistance in Dying The Hamilton Law Association 15 th Annual Estates & Trusts Seminar Feb. 9 th, 2017 Anju Joshi, Dept. of Health, Aging and Society, McMaster University Catherine A. Olsiak, Simpson Wigle LAW LLP Thank you to Paul Demarco, Student-at-Law, Simpson Wigle Law LLP for his assistance in preparing this material *The information, opinions, and other materials contained herein are provided as of the date of the presentation hereof and are subject to change without notice. SimpsonWigle LAW LLP and McMaster University do not make any representation or warranty, express or implied, in, and takes no responsibility for any errors and omissions which may be contained herein or accepts any liability whatsoever for any loss arising from any use of or reliance on the information, opinions, and other materials contained herein. Federal Legislation An Act to amend the Criminal Code and to make related amendments to other acts (medical assistance in dying) S.C. 2016 c.3 Royal Assent June 17 th, 2016 Seminar 1
Context: PREAMBLE TO THE ACT Preamble Whereas the Parliament of Canada recognizes the autonomy of persons who have a grievous and irremediable medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in dying; Seminar 2
Preamble Whereas robust safeguards, reflecting the irrevocable nature of ending a life, are essential to prevent errors and abuse in the provision of medical assistance in dying; Preamble Whereas it is important to affirm the inherent and equal value of every person s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled; Seminar 3
Preamble Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives; Preamble Whereas persons who avail themselves of medical assistance in dying should be able to do so without adverse legal consequences for their families including the loss of eligibility for benefits that would result from their death; Seminar 4
Preamble Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities Preamble Permitting access to medical assistance in dying for competent adults whose deaths are reasonably foreseeable strikes appropriate balance between autonomy and protection of vulnerable persons Seminar 5
Preamble And whereas it is desirable to have a consistent approach to medical assistance in dying across Canada recognizing the province s jurisdiction over various matters related to medical assistance in dying; Preamble And whereas the Government of Canada has committed to develop non-legislative measures that would support the improvement of a full range of options namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition; Seminar 6
Preamble Takeaways from Preamble: MAID regulatory framework to evolve among various levels of government and professional bodies Must always balance patient autonomy with (perceived or real) vulnerabilities Non-legislative measures will play a role in carrying out Parliament s intent, beyond the four corners of the Act Context: ELIGIBILITY FOR MAID Seminar 7
Eligibility Criteria Eligible for health services in Canada 18 years of age and capable of making decisions with respect to their health Grievous and irremediable medical condition where death is reasonably foreseeable Request for MAID is voluntary, and made without undue influence Patient must provide informed consent, and must have been notified about alternative options (palliative care, etc.) MAID Other provisions of Note Independent Witnesses cannot be a beneficiary of a will or financial plan of requestor Independence of Practitioners cannot be a beneficiary of a will or financial plan of requestor Seminar 8
Related Amendments to Federal Acts Pension Act Corrections and Conditional Release Act Canadian Forces Members and Veterans Re-establishment and Compensation Act Independent Review Minister of Justice and Minister of Health to conduct reviews of issues relating to requests by mature minors for medical assistance in dying; to advance requests and to requests where mental illness is the sole underlying medical condition Reviews will be conducted by Canadian Council of Academies (not-for-profit organization) Seminar 9
Provincial Legislation Bill 84 Legislative Amendments Medical Assistance in Dying Statute Law Amendment Act, 2016 First Reading December 7, 2016 Bill 84 Legislative Amendments Medical Assistance in Dying Statute Law Amendment Act, 2016 First Reading December 7, 2016 The Coroner s Act Excellent Care of All Act, 2010 Freedom of Information and Protection of Privacy Act Municipal Freedom of Information and Protection of Privacy Act Vital Statistics Act Workplace Safety and Insurance Act, 1997 Seminar 10
