Redefining the practice of medicine

Winks and nods and euthanasia in Quebec

Bill 52: An Act respecting end-of-life care (June, 2013)

Sean Murphy*

Part 2: Bill 52 in detail

Taking the Act at face value

For present purposes, it is assumed that "medical aid in dying," which is not defined in Bill 52 (An Act respecting end-of-life care), is intended to mean euthanasia by physicians. Further, it is assumed that this is what the Quebec government, the Quebec medical establishment, patients and both supporters and opponents of the Act understand it to authorize or require. In this part, the Act is reviewed as if it will give effect to the government's intentions.

"End-of-life care"

Bill 52 speaks of "end-of-life care," which it defines as "palliative care provided to persons at the end of their lives, including terminal palliative sedation, and medical aid in dying."1 As noted above, nothing in this definition (including the reference to MAD) mentions killing in any form, but for the purposes of this part of the analysis we assume that MAD means euthanasia . Thus, when Bill 52 states that "every person whose condition requires it has the right [subject to the Act] to receive end-of-life care,"2 this must be understood to mean that the Bill establishes a right to euthanasia for a certain class of patients.

"End-of-life patients"

Note that, under Bill 52, although "end-of-life patient" may refer to a someone who is near death or, perhaps, to a terminally ill patient, this is not necessarily true. Those seeking euthanasia may not be near the end of their lives and may not be terminally ill, but it appears that they are classed as "end-of-life patients" because they have chosen to end their lives.

"Terminal palliative sedation" (TPS) (Section 25)

The phrase "terminal sedation" first appeared in medical literature in English in 1991. By 1998, while it had not been clearly defined, researchers surveying 61 palliative care specialists from different countries recommended that the phrase "terminal sedation" be replaced by "sedation for intractable distress in the dying."3 Instead, the more manageable term "palliative sedation" came into increasing use while references to "terminal sedation" decreased. By 2012/2013 it appears that almost 85% of the references in medical literature in English were to "palliative sedation," not "terminal sedation."4 An American palliative care organization, the National Hospice and Palliative Care Organization (NHPCO) explained the reason for the change:

Terminal sedation is an older term for palliative sedation. Its use has fallen out of favor because of the way in which the word ''terminal''was misinterpreted to imply that the sedation itself caused or hastened death.5

Palliative sedation is described in the Quebec legislature's Select Committee Dying with Dignity Report:

. . .in the presence of refractory symptoms associated with, for example, pain, breathing problems, agitation, or psychological or existential suffering, the patient is sometimes rendered unconscious, in the same manner as a burn victim. Powerful sedatives are used to induce artificial sleep either intermittently or continuously to relieve awareness of suffering.6

The Committee, took note of some of the controversies associated with palliative sedation, that the procedure is unregulated, and observed that standards and practices may vary across the province. In consequence, it recommended that the Collège des médecins du Québec, the regulatory authority for medical practice, "develop a practice and ethical standards guide for palliative sedation."7

However, what Bill 52 proposes is not palliative sedation, but "terminal palliative sedation,"8 a term not used by the Dying with Dignity Report and not found in a database of 22 million citations from biomedical literature, life science journals and online books.9 Moreover, while the Dying with Dignity Report recommended that the provincial regulatory authority develop standards of practice (which would apply to the whole province), Bill 52 bypasses the regulator and, instead, requires institutional councils of physicians, dentists and pharmacists (Appendix A19.1) to "adopt clinical protocols applicable to terminal palliative sedation and medical aid in dying."10

Why these differences? Why, in particular, has the Quebec government invented the term "terminal palliative sedation," a term not used in the Dying with Dignity Report and not used by the medical professions?

The answer appears to lie in an important difference between the intentions of palliative care specialists and the intentions of the government. It appears that the Quebec government has reintroduced the word "terminal" for the very reason that it has fallen out of favour among palliative care physicians: because it can be taken to mean terminating the life of the patient.

This is reflected in the differences between the Dying with Dignity Report and Bill 52.

