Redefining the Practice of Medicine
Euthanasia in Quebec
An Act Respecting End-of-Life Care (June, 2014)
Sean Murphy*
An Act Respecting End-of-Life Care ("ARELC")
is intended to legalize euthanasia by physicians in the province of
Quebec. It replaces the original Bill 52, the subject of a previous
commentary by the Project. ARELC purports
to establish a right to euthanasia for a certain class of patients by
including it under the umbrella of "end-of-life care." ALERC calls
euthanasia for competent patients "medical aid in dying" (MAD). ALERC
provides for but does not identify euthanasia for incompetent
patients, called here Euthanasia Below the Radar (EBTR).
ARELC's definition of palliative
care clearly distinguishes palliative care from MAD. In defining MAD, the statute
does not say "kill," but employs a
euphemism: "hastening death." Nonetheless, it is obvious that ARELC authorizes a physician to kill
patients.
The MAD guidelines for euthanasia restrict it to legally
competent persons at least 18 years old who are
insured under the provincial Health Insurance Act. Beyond
age, legal competence and residency/insurance, someone seeking
euthanasia must be at "the end of life," suffering from an incurable
serious illness, in an advanced state of irreversible decline and
suffering from constant and unbearable physical or psychological pain.
The patient need not be terminally ill and is free to refuse effective
palliative treatments.
A qualifying patient must personally make a written request for MAD "in a
free and informed manner." It must be signed in the presence of
professional, who must also sign the request. The attending physician must
confirm the eligibility of the patient and the free and informed nature of
the request. He must verify the persistence of suffering and a continuing
desire for euthanasia, speak to other members of the health care team and
see that the patient is able to discuss the decision with others. However,
the physician cannot advise family members unless the patient so wishes.
Thus, a physician may kill a patient without the knowledge of the family.
Finally, the attending physician must obtain a written opinion of an
independent physician confirming eligibility for euthanasia.
Only physicians may administer the lethal drugs or substances, and, having done so, must
remain with a patient until he dies. Physicians who provide MAD
must report the fact to institutional authorities or the College of
Physicians, as well as the Commission on End-of-Life Care.
A central role in the provision of euthanasia
is assigned to institutional councils of physicians, dentists and
pharmacists (or, in their absence, institutional directors of care). They are to adopt MAD guidelines, and then review reports
from physicians who have provided the procedures to "assess the quality of
the care provided." The Collège des médecins is also to
receive such reports from physicians and, apparently, to establish or at least recognize
"clinical standards" relative to the procedures.
In addition to the MAD protocol, ARELC permits a substitute
decision-maker to order that an incompetent patient be starved and
dehydrated to death. This provides an alternative form of euthanasia
subject to none of the restrictions or conditions imposed by MAD
guidelines: hence the term used here - "Euthanasia Below the Radar"
(EBTR). Since death by
starvation and dehydration would be a painful process, it is likely
that, in such circumstances, continuous palliative sedation (CPS) would
be used to anaesthetize the patient. This may lead to the under-reporting
of the actual number of euthanasia cases and further confusion about continuous palliative sedation.
Canadian criminal law is not affected by ARELC. A physician who does what ARELC requires in the MAD protocol will have provided
excellent evidence that the killing was intentional, planned and deliberate.
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.
The definition of "institution" is critical because Act Respecting End-of-Life Care
(ARELC) purports to
impose a duty to provide end-of-life care (which includes euthanasia) on institutions governed by the
Act Respecting Health Services and Social Services (ARHS&SS)that
operate local community service centres, hospital centres, and residential
and long-term care centres. As a general rule, any person or
partnership who carries on "activities inherent in the mission" of one of
these kinds of centres is considered to be an "institution." Institutions are public if they
are non-profit corporations, or if they are incorporated or are formed as a
result of amalgamation or conversion under the Act Respecting Health
Services and Social Services. They are private if they
are unincorporated, or profit-making corporations, or non-profit
corporations providing some kinds of health care for fewer than 20 patients.
