B2.    Increasing the impact of Carter

B2.3    Doctor shopping
B2.4    No "waiting/reflection" period
B2.5    Physicians need not be present at suicides
B2.6    Euthanasia & assisted suicide in hospitals, hospices, retirement & nursing homes
B2.7    Families and caregivers may not be advised

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B1.    Expanding the Carter criteria

B1.1	"Grievous and irremediable medical condition" includes mental illness  (Recommendations 18, 20: p. 7, 15, 34, 36-37)

B1.1    It has been noted that the term "grievous and irremediable medical condition" is broad enough to include blindness and chronic depression.1 The Experts affirm that it should be understood to mean "a very serious illness, disease or disability that cannot be alleviated by any means acceptable to the patient." Cutting to the chase, this can mean any very serious illness, disease or disability for which a patient refuses treatment.

B1.2  Consistent with Carter, the Experts state that mental illness qualifies (p. 15), which necessarily includes mental illness for which a patient refuses treatment.  This means that physicians should be able to provide therapeutic homicide or suicide precisely because of mental illness. However, the Experts recommend that requests from the mentally ill should receive "heightened scrutiny" to ensure that they are competent to decide whether or not they should be killed or helped to kill themselves.

B1.3    A survey of physicians by the CMA demonstrated that support for euthanasia or assisted suicide among physicians willing to consider providing it can drop by almost 60% if the patient is not terminally ill. Only 14% of responding physicians were willing to consider providing either euthanasia or assisted suicide for someone not terminally ill (Appendix D2.12), and only about 6% of the respondents would consider doing so for psychological rather than physiological suffering (Appendix D2.10).

B1.4    These returns suggest that a large majority of physicians will not be willing to provide therapeutic homicide or suicide for those who are not terminally ill, let alone for those who are mentally ill. Of this group, a significant number may refuse to facilitate euthanasia or assisted suicide for the mentally ill or those not terminally ill through "effective referral" or similar means. Presumably, similar trends would be observed among other health care professionals.

B1.2	Suffering not a prerequisite  (Recommendation 12: p. 6, 30-32, 35)

B1.2.1    The existence of "enduring" and "intolerable" suffering is one of the criteria established by Carter. The Experts acknowledge this requirement, and clearly wish to expedite euthanasia or assisted suicide "when suffering becomes intolerable."

B1.2.2    However, the Experts recommend, in addition, that people who ae not suffering should be able to authorize euthanasia and assisted suicide as long as they have been diagnosed with a "grievous and irremediable medical condition."

B1.2.3    What the Experts suggest is that, upon diagnosis, these patients should be able to have therapeutic homicide and suicide approved in advance, in anticipation of intolerable suffering.2 Since the patient alone determines what constitutes intolerable suffering, the Experts propose that the patient should provide "a very clear statement of what the patient considers or would consider to be suffering that is intolerable." If the patient subsequently becomes incompetent, the physician would kill the patient "when certain conditions that the patient believes would constitute enduring intolerable suffering are met."

The patient's symptoms and/or presentation at the time of the provision of the assistance will need to be assessed against the criteria for intolerable suffering set out by the patient in advance. (p. 32)

B1.2.4    Since actual experience would seem to be necessary to determine whether or not suffering is tolerable, it is by no means clear how a patient (particularly one who is not suffering) can determine this in advance. This is rather like asking a patient to predict whether or not he will regret being killed in accordance with his request.

B1.2.5    In any case, what the Experts recommend would effectively permit therapeutic homicide and suicide authorized by advance directive, on condition that the patient making the directive has been diagnosed with a "grievous and irremediable medical condition."

B1.2.6    But, assuming competence, why make such a diagnosis a condition? Why not let anyone make an advance directive authorizing therapeutic homicide and suicide, even if they are not seriously ill or disabled? The Experts could not agree upon an answer to this question.

Some members of the Advisory Group believe that this is consistent with existing practice with respect to advance directives and so should be permitted, while others believe it is not possible to give informed consent. . . prior to a diagnosis of a grievous and irremediable medical condition.(p. 32)

B1.2.7    The Experts recommended that governments consult further for a year and then update legislation if need be.

B1.2.8    According to CMA surveys, the number of physicians willing to provide euthanasia or assisted suicide appears to range from 6% to 29%, depending upon the condition of the patient, and excluding reference to safeguards. Only about 6% of physicians would consider providing euthanasia or assisted suicide for psychological rather than physiological suffering (Appendix D2.10). However, it appears that such surveys have always proposed or have always been assumed to refer to a scenario involving a patient who is actually suffering, not someone who anticipates suffering some time in the future, so it seems doubtful that the surveys are a reliable indicator of physician support for what the Experts propose.