Dying with Dignity Report, p. 36	Bill 52, Section 25
Powerful sedatives are used to induce artificial sleep either intermittently or continuously to relieve awareness of suffering.	[Patients or proxies] must. . . be informed of . . . the irreversible and terminal nature of the sedation . . .

The Dying with Dignity Report does not describe palliative sedation as "irreversible," and acknowledges that it can be intermittent. This is consistent with published guidelines for palliative sedation from (for example) the NHPCO (USA)11 and the Fraser Valley Health Region in British Columbia,12 both of which refer to respite (intermittent) sedation, acknowledge the possibility of reversal, and emphasize that sedation relieves symptoms but is not the cause of death.

The term "terminal palliative sedation," says Professor Margaret Somerville, invites confusion, "because some sedation at the end of life is not euthanasia and some can be."13

The wording of Section 25 indicates that what the Quebec government means by "terminal palliative sedation" (TPS) is an irreversible procedure intended to kill the patient, though slowly. In contrast, Professor Somerville describes "palliative sedation" as a "rarely indicated . . . treatment for dying people. . . used when it is the only reasonable way to control pain and suffering and is given with that intention."14

Bill 52 purports to give patients the right to be killed quickly (by "medical aid in dying") and the right to be killed slowly (by TPS).15 Any patient is eligible for TPS, and a proxy can consent to it on behalf of an incompetent patient. Only some patients are eligible for MAD euthanasia, and each must consent it personally (see below).

"Medical aid in dying" (MAD) (Section 26)

Bill 52 states that MAD euthanasia will be available only to competent Quebec residents who are at least 18 years old, and who

• "suffer from an incurable serious illness;"17
• are in an "advanced state of irreversible decline in capability;"18
• "suffer from constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable."19

Note that the patient need not be terminally ill, that most of the terms used can be broadly construed, and that the patient remains free to refuse effective palliative treatments and opt, instead, for euthanasia.

The MAD procedure (Section 28)

A qualifying patient must personally request MAD "in a free and informed manner," in writing, using a form approved by the Minister. If the patient is unable to date and sign the form, it may be signed on his behalf by a competent adult who is not part of the health care team looking after the patient. It must be signed in the presence of "a health and social services professional," who may be the attending physician. This professional witness must sign the form as well. The form is to be given to the attending physician if he is not the professional witness.20

The attending physician cannot provide euthanasia unless he first confirms eligibility of the patient using the criteria in Section 26 (above) and ensures that the patient is making a free and informed decision that includes an awareness of "other therapeutic possibilities."21 However, the fact that a patient has refused effective palliative treatments is not reason to refuse euthanasia.22

The physician must also talk to the patient "at reasonably spaced intervals" to verify "the persistence of suffering" and a continuing desire for euthanasia,23 ensure that the patient has the opportunity to discuss their decision with people they wish to contact,24 and discuss the request with other members of the health care team who are in regular contact with the patient.25 However, the physician cannot discuss the patient's request with family members unless the patient so wishes.26 Thus, under the terms of the Act, a physician may kill a patient without the knowledge of the family.

Finally, the attending physician must obtain the written opinion of an independent physician who is not involved with the care or treatment of the patient confirming the patient's eligibility for euthanasia. Before providing the opinion, the second physician must review the patient chart and examine the patient.27

Only physicians may provide euthanasia (MAD), and, having done so, must "take care" of a patient until he dies. It is not clear if this means that the physician must remain with the patient, or if 'taking care' can be delegated to others.28 Physicians who provide TPS or MAD must report the fact to the council of physicians, dentists and pharmacists (or medical director) having jurisdiction.29 They must report all MAD euthanasia cases to the Commission on End-of-Life Care within 10 days.30

Institutional oversight

No explicit role is assigned by Bill 52 to the regulators of the health care professions, including the Collège des médecins du Québec, though the Act appears to assume that the regulators will establish "clinical standards."31 Instead, a central role in the provision of euthanasia is assigned to institutional councils of physicians, dentists and pharmacists (or, in their absence, physician directors of care32) (Appendix A19.1). They are to adopt TPS and MAD guidelines,33 and then review reports from physicians who have provided the procedures to "assess the quality of the care provided."34