(Appendix A10,
A11)
The definition of "palliative care hospice" is equally important because
ARELC exempts palliative care hospices from having to provide euthanasia.
Palliative care hospices are "community organizations" accredited by the
Minister of Health and Social Services that have agreements with
institutions to obtain some or all of the care needed by their clientele.
"Community organization" is defined by ARHS&SS as incorporated an non-profit
entity governed by a board of directors. Although community
organizations receive government funding, they remain free
to define their "orientations, policies and approaches." (Appendix
A6)
ARELC speaks of "end-of-life care," which it defines as "palliative
care provided to end-of-life patients and medical aid in dying."1
Thus, when ARELC 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
law establishes two different rights: a right to palliative care for
"end-of-life patients," and a right to euthanasia that is not limited to
"end-of-life patients" - a frequently used but undefined term.
The distinction between euthanasia and palliative care is frequently (and
often deliberately) blurred. Testimony from a number of
experts and specialist groups before the legislative committee in the fall
of 2013 repeatedly emphasized that euthanasia is not palliative
care. Legal effect to this distinction is given by one of the most
important additions to the final text of ARELC: a definition of palliative care:
"palliative care" means the
total and active care delivered by an interdisciplinary team to patients
suffering from a disease with reserved prognosis, in order to relieve
their suffering, without delaying or hastening death, maintain the
best quality of life possible and provide them and their close relations
the support they need;3
The original text of Bill 52 included the novel term "terminal
palliative sedation," which generated a good deal of confusion and comment
during the committee hearings in the fall of 2013. It appears that the
Quebec government used the term because it could be understood to mean
terminating the life of the patient. The term has been replaced in
ARELC by "continuous palliative sedation," (CPS) defined as
"administering medications or substances to an end-of-life patient to
relieve their suffering by rendering them unconscious without interruption
until death ensues."4
When compared to professionally recommended palliative care practice,
ARELC's definition of continuous palliative sedation is problematic.
When
CPS is properly used, the goal is not to render the patient unconscious:
The aim or intention of CPST is the relief of
suffering due to refractory and intolerable symptoms and not the sedation
itself. There should be no intention to shorten life and no intention to
bring about complete loss of consciousness although this latter may
sometimes be necessary. The level of consciousness is lowered only as far as
is necessary to relieve the suffering. Thus . . . the combination and amount
of drug used to reduce the level of consciousness should be just sufficient
to alleviate distress. Viewing the actual sedation as the desired outcome is
inappropriate.5
ARELC's definition does not imply the CPS causes death. However,
ARELC also requires that a patient or substitute decision maker be advised of
"the irreversible nature of the sedation,"6 so "irreversibility" remains an
implied characteristic of the procedure envisioned in the law.
Moreover, the reporting requirements imposed by ARELC
for continuous palliative sedation are almost identical to the reporting requirements for
euthanasia,7
which seems to imply an extremely close connection between the two
procedures.
Sedation is not, by its nature, irreversible, a point
demonstrated by the recommended monitoring of patients and careful titration
of sedation. Moreover, CPS is normally considered only when death is
imminent, clinically defined as "'dying' or 'being in the last stages of
life,'" typically understood to mean a projected remaining lifespan of
"hours or days, or at most less than two weeks."8
The problematic statutory definition of CPS, the reference to
"irreversibility" and the peculiar reporting requirements is likely related
to
the fact that ARELC authorizes two different kinds of euthanasia, and CPS
may be used in conjunction with one of them (See
Euthanasia Below the Radar).
