Advice to the Profession
The College of Physicians & Surgeons of Alberta (CPSA) provides advice to the profession to support physicians in implementing the CPSA Standards of Practice. This advice does not define a standard of practice, nor should it be interpreted as legal advice.
Medical Assistance in Dying (Physician-Assisted Death)
- On April 14, 2016 the Government of Canada introduced a bill to amend the Criminal Code to allow “medical assistance in dying” (read the bill here). While the bill is not yet law, it identifies the intent of the federal government with respect to legislating medical assistance in dying. The College is aligning its Advice for the Profession with this terminology, and will soon post an update to this document (below).
- Related standards of practice Informed Consent and Moral or Religious Beliefs Affecting Medical Care are currently under review. Consultation took place January 7 – March 7, 2016. Council will consider consultation feedback at its May 2016 meeting, and any approved amendments will take effect in July 2016.
- Have questions about PAD that aren’t answered here? Check out the Alberta Health Services website.
- Before proceeding with PAD, the College recommends physicians consult with the Canadian Medical Protective Association (CMPA).
Published: December 2015
Revised: February 2016, March 2016
Related standards of practice: Informed Consent, Moral or Religious Beliefs Affecting Medical Care, Assessing the Mental Capacity of a Patient
In its February 6, 2015 ruling Carter v. Canada, the Supreme Court of Canada (SCC) unanimously declared unconstitutional the Criminal Code prohibitions on physician-assisted dying as violating the individual’s right to life, liberty and security of the person (s. 7). Declared invalid were both Section 241(b) of the Criminal Code that states everyone who aids and/or abets a person in committing suicide commits an indictable offence, and section 14 says no person may consent to death being inflicted on them.
The SCC decision voids the Criminal Code provision on assisted suicide insofar as it prohibits physician-assisted death (PAD) 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 decision focuses on “physician-assisted” death. It is not clear how the decision will affect other members of the care team, such as a pharmacist dispensing a lethal medication or a nurse participating as a member of the team. The decision allows both assisted suicide, where the patient is provided assistance in intentionally ending his/her own life (e.g., a patient with ALS who is provided with a lethal dose of medication for self-administration), and euthanasia, where a physician directly administers a lethal dose of medication (or equivalent) in accordance with the wishes of the patient.
The SCC decision does not establish a regulatory regime or safeguards. This work has been left to the federal provincial/territorial governments and/or medical regulators who have until June 2016 to develop legislation and/or policy to regulate PAD, should they choose to do so. Individuals seeking PAD in the interim can apply to a superior court in their home province for an individual exemption, according to the criteria set out in the SCC decision. Several levels of government have suggested action is forthcoming, but in the interim, significant public debate has ensued. Gaps that must be addressed include, but are not limited to, a definition of “grievous and irremediable medical condition,” challenges faced by allied health professionals, reporting requirements and insurance protection for patients.
While it is not the role of the College to adjudicate such debates or fill the void left in the legislative environment, the College has a duty to advise the profession of its expectations of members. In doing so we recognize that we do not have the answers to all of the issues arising from the Carter decision. We have used our best judgment and have tended to take a more conservative or narrower interpretation in order to:
- ensure the protection of patients;
- maintain the trust of physicians and the public we serve; and
- provide safe limits for physicians who may provide this service.
For example, the Carter decision limits the availability of PAD to a competent adult. This raises questions as to both the definition of “adult” and the application. Must a person making the request be competent throughout the process, rendering a personal directive unacceptable?
The College’s position on these issues is that one must be an adult, competent throughout the process and able to rescind consent at any time, thereby excluding personal directives. Legal precedent recognizes mature minors as adults in their ability to consent; the College recommends physicians take a careful and conservative approach to mature minors.
Given the significance of a decision about PAD, there are robust, specific requirements for obtaining and documenting an individual’s consent. The College’s advice is based on an environmental scan of other jurisdictions that currently allow PAD.
