Originally published June 2018 / Revised October 2019
Despite current federal1 and Québec2 legislation that makes medical assistance in dying (MAID) legal, there continues to be uncertainty among some physicians about their rights and obligations, and the processes to be followed in this area. Indeed, in the first 18 months following the June 2016 amendments to the relevant sections of Criminal Code of Canada, the CMPA received over one thousand enquiries from members about this developing issue.
The uncertainty felt by physicians is due, in part, to a lack of clarity surrounding the definition of certain requirements for MAID, such as “reasonably foreseeable death.” There is also a potential for the law to evolve as it relates to conscientious objection, advanced directives, mature minors, and mental health diagnoses, among other aspects. The CMPA continues to monitor decisions and guidance by courts, governments, regulatory authorities (Colleges), and medical associations and federations as new issues and concerns emerge.
This article identifies issues physicians may encounter when asked to provide MAID. In addition to carefully considering and applying the eligibility criteria and safeguards in the Criminal Code, physicians involved in MAID must comply with provincial and territorial laws and regulations, reporting requirements, as well as College and hospital policies. Physicians who have provided MAID on several occasions need to ensure they continue to have a thorough approach to assessing each request for MAID based on the individual circumstances of their patient. Physicians are encouraged to call the CMPA for case-specific advice, including on the issues discussed below.
Case example: Patient with ALS requests MAID
A 45-year-old patient with ALS requests MAID. She lives in a rural community where very few physicians are comfortable being involved in MAID.
She is not yet at the “end of life”—her treating physicians believe she could live another four years. However, she is concerned she could choke on her saliva and die at any time. She is not currently experiencing intolerable physical suffering, but is suffering severe psychological and emotional distress. She has a history of mental health issues.
Although her husband supports her request, the patient’s daughter opposes her mother’s choice.
Eligibility and safeguards
The case study illustrates some of the challenges physicians may face in determining eligibility for MAID. The law currently requires that the patient make a voluntary request, and be a mentally capable (competent) adult, eligible for government-funded health services, able to give informed consent, and suffering from a “grievous and irremediable medical condition.”3
There continues to be uncertainty in applying some of these criteria in specific cases. For example, does the ALS patient suffer from a “grievous and irremediable medical condition” and has her natural death become “reasonably foreseeable”? These terms are not clearly defined in the Criminal Code,4 nor do they reflect language used by healthcare practitioners in their clinical work.
The court in Québec recently found the requirement in the Criminal Code that death be reasonably foreseeable and the end-of-life requirement in the Québec legislation to be unconstitutional.5 The court gave the federal and Québec governments until March 2020 to amend their legislation. Until that time, physicians should continue to apply the requirements in the legislation as currently worded.
In British Columbia, plaintiffs launched a court challenge to the requirement in the Criminal Code that death be reasonably foreseeable. However, the challenge was discontinued by the plaintiffs, and the court did not make a determination about the constitutionality of the reasonably foreseeable death criteria.6
The case study also highlights challenges that can arise when family members disagree with the patient’s request. Only patients can request and consent to MAID, not substitute decision-makers. To help minimize the risk of difficulties arising after a patient’s death, physicians should—to the extent possible—encourage patients to involve their family in MAID discussions, with the understanding that a request for MAID is the patient’s decision.
Physician advisors at the CMPA stress that conversations with patients and their families about MAID are among the most important and challenging clinical conversations. As such, careful advance planning and preparation should be put into these conversations. In addition to ensuring the criteria and safeguards are met, the physician advisors suggest the preparation include considering whether the healthcare team, the patient, and those around the patient have the necessary resources and supports.
Capacity to consent
Given this patient’s mental health history, consideration must be given to her capacity to consent to MAID. The patient must be capable of consenting at the time of the request and immediately before MAID is provided. For this reason, “advance requests” for assisted dying are currently not permitted. The government continues to consider whether eligibility for MAID should be expanded to allow advance requests, as well as requests by mature minors and where mental illness is the sole underlying condition. 7
The CMPA has also heard from physicians about issues with the application of the required 10-day reflection period, which can only be shortened if two practitioners agree that the person’s death, or the loss of their capacity to consent, is imminent.
Access to MAID
The patient in the case study lives in a rural community and may experience challenges finding a healthcare professional willing to provide MAID. That said, some healthcare facilities have policies and resources to assist healthcare providers and identify physicians who have a special interest and experience in MAID. Other healthcare facilities have not yet implemented policies, which can present challenges for physicians practising in those facilities.
Challenges can also arise, particularly in small communities, in finding two practitioners independent from one another. To address this issue, some regions have referral services to facilitate connecting patients with providers. Groups have also organized to assist patients finding volunteers willing to act as independent witnesses.