MAD was not defined in Bill 52, apparently to avoid a constitutional
challenge to the law by the federal government. Nonetheless, everyone was
aware that MAD meant euthanasia by physicians. The Quebec government has dispensed with the winks and
nods and has defined "medical aid in dying" in ARELC:
"medical aid in dying" means care consisting in
the administration by a physician of medications or substances to an
end-of-life patient, at the patient's request, in order to relieve their
suffering by hastening death.9
The law requires that a physician who determines that "medical aid in
dying" (MAD) may be administered to a patient "must administer such aid
personally and take care of and stay with the patient
until death ensues."10
The statute
does not say "kill" or even "end the life of the patient," but employs a
euphemism: "hastening death." Nonetheless, in view of the law's requirement that
the physician who administers the medication or substance must "stay with the patient until death ensues," it would be
disingenuous to claim that ARELC does not authorize a physician to kill
patients. We do not, after all, describe executions by lethal
injection (which may use the same drugs and procedures employed in MAD)
as "hastening death" or "aid in dying." (Part
4)
The statutory MAD guidelines for euthanasia restrict it to legally
competent persons at least 18 years old who are
insured under the provincial Health Insurance Act.11 Insured persons are residents or temporary residents of Quebec who
have registered for provincial health insurance coverage.12 A Quebec resident is a Canadian citizen, permanent resident of Canada, a
refugee or other category of person defined by regulation whose permanent
home is in Quebec. Temporary residents of Quebec include foreign
nationals authorized to work in Quebec for more than six months and their
spouses and dependents, certified foreign students and their spouses and
dependents and other less common categories defined by regulation.13
Canadians who move to Quebec from other provinces and register for Quebec
health care become insured persons only after the health care coverage from
the other province ceases.14 Generally, this occurs after two or three months. Similarly,
most other people who have moved to Quebec become residents or temporary
residents on first day of the third month following their arrival.15
In order to be eligible for MAD, patients must also be "at the end of life."16 This requirement was added to
ARELC, apparently because of concern that the original wording in Bill 52
could be construed too broadly.17
In addition to meeting the criteria of age, competency, insurance, and
being "at the end of life," MAD criteria require that a patient must also "suffer from a serious and incurable illness,"18
be in an "advanced state of irreversible decline in capability,"19
and "experience constant and unbearable physical or psychological pain
which cannot be relieved in a manner the patient deems tolerable."20
At first glance, the eligibility criteria for MAD seem clear and stable,
so that circumstances in which conflicts of conscience may arise with
respect to direct participation will be limited and predictable.
However, it will be seen in Part 3 that
this is not the case.
A qualifying patient must personally request MAD "in a free and informed
manner," in writing, using a form approved by the Minister.21 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.22 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.23
The attending physician cannot provide euthanasia unless he first
confirms eligibility of the patient using the criteria in Section 26 (above)24 and ensures that the patient is making a free and informed decision, not
a result of "external pressure,"25 a
decision that
includes an awareness of "the prognosis of the illness and other therapeutic possibilities
and their consequences."26 The
fact that a patient has refused effective palliative treatments is not
reason to refuse euthanasia.27
The physician must also talk to the patient "at reasonably spaced
intervals" to verify "the persistence of suffering" and a continuing desire
for euthanasia,28 ensure that the patient has the opportunity to discuss their
decision with people they wish to contact,29 and discuss the request with
other members of the health care team who are in regular contact with the
patient.30 However, the physician cannot discuss the patient's request with
family members unless the patient so wishes.31 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.32
Only physicians may provide MAD, and, having done so, must
"stay with the patient until death ensues."33 Physicians associated with private health care facilities may provide euthanasia
at a patient's home.34
Physicians associated with institutions who provide CPS or MAD must
report the fact to the council of physicians, dentists and pharmacists (or
medical director) having jurisdiction.35
Those practising in private health facilities must report to the College of
Physicians.36 They must report all MAD
cases to the Commission on End-of-Life Care within 10 days.37
The MAD provisions are limited to legally competent patients. They include statutory restrictions,
procedural guidelines and reporting requirements, and have understandably been
the focus of most public and professional attention. Most people
probably believe that this is the only type of euthanasia authorized by the
new law.