The principles guiding the College’s advice on PAD are:
- The College has an obligation to serve and protect the public interest.
- Physicians have a professional belief and value to provide respectful care for patients with diseases that cannot be cured, enshrined in precept 3 of the Code of Ethics: “Provide for appropriate care for your patient, even when cure is no longer possible, including physical comfort and spiritual and psychosocial support.”
- Physicians are expected to practise medicine in keeping with their level of clinical competence to ensure they safely deliver quality health care.
- Physicians have an obligation not to abandon their patients.
- Physicians have an obligation to provide their patients with health information, referrals and health services in an unbiased and respectful manner to enable their patients to make well-informed decisions.
- Physicians’ right to freedom of conscience should be respected.
- Any conscientious objections a physician may have must not impede the right of patients to receive unbiased information about and access to legally permissible and available health services.
- Physicians should err on the side of caution where legislative uncertainty exists.
The College recognizes these principles may come into conflict.
- Access to holistic care and palliative care – Chronic disease management and palliative care by their nature and purpose are to ameliorate symptoms and optimize functioning. As noted above, the Code of Ethics states “physicians are required to provide appropriate care for patients, even when cure is no longer possible, including physical comfort and spiritual and psychosocial support.”
- Patient request for PAD – Upon receiving a patient’s request for PAD, the physician must 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, including diagnosis, the natural history and prognosis of the medical condition, treatment options and the associated risks and benefits, and to communicate the information in a way that is reasonably likely to be understood by the patient. The physician’s role also involves seeking to understand the patient’s circumstances, perspective and reason for the request; counseling the patient on treatment options; and, at the patient’s discretion, disclosure to family and other supporting individuals. A patient’s decision regarding disclosure should be respected on the basis of confidentiality. For many who seek this option, a timely discussion of all end-of-life issues will be necessary. For others – such as those with a chronic, but non-terminal condition – a longer period of time may be appropriate to explore the patient’s personal values, concerns and end-of-life issues.The physician should ensure that an AHS Goals of Care Designation (GCD) order is completed after the discussion with the patient, and that the GCD aligns with the patient’s request for PAD. The GCD will alert any emergency personnel responding to a patient distress call of the patient’s wishes not to be resuscitated or transported to hospital should PAD be provided in the community.
- Competent adult patient – The SCC decision applies to competent adults. Legal precedent recognizes mature minors as adults in their ability to consent; the College recommends physicians take a careful and conservative approach to mature minors. PAD cannot be provided to patients who lack the capacity to make the decision, including when consent can only be provided by an alternate decision maker, is known by patient wishes or is provided through a personal directive. Two physicians (the accountable physician and a second physician) are required to independently document that the patient is fully informed, understands the information given, appreciates the foreseeable consequences of the decision and is able to communicate a decision based on that understanding. When it is unclear whether these criteria have been met, a psychiatric/psychological consult is required to examine the patient’s decision-making capacity (or limitations) in greater detail.
- Accountable physician – A physician offering PAD as an option must have the appropriate qualifications and training to render a diagnosis and prognosis of the patient’s condition, assess the patient’s decision-making capacity, and have the technical knowledge and technical competence to provide PAD in a manner that is respectful of the patient’s context and wishes. The physician must be willing and able to collaborate with others in providing such care. Before proceeding with PAD, the College recommends physicians consult with the Canadian Medical Protective Association (CMPA).
- Witnessed documentation – A patient’s decision to proceed requires formal documentation, which may be oral and transcribed by another party, or written by the patient. The written request must be dated, signed by the patient and include the signature of two witnesses. The role of the witnesses is to confirm the identity of the patient requesting PAD, attest to the patient’s apparent understanding of the request being made and affirm the patient is acting voluntarily free of duress or coercion. One of these witnesses must be someone who is not: a relative; entitled to any portion of the estate; an owner, operator, or employee of a health care facility where the patient is receiving treatment; or the attending physician.