Ontario What else is happening? Ministry of Health and Long- Term Care Clinician Referral Service MAID covered by OHIP Context: THE HUMAN FACTOR Seminar 11
Some Statistics MAID-attributed deaths 1: Ontario: 87 Alberta: 23 Rejections: 23 British Columbia: 66 Manitoba: 12 Requests: 60 Saskatchewan: <5 1 Perkel, C.; About 200 Canadians have had a physician-assisted death since June; Toronto Star; October 6, 2016. Assisted Dying Number of people who have accessed MAID in Canada characteristics of these individuals Statistics difficult to obtain as it appears Federal Government is not tracking the numbers Seminar 12
Sources: Media reports and Dying with Dignity Organization 744 People in Canada have received Medically Assisted Death since the practice became legal across Canada (June 17-Dec. 16) Most suffered from conditions such as neurological diseases, including MS or amyotrophic lateral sclerosis. Information on gender, age and where procedure performed not made available. Source: Avis Favaro, CTV News Some Statistics Characteristics of MAID instances in Alberta 2 Average age of patient: 67 Most cited conditions: Cancer Multiple Sclerosis (MS) Amyotrophic Lateral Sclerosis (ALS) Effective referrals from faith-based hospitals: 2 2 Perkel, C.; About 200 Canadians have had a physician-assisted death since June; Toronto Star; October 6, 2016. Seminar 13
Oregon Statistics: Heightened Risk?? In 2015 of the 132 DWDA (Death with Dignity Act) deaths during 2015, most patients (78%) were 65 or older. People over 80 formed 30% of the group of patients whose requests were refused and 13% of those whose request were granted and carried out Battin, van der Heide, Ganzini,van der Wal, Onwuteaka-Philipsen (2007) Legal Physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact of patients in vulnerable groups, Law, Ethics and Medicine, Journal of Medical Ethics, 33: 591-597. Quotes on Personhood Personhood reflects many different aspects of the person, encompassing those characteristics, attributes and strengths which make each individual different from another and unique as a human being. Personhood includes our values, spirituality, habits, abilities, hopes, fears and preferences welded together through years of living. (Buzzell, Personhood Teaching Package, ECHA, 1993, p.6) Seminar 14
Quotes In order to know how persons ought to be treated we must know what makes them persons and how, as persons, they may be harmed. (Harrison, 1990a, p. 77) It is much more important to know what sort of person has a disease than what sort of a disease a person has. (Osler, date unknown) Ageism The stereotyping of, and discrimination against, individuals or groups because of their age (WHO, 2012) One-in-five (21%) Canadians say older Canadians are a burden on society (Revera Report on Ageism, 2015) Implication of language (Silver Tsunami) Seminar 15
Abuse Several forms of abuse Up to 10% of older Canadians experience a form of abuse, it s estimated that only one in five incidents of elder abuse are reported Vulnerability Ageism Social Isolation Abuse Biases about quality of life Dependence on Family members for emotional, financial or functional support Older adults who experience undue influence or pressure and physicians lacking training to assess this Seminar 16
Concerns There is concern that people who are vulnerable or who find themselves in a situation of vulnerability may be pressured consciously or unconsciously to opt for medical assistant in dying either because of financial circumstances or because the medical help that they need is not necessarily available Trudo Lemmens, Ethicist and UofT law professor, in CTV News report. Euthanasia in the Netherlands is on a slippery slope and that euthanasia is used to solve other problems than putting an end to unbearable suffering. Victor Lamme, Professor of Cognitive Science, in Volkskrant Wanting to Die May Sarton Sometimes I want to die. To be done with it all At last, Never make my bed again Never answer another letter Or water the plants, None of those efforts I must make Every day To keep alive. Seminar 17
Wanting to die continued But then I do not want to die. The leaves are turning And I must see The scarlet and gold One more time, A single yellow leaf Tumbling through The sunlit air One last time. Some Statistics Public Opinion following Carter (2015) 3 Support for MAID generally: 85% Support for advance directive where patient has already been diagnosed with a qualifying illness: 80% Support for advance directives where patient has not yet been diagnosed with a qualifying illness: 71% 3 Poll: Dying with Dignity Canada: February 2016 ; Ipsos Public Affairs; ISIN code FR0000073298, Reuters ISOS.PA, Bloomberg IPS:FP Seminar 18