However, ARELC also provides that substitute decision makers
can order legally incompetent patients who are not dying to be starved and
dehydrated to death. This practice, identified here as Euthanasia
Below the Radar (EBTR), is to be distinguished from the withdrawal of food
and fluids when death is imminent and they are no longer wanted or needed.
EBTR was introduced into ARELC by means of a revision to the original text.
Section 6 of Bill 52 stated that a competent adult could "refuse to
receive, or withdraw consent to, a life-sustaining treatment or procedure."
This introduced nothing new; it merely codified an existing right.
Equally important, even if refusal of treatment or care by a competent
patient led to his death, the law has never considered this euthanasia or
assisted suicide. However, two
modifications were introduced into what is now
Section 5 of ARELC.
First: the original phrase "life-sustaining treatment or procedure"" has been replaced in ARELC's
by "life-sustaining
care." The latter term more readily encompasses food
and fluids in any form. Second: ARELC provides that life-sustaining care
(i.e., including food and fluids) can be refused on behalf of or withdrawn
from an incompetent patient by a substitute medical decision-maker.38
The change permits a substitute decision-maker to direct that an incompetent
patient who is neither terminally ill nor dying be starved and dehydrated to death.
The change from treatment to care and the statutory
authorization of a substitute decision maker to stop the provision of food
and fluids may have been prompted by a British Columbia case that made the
news in late 2013. Family members went to court to stop caregivers from
spoonfeeding an 82 year old legally incompetent nursing home resident when
she opened her mouth to accept food. She was not terminally ill, nor was
she dying, so to comply with the family wishes would have caused her death
by starvation and dehydration. Among other things, the judge ruled that
spoon-feeding was not "health care" within the meaning of the law, but a
form of personal care. While he agreed that, under the common law, a
competent adult can refuse food and fluids and thus commit suicide, he found
no legal precedent to justify such a decision by a substitute decision maker
in the case of an incompetent person. On the other hand, he recognized that
his conclusions could be affected by public policy or statute.39 Within the province of
Quebec, the authority that the judge could not find in the law has now been
supplied by Section 5 of ARELC.
Professor Jocelyn Downie of Dalhousie University supports this as an option,
at least in the case of competent patients, or when authorized by an advance
directive made by a patient before becoming incompetent.40
She warned legislative committee members that euthanasia by starvation and
dehydration should be clearly identified as a specific category and made
subject to MAD guidelines. Otherwise, she said, "You will be setting up a
situation where somebody could access [euthanasia] when they're not expected
to die for five months and not meet your conditions of medical aid in
dying."41
Professor Downie's advice was ignored. Euthanasia of legally
incompetent patients by starvation
and dehydration is not identified as such in ALERC. It is completely
unrestricted and is not even reportable: hence the term used here:
Euthanasia Below the Radar (EBTR).
However, since death
by starvation and dehydration would be a painful process, it is likely that,
in such circumstances, continuous palliative sedation (as defined by ARELC
rather than recommended medical practice) would be used to anesthetize the
patient. This probably explains ALERC's medically problematic
definition of CPS and its requirement that CPS be reported to councils of
physicians, dentists and pharmacists or the Collège des médecins, but not
to the Commission on End of Life Care. ALERC's handling of Below the Radar Euthanasia and CPS
may lead to the under-reporting of the actual number of euthanasia
cases and further confusion about the nature of continuous palliative
sedation.
Palliative care hospices may offer euthanasia, but are not required to do
so. Before admitting patients, they must explain what kind of end-of-life
care they offer,42 so that patients
seeking MAD services will not be inadvertently misled and may go elsewhere (Part
8)
Section 72 of the
Act is a grandfather clause that concerns any institution operating a
"general and specialized hospital centre" that offers only palliative care.