Commission on End-of-Life Care

Bill 52 authorizes the establishment of the Commission on End-of-Life Care35 that will consist of seven government appointees who will hold office for up to five years.36 They are to evaluate the implementation of the Act respecting end-of-life care and provide advice to the government.37 The Commission is to review every physician report of euthanasia. If at least two thirds of the members present believe that a physician failed to comply with Section 28 MAD guidelines, they are to notify the physician, the institution, the Collège des médecins du Québec and "any other authority concerned."38

Criminal law

Canadian criminal law is not affected by the Act. Hence, no matter what the Act purports to do, the following will remain criminal offences in Quebec even if the Act passes:

• Killing
  • Murder (1st degree)39
  • Murder (2nd degree)40
  • Manslaughter41
  • Conspiracy to commit murder42
  • Doing or omitting to do anything for the purpose of aiding any person to commit murder43
  • Abetting any person to commit murder44
  • Counselling, procuring, soliciting or inciting someone to commit murder,45 even if the murder is not committed46
• Administering lethal drugs
  • Administering a noxious substance47
  • Conspiracy to administer a noxious substance48
  • Doing or omitting to do anything for the purpose of aiding any person to administer a noxious substance49
  • Abetting any person in the administration of a noxious substance50
  • Counselling, procuring, soliciting or inciting someone to administer a noxious substance,51 even if the substance is not administered52

Parties to criminal offences

While the Act assigns the task of providing "medical aid in dying" to physicians, the criminal law applies, not just to the act of killing the patient, but to any act or omission done for that purpose, including the making and distribution of MAD guidelines and protocols. This has implications not only for all of the health care workers and institutions expected by the Act to provide MAD, but for administrators, regulators and councils directed by the Act to regulate or manage the procedures.

First degree murder

First degree murder is defined as murder that is "planned and deliberate."53 If we assume that "medical aid in dying" involves killing the patient, a physician who does what the Act requires under Section 28 and 29 (see above) will have provided excellent evidence that the killing was intentional, planned and deliberate. Thus, conforming to the Act respecting end-of-life care would seem to increase the likelihood that a physician - and anyone counselling, aiding, abetting his act - could be charged and convicted for first degree murder, for which the punishment is life imprisonment without parole for 25 years.54

Implementing the Act

For the purposes of analysis in Part 2, it has been assumed that "medical aid in dying "means euthanasia by physicians, and that the Act respecting end-of-life care will be used to make euthanasia by physicians available in Quebec. The implementation of the Act and potential responses to it, including conscientious objection, will be discussed in Part 3.

---

Notes:

1.  Bill 52, An Act respecting end-of-life care (Hereinafter "Bill 52"), Section 3(3). (Accessed 2013-06-12)

2.  Bill 52, Section 5. (Accessed 2013-06-12)

3.  Chater S, Viola R, Paterson J, Jarvis V. "Sedation for intractable distress in the dying--a survey of experts." Palliat Med. 1998 Jul;12(4):255-69. (Accessed 2013-06-22)

4.  Estimate based on a year-by-year search for each term in the PubMed database.

5.   National Hospice and Palliative Care Organization (NHPCO) "Position Statement
and Commentary on the Use of Palliative Sedation in Imminently Dying Terminally
Ill Patients." Journal of Pain and Symptom Management, Vol. 39, No. 5, May 2010, p. 917. (Accessed 2013-06-22).

6.  Select Committee Dying with Dignity Report (March, 2012) p. 36. (Accessed 2013-06-13)

7.  Select Committee Dying with Dignity Report (March, 2012) p. 39-40. See also Recommendation 7. (Accessed 2013-06-13)

8.  Bill 52, Sections 3(3), 25. (Accessed 2013-06-12)

9.  PubMed (U.S. National Library of Medicine, National Institutes of Health) (Accessed 2013-06-22)

10.  Bill 52, Section 32. (Accessed 2013-06-12)

11.  National Hospice and Palliative Care Organization (NHPCO) "Position Statement
and Commentary on the Use of Palliative Sedation in Imminently Dying Terminally
Ill Patients." Journal of Pain and Symptom Management, Vol. 39, No. 5, May 2010, 914-923 () Accessed 2013-06-22. Respite (intermittent) sedation is discussed (p. 917, 921) and the possibility of reversal explicitly noted (p. 922).