- Medical opinion –While the SCC decision acknowledges the right of a competent adult to identify intolerable suffering, the physician’s role is to determine from a medical perspective whether or not the condition is “grievous and irremediable” (i.e., impossible to cure or put right). Making this determination will involve counseling the patient about other options for treatment and care. In some situations, a physician may offer the opinion the patient does not suffer from a grievous and irremediable condition. Where the patient and physician disagree, other resources may assist in resolving differences, for example an ethics consultation or a conflict resolution process. A confict resolution resource is available from the Royal College of Physicians & Surgeons of Canada at http://www.royalcollege.ca/portal/page/portal/rc/resources/bioethics/primers/conflict_resolution. The physician may also wish to contact the College for advice.
- Second medical opinion – A second physician is required to provide a medical opinion and to confirm the patient is a competent adult, has a grievous and irremediable medical condition and is making an informed and voluntary decision.
- Referral for psychiatric/psychological assessment – If the physician has reason to believe the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired capacity, the patient must be referred for assessment and possible treatment. While chronic depression or other mental illness may itself represent a grievous and irremediable condition, the additional assessment is necessary to ensure the illness itself does not impair the patient’s capacity to make an informed decision. PAD should not proceed if the patient’s capacity is impaired.
- Period of reflection – In most cases, a period of reflection should follow the initial request, with the length of time proportional to the urgency of the patient’s circumstances. For a patients with a non-terminal and slowly progressive condition, a reflective period of 14 days is recommended If, after reflection, the patient wishes to proceed, the physician must review all aspects of the PAD process with the patient and remind the patient of his/her opportunity to rescind the request at any time.
- Willing pharmacist – A physician writing a prescription for a drug protocol to hasten death must affirm with a pharmacist his/her willingness to dispense. The pharmacist will require a copy of the court-ordered exemption authorizing physician-assisted death before dispensing to the physician. The physician and pharmacist must together:
- determine the appropriateness of the prescribed drug protocol (adjusting dosages if necessary) and backup medication(s);
- discuss issues related to medication counseling for the patient;
- make arrangements for release of the medication(s) to the physician; and
- finally, arrange a plan for the physician to return any unused medication(s) to the pharmacist.
- Ongoing capacity – A patient must maintain decision-making capacity for PAD to proceed. If at any time during the progression of a patient’s condition, the patient loses the capacity to understand information and appreciate the foreseeable consequences of his/her decision, PAD ceases to be an option. The requirement for ongoing capacity is the primary reason for not accepting personal directives as sufficient for PAD to proceed.
- Required information – The following must be communicated to the patient and documented in the patient record, with a copy provided to the patient:
- patient’s diagnosis and prognosis;
- other treatment options (including but not limited to comfort care, hospice care, and pain control);
- opportunity to rescind the request for PAD at any time;
- risks of taking the prescribed life-ending medication;
- probable consequences of taking the prescribed life-ending medication;
- offer by the physician to be present during the administration of PAD; and
- recommendation to seek legal opinion on life insurance implications.
- Individual medical record – The following must be documented on the patient’s medical record:
- all written and oral requests made by the patient for PAD;
- physician’s diagnosis, prognosis and statement that the patient is competent and is making an informed and voluntary decision;
- second medical opinion, including diagnosis, prognosis and statement that the patient is competent and is making an informed and voluntary decision;
- if performed, a report of the outcomes of the psychiatric/psychological assessment and treatment, including counseling;
- following the period of reflection (when applicable) and completion of all required documentation, the physician’s reminder to the patient of his/her opportunity to rescind the request and the patient’s final consent; and
- a note by the physician stating that all of the requirements have been met, indicating the steps taken and the medication prescribed and administered.
- Notification of death to the Office of the Chief Medical Examiner – PAD must be reported to the Medical Examiner. Physicians are advised to report PAD as “unclassified” and describe the PAD process that was followed. The Medical Examiner is responsible for identifying the manner of death on the death certificate.