Such institutions "may continue to offer that care exclusively" (i.e., need not
provide euthanasia), as long as they notify patients of this before admitting
them.43 Véronique Hivon, when Minister of Health, explained that the section is
intended to apply to a single institution - La Maison Michel Sarrazin.44
(Part 8)
The Collège des médecins du Québec is designated to
receive reports from physicians who have provided CPS or MAD,
and to assess the "quality of the care provided." The Act
appears to assume that the College will establish or at least recognize
"clinical standards" relative to the procedures.45
It is to report annually on the provision of the services, both on its
website and to the Commission on End-of-Life Care.46
A central role in the provision of euthanasia is assigned to
institutional councils of physicians, dentists and pharmacists (or, in their
absence, institutional directors of care47)
(Appendix A19.1). They are to adopt CPS and MAD guidelines,48
and then review reports from physicians who have provided the procedures to
"assess the quality of the care provided."49
ARELC authorizes the establishment of the Commission on End-of-Life Care50
that will consist of eleven government appointees who will hold office for
up to five years.51 They are to evaluate the implementation of the
Act and provide advice to the
government.52
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 29 MAD procedure, they are to notify the physician, the
institution, and the Collège des médecins du Québec. As a result of concerns
expressed by physicians, a requirement in Bill 52 to notify "any other
authority concerned" - such as the police - has been dropped.53
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)54
- Murder (2nd degree)55
- Manslaughter56
- Conspiracy to commit murder57
- Doing or omitting to do anything for the purpose of aiding any
person to commit murder58
- Abetting any person to commit murder59
- Counselling, procuring, soliciting or inciting someone to commit
murder,60 even if the murder is
not committed61.
- Administering lethal drugs
- Administering a noxious substance62
- Conspiracy to administer a noxious substance63
- Doing or omitting to do anything for the purpose of aiding any
person to administer a noxious substance64
- Abetting any person in the administration of a noxious substance65
- Counselling, procuring, soliciting or inciting someone to
administer a noxious substance,66
even if the substance is not administered67
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 is defined as murder that is "planned and
deliberate."68 Since "medical aid in dying"
means killing the
patient, a physician who does what the Act requires under Section
29 and 30
(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.69
Notes:
1.
An Act respecting end-of-life care
(Hereinafter "ARELC"), Section 3(3).
2.
ARELC, Section 4.
3.
ARELC, Section
3(4).
4. ARELC, Section
3(5).
5. Dean MM, Cellarius V, Henry B, Oneschuk D, Librach Canadian
Society Of Palliative Care Physicians Taskforce SL.
"Framework for continuous palliative sedation therapy in Canada."
J Palliat Med. 2012 Aug;15(8):870-9. doi: 10.1089/jpm.2011.0498. Epub
2012 Jul 2 (Accessed 2014-08-10)
6.
ARELC, Section 24.
7. The Act requires physicians to report both CPS and MAD to institutional
councils of physicians, dentists and pharmacists (Section
34) or the Collège des médecins (Section
36) which,
in turn, must report the statistics on its website and to the Commission on
End of Life Care (Section
37.) The executive directors of institutions are to report annually
to their boards the number of times CPS and MAD were administered.
(Section
8) Physicians must report every MAD case - but not CPS cases - to
the Commission on End-of-Life Care. (Section
46)
8.
Dean MM, Cellarius V, Henry B, Oneschuk D, Librach Canadian Society Of
Palliative Care Physicians Taskforce SL.
"Framework for continuous palliative sedation therapy in Canada."
J Palliat Med. 2012 Aug;15(8):870-9. doi: 10.1089/jpm.2011.0498. Epub
2012 Jul 2 (Accessed 2014-08-10)
9.
ARELC, Section
3(6).
10.
ARELC, Section 30.
11.
ARELC, Section
26(1), (2)
12.
Health Insurance Act, Chapter A-29,
Section 1(g.1). (Accessed 2014-06-11)
13.