The emotional impact of MAID among physicians
Some reports suggest that the emotional toll of providing this service is causing some physicians to reconsider offering MAID.8 Despite the emotional strain, many members calling the CMPA for advice on participating in MAID do so because they feel they are meeting an important need in this select patient group.
Some physicians object to MAID on moral or religious grounds. While the law is clear that physicians have no obligation to provide MAID, the CMPA continues to encounter questions about providing an effective referral for patients seeking MAID.
Most regulatory authorities (Colleges) have policies or guidelines that attempt to reconcile the Charter rights of patients and physicians. These guidelines differ from one jurisdiction to another, including with respect to what is required by way of a referral for a conscientiously objecting physician.
The Ontario Court of Appeal confirmed the constitutionality of CPSO policies requiring conscientiously objecting physicians to provide effective referrals to patients seeking MAID.9 The CMPA is also aware that some faith-based hospitals have decided not to provide MAID in their facilities and are instead transferring or referring to other facilities patients who request an assisted death.
Recognizing the challenge of balancing rights, conscientiously objecting physicians should comply with their College’s requirements, while respectfully and appropriately following their personal views.
Physicians receiving written requests for MAID may be required to file a report with Health Canada, or a designated recipient, even if they are not involved in assessing the patient or delivering MAID. The patient’s request must be more than an inquiry or a request for information, but does not have to be in the formal format required by the Criminal Code to trigger the reporting obligation (e.g. properly signed, dated, and witnessed). For example, an email or text message request for MAID from a patient may require a physician to report to Health Canada.
In addition to reporting written requests for MAID to Health Canada, physicians may also be required to report information about providing MAID or MAID deaths, as determined by provincial or territorial, and federal regulations. This may include reporting to the coroner or medical examiner, Health Canada (or designated recipient), hospital or health authority, or other entities (e.g. Commission on end-of-life care in Québec). The information to be reported, the organization to which the report is made, and the timeline for reporting depends on the case and the province or territory. Physicians are encouraged to consult Health Canada’s website10 and provincial or territorial MAID policies and regulations for further details.
Any physicians with questions or seeking further information about reporting requirements should contact the CMPA.
Unlike most other healthcare services, MAID is governed by criminal law. Failure to ensure that the safeguards and eligibility criteria, as well as the reporting requirements for MAID, are met could result in criminal charges and imprisonment of up to 14 years, in addition to College sanctions, civil legal actions, or both.
When considering a request for MAID
- Know your obligations under the federal and provincial and territorial laws and regulations, and College and hospital policies, in particular the criteria and safeguards required by the Criminal Code. You may contact the CMPA for medical-legal advice concerning MAID.
- Assess each request on its own merits based on the facts and circumstances of the case.
- Document carefully in the medical record the processes and discussions around MAID.
- While respectfully and appropriately following your personal views, comply with College expectations regarding conscientious objections.
- Consider consulting with colleagues for support.
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016)
- An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001
- Criminal Code, RSC, 1985, c. C-46, ss 241.2(1)
- Government of Canada [Internet]. Legislative Background: Medical Assistance in Dying (Bill C-14) [Internet]. Ottawa (ON): Government of Canada, Department of Justice; 2016 [cited 2018 Jan 19]. 55 p. Available from: http://www.justice.gc.ca/eng/rp-pr/other-autre/ad-am/ad-am.pdf; Government of Canada [Internet]. Legislative Background: Medical Assistance in Dying (Bill C-14) –Addendum. Ottawa (ON): Department of Justice (Canada); 2016 July 15 [cited 2018 Jan 19]. Available from: http://www.justice.gc.ca/eng/rp-pr/other-autre/addend/index.html
- Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
- British Columbia Civil Liberties Association, [Internet]. RELEASE: B.C. Supreme Court adjourns B.C. Civil Liberties Association’s assisted dying case. September 18, 2019 [cited 2019 Sep 30]. Available from: https://bccla.org/news/2019/09/release-b-c-supreme-court-adjourns-b-c-civil-liberties-associations-assisted-dying-case/
- Medical assistance in dying [Internet]. Ottawa (ON): Council of Canadian Academies [cited 2018 Jan 19]. Available from: http://www.scienceadvice.ca/en/assessments/in-progress/medical-assistance-dying.aspx
- Opatrny L, Bouthillier M. Decoding conscientious objection in medical aid in dying, First results from a unique study. Le spécialiste [Internet]. Dec 2017; 19(4): 36-40. Available from: https://www.fmsq.org/en/mediatheque/editions/le-specialiste
- Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII)
- Government of Canada [Internet]. Reporting requirements for medical assistance in dying. 2018 [cited 2018 Oct 24]. Available from: https://www.canada.ca/en/health-canada/services/medical-assistance-dying/reporting-requirements.html#a5]