12.  Fraser Health, Refractory Symptoms and Palliative Sedation Therapy Guideline (2011) Respite (intermittent) sedation is discussed (p. 4) and one of the respite sedation (intermittent) and planning for palliative sedation should include discussion of "whether the sedation therapy will be discontinued or reversed after a period of time." (p.10) (Accessed 2013-06-22)

13.  Somerville, Margaret, "Quebec is trying to legalize euthanasia by calling it something else. It's still wrong." Globe and Mail, 19 June, 2013. (Accessed 2013-06-24)

14.  Somerville, Margaret, "Quebec is trying to legalize euthanasia by calling it something else. It's still wrong." Globe and Mail, 19 June, 2013. (Accessed 2013-06-24)

15.  Bill 52, Section 3(3). (Accessed 2013-06-12)

16.  Bill 52, Section 26(1). (Accessed 2013-06-12)

17.  Bill 52, Section 26(2). (Accessed 2013-06-12)

18.  Bill 52. Section 26(3). (Accessed 2013-06-12)

19.  Bill 52, Section 26(4). (Accessed 2013-06-12)

20.  Bill 52, Section 26. (Accessed 2013-06-12)

21.  Bill 52, Section 28(1)b. (Accessed 2013-06-12)

22.  Bill 52, Section 7. (Accessed 2013-06-12)

23.  Bill 52, Section 28(1)c. (Accessed 2013-06-12)

24.  Bill 52, Section 28(2). (Accessed 2013-06-12)

25.  Bill 52, Section 28(1)d. (Accessed 2013-06-12)

26.  Bill 52, Section 28(1)e. (Accessed 2013-06-12)

27.  Bill 52, Section 28(3). (Accessed 2013-06-12)

28.  Bill 52, Section 29. (Accessed 2013-06-12)

29.  Bill 52, Section 33. (Accessed 2013-06-12)

30.  Bill 52, Section 41. (Accessed 2013-06-12)

31.  Bill 52, Section 32. (Accessed 2013-06-12)

32.  Bill 52, Section 34. (Accessed 2013-06-12)

33.  Bill 52, Section 32. (Accessed 2013-06-12)

34.  Bill 52, Section 33. (Accessed 2013-06-12)

35.  Bill 52, Section 35. (Accessed 2013-06-12)

36.  Bill 52, Section 36. (Accessed 2013-06-12)

37.  Bill 52, Section 39-40. (Accessed 2013-06-12)

38.  Bill 52, Section 42. (Accessed 2013-06-12)

39.  Criminal Code (R.S.C., 1985, c. C-46) (Hereinafter "CC"), Section 229; Section 231(1). (Accessed 2013-06-17)

40. CC, Section 229; Section 231(7) (Accessed 2013-06-17)

41.  CC, Section 232(1). (Accessed 2013-06-17)

42.  CC. Section 465. (Accessed 2013-06-17)

43.  CC, Section 21(b). (Accessed 2013-06-17)

44.  CC, Section 21(c). (Accessed 2013-06-17)

45.  CC, Section 22 (Accessed 2013-06-17)

46.  CC, Section 464. (Accessed 2013-06-17)

47.  CC, Section 245. (Accessed 2013-06-17)

48.  CC, Section 465. (Accessed 2013-06-17)

49.  CC, Section 21(b). (Accessed 2013-06-17)

50.  CC, Section 21(c). (Accessed 2013-06-17)

51.  CC, Section 22. (Accessed 2013-06-17)

52.  CC, Section 464. (Accessed 2013-06-17)

53.  CC, Section 231(2). (Accessed 2013-06-17)

54.  CC, Section 745(a). (Accessed 2013-06-17)