February 25, 2016 – Anna Mehler Paperny, Global News
Canadians who want help dying should be able to get it wherever they are and whenever they feel they need it, even if they have a mental illness, a federal report says.
Here’s what you need to know:
- Advance directives are allowed, after diagnosis.
- People with mental illness can get help dying.
- ‘Mature minors’ can get help dying eventually.
- Objecting doctors must refer.
- Doctors, nurse practitioners and registered nurses under a doctor’s directioncan help people die.
- Conservatives on the committee don’t like the report.
- This could change the way Canada collects death data, balances doctor beliefs with patient care and decides who’s capable of making their own health decisions.
The report puts the ball in the federal government’s court: Ottawa has just over three months — until June 6 — to come up with a national framework for assisted death. It could also oblige Quebec to expand its assisted death law, which came into effect in December but was much more restrictive.
Its recommendations would make Canada’s assisted death framework one of the broadest in the world: The U.S. jurisdictions where it’s legal — including Oregon and Washington state — only allow it in the months before someone is expected to die.
READ MORE: Key questions on assisted death in Canada
The report was more cautious about young people: It recommendedrestricting assisted death to people 18 and over for up to three years before expanding it to include minors.
“A competent mature minor who has a grievous and irremediable medical condition should not be forced to endure intolerable suffering,” the report reads.
Patients should be able to request death in advance, in case they’re diagnosed with an illness that might render them incapable of consenting. They don’t need to have a terminal illness or face imminent death in order to request it, the report says.
And the report suggests nurse practitioners or registered nurses acting under a doctor’s direction should also be allowed to help patients die.
Two doctors should agree a patient is eligible for assisted dying, the report recommends, and there should be a waiting period — although the length of time you have to wait can depend on your disease and its deterioration.
Canadians should be able to get help dying in hospitals, care facilities or in their own homes, the committee says.
While it acknowledges the challenge of determining whether a desire to die motivated by mental illness isn’t compromised by that illness, the committeedecided it couldn’t render people ineligible for assisted death based on mental illness alone.
That puts the responsibility to determine capacity on physicians, and advocateshope the extra attention will strengthen the way we assess consent and capacity.
“Cases involving mental illness may prove challenging to address for health care practitioners, but the Committee has faith in the expertise of Canadian health care professionals to develop and apply appropriate guidelines for such cases.,” the report reads.
“The difficulty surrounding these situations is not a justification to discriminate against affected individuals.”
READ MORE: Canada’s competing assisted-death guidelines, explained
And while the committee leaves the issue of health workers’ conscientious objection primarily to the provinces, it notes that even if a doctor doesn’t want to help someone die, “at a minimum, the objecting practitioner must provide an effective referral for the patient.”
The provinces, perhaps with some pressure from the federal government, will need to decide what an “effective referral” is.
But Canada has a less than stellar record when it comes to making sure doctors’ consciences don’t compromise patients’ access to care, says Dalhousie University’sJocelyn Downie, who co-authored a provincial-territorial report on assisted death last year.
“We have to find a way to maximally respect conscience as best we can as long as we ensure there is patient access,” she said.
“We haven’t been good at it in the past because the governments have left it to the colleges [of physicians and surgeons]. And the colleges, I think, have abdicated their responsibility.”
That means governments will need to take a tougher stance on what doctors do when they don’t want to provide care, Downie said.
“We can’t actually leave this to the college of physicians because they’ve shown themselves not to be up to the task of ensuring patient access to some controversial services that are medically necessary.”
Interestingly, the committee was less sympathetic toward institutions, such as hospitals or long-term care facilities, that object to assisted death taking place on their grounds.
The report recommends the federal and provincial governments “ensure that all publicly funded health care institutions provide medical assistance in dying.”
“If you get public funding the position in this report is, you have an obligation to provide all legal services,” Downie said.
“This is going to be a point, I have no doubt, of enormous discussion.”
The committee didn’t see a need to define “grievous and irremediable,” the wording used in the Supreme Court’s ruling last year. That determination should be up to the person seeking care.
The Conservatives on the special committee dissented from key aspects of the report, including its inclusion of children and people with mental illness.
“Unfortunately, the regime recommended in the Committee’s main report falls farshort of what is necessary to protect vulnerable Canadians and the Charter protected conscience rights of health professionals,” the dissent reads, adding that allowing for minors or people with mental illness to seek assistance dying is “contrary to Carter.”
But Downie argues these MPs just disagree with the Supreme Court’s ruling, period.
“They’re trying to re-litigate Carter,” she said.
“We really do need to move beyond that.”
Speaking with Global News last week, Health Minister Jane Philpott admitted she’d like more time, but said the government will make its deadline.
“Obviously it’s a complex issue. There are a lot of factors to take into consideration. … And so on the one hand, of course it would be lovely to have more time,” she said.
“But on the other hand, we’re hearing from people who are facing suffering and who are facing challenging end-of-life issues. And I think that’s why the Supreme Court would like us to get on with a decision as soon as possible.”
Last year a unanimous Supreme Court ruling found Canada’s prohibition on physician-assisted death violates the Charter.
The ruling in Carter v. Canada stated that mentally competent adults enduring intolerable suffering as the result of a“grievous and irremediable” medical condition have the right to a physician’s help in dying.
Originally, the Court gave the federal government a year to amend the Criminal Code. But the Conservatives waited several months to strike a panel whose work was then put on hold for a months-long federal election.
The newly elected federal Liberals asked for an extra six months to craft legislation of their own. Last month, the Supreme Court gave them four.
That gives the feds until June 6 to come up with a federal framework for physician-assisted death.
READ MORE: Canada’s competing assisted-death guidelines, explained
The committee held 16 meetings, talked to 61 witnesses and received more than 100 written submissions.
“Witnesses wanted to avoid what some describe as a “patchwork approach” to the issue, in which the eligibility criteria and process for accessing [assisted death] vary greatly from one province or territory to another,” the report says.
” In addition, there was an overwhelming consensus among witnesses that palliative care needs to be improved more generally, and that better supports need to be provided for individuals with disabilities, individuals with mental health issues, and individuals with dementia.
“We recognize that considerable work needs to be done to ensure that individuals do not seek [assisted death] as a result of a lack of proper community and other supports.”
READ MORE: ‘This is real people suffering’
The report also made a significant terminological clarification, calling the issue “medical assistance in dying” rather than “physician-assisted death,” because other health workers can be involved.
“The Committee prefers the term ‘medical assistance in dying’ to ‘physician-assisted dying,” as it reflects the reality that health care teams, consisting of nurses, pharmacists, and other health care professionals, are also involved in the process of assisted dying,” it reads.
Canada is notoriously bad at tracking health data in a coherent, national way. This report calls on the feds to work with the provinces to collect and analyze data on who’s seeking assisted death and why, and publish it annually.
Downie hopes intergovernmental cooperation on collecting assisted death data can help Canada improve its vital statistics collection more broadly.
“I hope that if we develop the skills to do that and the mechanisms to do that, that we’ll be able to use those in the context of other healthcare issues,” she said.
“In Canada, we do have a set of real gaps with respect to information.”
It also calls for a mandatory review of assisted death legislation every four years.