Way forward Awareness of own biases and stereotypes A vulnerability assessment as suggested by the Advocacy Centre for the Elderly Address Feelings of lack of Purpose, burden, isolation, loneliness of older adults Cultural relevance collectivist vs individualistic world view ESTATES PRACTICE AND MAID Seminar 19
Revisiting the Public Opinion Poll about Advance Requests Issue of Advanced Consent for MAID (Dying with Dignity Canada Ipsos Poll ) 80% - support assisted death for competent patients at time of request but not competent at time request is carried out; as long as diagnosis of grievous and irremediable medical condition when request made Revisiting the Public Opinion Poll about Advance Requests Issue of Advanced Consent for MAID (Dying with Dignity Canada Ipsos Poll ) 82% - support assisted death for competent patients at time of request but not competent at time request is carried out; shorter period between request and assisted death (eg. Request Friday to schedule assisted death for Monday, person slips into a coma over the weekend) Seminar 20
Revisiting the Public Opinion Poll about Advance Requests Issue of Advanced Consent for MAID (Dying with Dignity Canada Ipsos Poll ) 71% - support assisted death for competent patients at time of request even if they do not have a grievous and irremediable medical condition Revisiting the Public Opinion Poll about Advance Requests Issue of Advanced Consent for MAID (Dying with Dignity Canada Ipsos Poll ) Choice between 2 distinct options -64% - support assisted death even if the patient is not competent at the time the request is to be carried out vs. 36% who said patient should be competent Seminar 21
Advance Requests What does this actually mean? Federal vs. Provincial Legislative Framework Opens the discussion to revisit the intersection of law, healthcare delivery, organizations and regulatory bodies Let s Take a Step Back. Law Commission of Ontario Health Care Consent, Advance Care Planning, and Goals of Care Practice Tools: The Challenge to Get it Right December, 2016 Prerequisite similarly as when informed consent is obtained, person must be capable to enter into a discussion regarding advance care planning; Advance Care Planning (ACP) no real definition interpreted differently in different jurisdictions A patient may express wishes that reflect their feelings or initial thoughts about potential treatments, should they one day need such a treatment. Consequently, wishes are not decisions, but rather they are speculative statements Seminar 22
Let s Take a Step Back. Cont d. Law Commission of Ontario Health Care Consent, Advance Care Planning, and Goals of Care Practice Tools: The Challenge to Get it Right December, 2016 ACP wishes are not consents Even when wishes are known, the challenge is contextualizing it to the decision at hand which needs to be made Be careful of the practice tools out there! What is the Role of the Estate Practitioner regarding Advance Requests? Educate the client about the current federal legislation Eligibility does NOT include consent by a substitute decision maker; consent must be given by a competent adult Educate the client about the current legal framework, and work within the framework Caution the client about google lawyer and internet forms and tools on the internet Seminar 23
Power of Attorney for Personal Care Any Opportunities? Sample POA Clauses Medically Assisted Death I have conveyed to my family and my attorney(s) my values, beliefs and wishes about the importance of being able to exercise my right to a dignified death and to access medically assisted death if I am suffering from a physical or mental condition which prevents me from living a life with any quality whatsoever as I personally have expressed quality to be from time to time. An example of such a condition would be advanced ALS. Accordingly, if it is lawful to do so, and if my condition fits the legislative criteria to enable me to access medically assisted death, I authorize and direct my attorney to make such application on my behalf. I give this authority and direction to my attorney notwithstanding that such attorney may be a beneficiary of my estate and/or any life insurance policies or registered plans. Age of Client -? Seminar 24