- Notification of death to an oversight body – The CPSA believes a provincial multi-disciplinary committee should receive and review all PADs, as in other jurisdictions. There is no such committee in Alberta at the present time.
- Conscientious objection – Physicians may decline to provide PAD if doing so would violate their freedom of conscience. Paragraph 132 of the Carter decision says, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying,” and further, “we underline that the Charter rights of patients and physicians will need to be reconciled.” Conscientious objection is addressed in the CPSA standard of practice Moral or Religious Beliefs Affecting Medical Care. A physician who declines to provide PAD must not abandon a patient who makes this request; the physician has a duty to treat the patient with dignity and respect. The physician is expected to provide sufficient information and resources to enable the patient to make his/her own informed choice and access all options for care, even if providing such information conflicts with the physician’s moral or religious beliefs. This currently means arranging timely access to another physician or resource that will provide accurate information about all available medical options. Physicians must not provide false, misleading, intentionally confusing, coercive or materially incomplete information, and the physician’s communication and behaviour must not be demeaning to the patient or to the patient’s beliefs, lifestyle choices or values. The obligation to inform patients may be met by delegating this communication to another competent individual for whom the physician is responsible.
- Complaints arising – If a PAD-related complaint is submitted to the College, the College will manage the complaint as it does all complaints, with a focus on ensuring appropriate patient care, fairness and improving medical practice. In the experience of the College, inadequate communication is the root of most complaints. Whether participating in, providing or conscientiously declining to provide PAD, physicians should take extra care to ensure communication and documentation of these discussions is optimal.
- Challenges of allied health professionals – The College recognizes PAD will touch other healthcare professionals. Patients seeking physician-assisted death will typically have many different healthcare providers; for example, patients with disabling neurologic conditions will often receive care from physiotherapists, occupational therapists, social workers, nurses, patient care aides and nutritionists, as well as their primary care physician, neurologist and other physician providers. In addition, the process of PAD, whether self-administration of medication by the patient (assisted suicide) or physician-administered medication (euthanasia) may require participation by pharmacists, nurses, palliative care team members and others. Physicians need to be sensitive to the impact of PAD on other members of the healthcare team, including their concerns about legal liability. (The Carter decision addresses only the role of physicians; other healthcare provider roles are not addressed). As with physicians, other members of the healthcare team may have moral or religious objections when a patient seeks PAD.
- Social dialogue – The College will continue to actively participate in the social dialogue examining how best to guide physicians in the care of patients who have “grievous and irremediable medical condition (including an illness, disease or disability) that causes suffering that is intolerable to the individual.” The treatment provided must reflect the World Health Organization definition of health as much more than disease management, but treatment of the patient in his/her own context. The College believes such holistic care is best provided through well-functioning teams, and all options for chronic disease management and palliative care need to be part of the wider conversation.
Principles-based Recommendations for a Canadian Approach to Assisted Dying, Canadian Medical Association
A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and Voluntary Euthanasia, College of Family Physicians of Canada, October 2015
Guide to Capacity Assessment under the Personal Directives Act, Alberta Office of the Public Guardian
Guide for Capacity Assessors, Alberta Adult Guardianship and Trusteeship Act
Physician and Family Support Program: 1-877-767-4637 (confidential personal support for physicians)
Federal Government Introduces Bill C-14
- On April 14, 2016 the Government of Canada introduced a bill to amend the Criminal Code to allow “medical assistance in dying” (read the bill here). While the bill is not yet law, it identifies the intent of the federal government with respect to legislating medical assistance in dying. The College is aligning its Advice to the Profession with this terminology, and will soon post an update to this document.
- Individuals seeking PAD before June 6, 2016 can apply to a superior court in their home province for an individual exemption according to the criteria set out in the SCC decision in Carter of February 6, 2015.