Health Insurance Act, Chapter A-29,
Section 5;
Regulation respecting eligibility and registration of persons in
respect of the Régie de l'assurance maladie du Québec, Section 3
(Accessed 2014-06-11)
14. Health Insurance Act, Chapter A-29,
Section 8; (Accessed 2014-06-11)
15.
Regulation respecting eligibility and registration of persons in
respect of the Régie de l'assurance maladie du Québec, Section
4 (Accessed 2014-06-11)
16.
ARELC, Section 26(3)
17.
Consultations & hearings on Quebec Bill 52 (hereinafter
"Consultations"), Wednesday, 9 October 2013 - Vol. 43 No. 45:
Quebec Association of
Clinical Ethicists (Delphine Roigt,
Emilia Guévin, Michel
Lorange) T#144
18.
ARELC, Section 26(4)
19. ARELC, Section 26(5)
20. ARELC, Section 26(6)
21.
ARELC, Section 26
22.
ARELC, Section 27
23.
ARELC, Section 26
24.
ARELC, Section 29(1)
25.
ARELC, Section 29(1)a
26.
ARELC, Section 29(1)b
27.
ARELC, Section 6
28.
ARELC, Section 29(1)c
29.
ARELC, Section 29(2)
30.
ARELC, Section 29(1)d
31.
ARELC, Section 29(1)e
32.
ARELC, Section 29(3)
33.
ARELC, Section 30
34.
ARELC, Section 16
35.
ARELC, Sections 34, 35
36.
ARELC, Section 36
37.
ARELC, Section 46
38.
ARELC,
Section 5
39.
Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165
(Accessed 2014-06-24)
40.
Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45:
Professor Joceyln Downie,
T#061, T#085
41.
Consultations, Wednesday, 9 October 2013 - Vol. 43 No. 45:
Professor Joceyln Downie,
T#078. During the hearing, Professor Downie
was referring to the process Bill 52 called "terminal palliative
sedation" - a novel term applied to euthanasia by starvation and
dehydration masked by deep, continuous palliative sedation.
42.
ARELC, Section 13
43.
ARELC, Section
72
44.
Note: in Bill 52, the original section number was 65. Consultations, Wednesday, 25 September 2013 - Vol. 43 no. 38:
Quebec Association for the Right to Die with Dignity
(Hélène Bolduc, Dr. Marcel Boisvert, Dr. Georges L'Espérance),
T#030, T#032
45.
ARELC, Section 36
46.
ARELC, Section 37
47.
ARELC, Section 35
48.
ARELC, Section 33
49.
ARELC, Section 34
50.
ARELC, Section 38
51.
ARELC, Section 39
52.
ARELC, Section 42
53.
ARELC, Section 47
54.
Criminal Code (R.S.C., 1985, c. C-46)
(Hereinafter "CC"),
Section 229;
Section 231(1).
(Accessed 2014-07-25)
55. CC,
Section 229;
Section 231(7)
(Accessed 2014-07-25)
56. CC,
Section 232(1).
(Accessed 2014-07-25)
57. CC.
Section 465.
(Accessed 2014-07-25)
58. CC,
Section 21(b).
(Accessed
2014-07-25)
59. CC,
Section 21(c).
(Accessed
2014-07-25)
60.
CC,
Section 22
(Accessed
2014-07-25)
61.
CC,
Section 464.
(Accessed 2014-07-25)
62.
CC,
Section 245.
(Accessed 2014-07-25)
63.
CC,
Section 465.
(Accessed 2014-07-25)
64.
CC,
Section 21(b).
(Accessed
2014-07-25)
65. CC,
Section 21(c).
(Accessed
2014-07-25)
66. CC,
Section 22.
(Accessed
2014-07-25)
67. CC,
Section 464.
(Accessed 2014-07-25)
68. CC,
Section 231(2).
(Accessed 2014-07-25)
69. CC,
Section 745(a).
(Accessed 2014-07-25)