Sample POA Clauses Medically Assisted Death Provision Currently of no legal effect with respect to MAID However, may be of future assistance in providing evidence of person s wishes and beliefs in those circumstances where a request for assisted death is under review In the presenter s view, a plausible scenario would be where there is an extremely short period of incapacity (a few days) between the Date of the Request by the Competent Requestor and the Date of the Scheduled assisted death; Sample POA Clauses For clarity with respect to the application of the paragraph above, I instruct my attorneys to consider experimental treatment and/or clinical trials, if traditionally accepted medical treatments are unsuccessful, and accordingly the reference in the above paragraph to no reasonable expectation of hope or recovery refers to the exhaustion of, or unavailability of, non-traditional and/or experimental treatments. Age of Client -? Seminar 25
Lessons for Practice in the Consideration of Advance Requests Continue vigilance in releasing Personal Care Powers of Attorney; educating clients regarding appropriate use / when it comes into effect; Continue to practise what we know within the current legislative framework Wait and See - Results of the independent reviews will provide further information and direction Does anything change for Estate Practitioners?.or is this an opportunity to revisit our current practice? Seminar 26
Friedberg et al. v. Korn, 2013 ONSC 960 Issues for Consideration End of life clause in personal care power of attorney What is heroic? What is artificial? Presumption that clause reflected grantor s prior capable wish Presumption can be rebutted if sufficient or compelling evidence that grantor did not know or approve contents Finding Presumption was re-butted; Lessons for practice Ensure client is provided advice within the legislative framework be careful not to overstep into a medical/procedural framework; Canvass the client s values, wishes, beliefs ; Challenges for practice Will your client pay you your hourly rate to have this discussion? Other Future Legal Issues? Treatment vs. not a Treatment? Determination of Capacity? (See College of Physicians and Surgeons Guidelines reference to Health Care Consent Act) Will there be a venue for a hearing or appeal relative to process? Seminar 27
In Summary MAID is a new and evolving frontier The Estate Practitioner s role is to ensure the client understands the existing legal framework and the legal choices available within this framework Autonomy and Choice- Papering Client Discussions/Decisions (Wishes, Values, Beliefs) Protection of the vulnerable - Through advocacy and meeting solicitor obligations when obtaining instructions References / Resources Legislation Federal An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), SC 2016, c. 3 Criminal Code of Canada, RSC 1985, c. C-46 Provincial Bill 84, Medical Assistance in Dying Statute Law Amendment Act, 2016 Coroners Act, RSO 1990, c. C.37 Excellent Care for All Act, 2010, SO 2010, c.14 Freedom of Information and Protection of Privacy Act, RSO 1990 c. F.31 Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c. M.56 Vital Statistics Act, RSO 1990, c. V.4 Workplace Safety and Insurance Act, 1997, SO 1997, c. 16 Sched. A Friedberg et al. v Korn, 2013 ONSC 960 Decisions Policy Papers and Guidelines Law Commission of Ontario Health Care Consent, Advance Care Planning, and goals of Care practice Tools: the Challenge to Get it Right Improving the Last Stages of Life December 2016; Prepared by Judith A. Wahl, Mary Jane Dykeman, Tara Walton Medical Assistance in Dying, Policy Statement #4-16; College of Physicians and Surgeons of Ontario, June 2016 Guidance on Nurses Roles in Medical Assistance in Dying; College of Nurses of Ontario, July 29, 2016 Medical Assistance in Dying: Guidance to Pharmacists and Pharmacy Technicians; Ontario College of Pharmacists, June 27, 2016 Dying with Dignity Canada February 2016 Seminar 28
References ( Human Factor section) Battin, van der Heide, Ganzini,van der Wal, Onwuteaka-Philipsen (2007) Legal Physician-asssisted dying in Oregon and the Netherlands: evidence concerning the impact of patients in vulnerable groups, Law, Ethics and Medicine, Journal of Medical Ethics, 33: 591-597. Buzzell, M., (1993). The Concept of Personhood. In Personhood: A Teaching Package (4-15). by Buzzell, M., Meredith, S., Monna, K., Sergeant, D., and Ritchie, L., Hamilton: Educational Centre for Aging and Health, McMaster University. Harrrison, C. (1990). Personhood, Dementia and the Integrity of a Life. Canadian Journal on Aging, 12 (4), 428-440. Osler, W. São José, J.M. (2016) Preserving Dignity in Later Life, Canadian Journal on Aging, 35 (33) 332-347. Sarton, May (1994) Wanting to Die, Coming into Eighty: New Poems, W.W. Norton and Company Inc. Seminar 29