B1.2.9    A further complication is that the health care professional who receives and approves such an advance directive may not be the person required to lethally inject the patient some time in the future. Particularly in the case of dementia, health care professionals may unwilling to kill a patient on the basis of an advance directive, especially a patient who does not appear to be suffering. This has already been illustrated in the case of Margaret Bentley.3

B1.3	Competence not a prerequisite: euthanasia for dementia (Recommendation 12: p. 29-31)

B1.3.1    According toCarter, only a patient who is competent can give consent for therapeutic homicide and suicide. The Experts recommend that the requirement for competence be limited to the point at which the patient consents by signing an approved declaration. As explained above, that would allow competent patients to authorize euthanasia or assisted suicide even if they subsequently became incompetent.

B1.3.2    The Experts argue that this is would be particularly advantageous for people diagnosed with dementia or other degenerative diseases, who would thus be able to authorize euthanasia in advance, at a point of their choosing, even if they are not competent when the time comes to kill them.

B1.3.3    What would happen if, after becoming incompetent, such a patient does not appear to be suffering, or wants to live?

B1.3.4    The Experts seem not to have considered this question.

B1.3.5    Certainly, the Experts state that a patient can, at any time, revoke or withdraw a request for therapeutic homicide or suicide. However, this is the only direct statement made by the Experts about revocation or withdrawal of a request in the sixty page document,4 and the context suggests that it refers to a competent patient.

B1.3.6    Assuming that an advance directive made when a patient is competent is binding, the Expert recommendation implies that an advance directive authorizing euthanasia that is signed by a competent patient becomes an irrevocable death warrant when the patient becomes incompetent.   It also implies that health care professionals may be expected to lethally inject incompetent patients who do not appear to be suffering or who want to live (B1.2.9).

B1.3.7    While the CMA has not surveyed physicians about their willingness to execute advance directives by killing dementia patients who are not suffering or want to live, existing returns suggest that such an expectation would make conflicts of conscience among health care professionals more prevalent.

B1.4	Euthanasia and assisted suicide for children and adolescents (Recommendation 17: p. 29, 34)

B1.4.1    The Supreme Court of Canada authorized euthanasia and assisted suicide for adults. The Experts reject what they call "arbitrary age limits." They argue that euthanasia and assisted suicide should be provided to children and adolescents who are judged competent to decide whether or not their lives are worth living, given the suffering they may experience from incurable illness or disability.

B1.4.2    A National Post article incorrectly reported that the recommendation was limited to "terminally ill" children; it is not. The co-chair of the Advisory Group has stated that a 12 year old child could make that decision, though not a five or seven year old. The Experts acknowledge that parents would not be able to prevent their children from being killed or helped to kill themselves.5

B1.4.3    It is important to consider this recommendation within the context of the others. When those recommendations are taken into account, what the Experts recommend is that

• euthanasia should be available to children and adolescents with serious and incurable medical conditions, including mental illness, as soon as they consider their suffering intolerable;
• competent children and adolescents should be able to authorize euthanasia and assisted suicide by advance directives, defining in advance what they would consider to be "intolerable suffering," so that they can be lethally injected if they are judged to be incompetent when the defined circumstances exist;
• euthanasia and assisted suicide for competent children and adolescents should not be delayed by waiting or reflection periods;
• parents would not be advised of plans to kill their children or assist with their suicide if their children did not want them to know.

B1.4.4    By making unqualified recommendations for euthanasia and assisted suicide for children and adolescents, the Experts go further than the Supreme Court of Canada, but also further than the successful appellants in Carter. The appellants asked the court to strike down the law to the extent that it denied therapeutic homicide and suicide to competent adults. They did not argue that 18 years old was a mere "arbitrary age limit." On the contrary, during his oral submission, Joseph Arvay said:

For those born with a disability, it is not likely they will be vulnerable. They will have had years to adapt to their disability. And even if some may not, by the time they turn 18, any decision they make will be a very considered decision. It will not be an impulsive decision.6

B1.4.5    Conflicts of conscience among health care professionals are likely to be more prevalent in the face of demands that they participate in providing euthanasia and assisted suicide for children and adolescents, particularly in the case of the disabled or mentally ill, in the face of parental opposition, or when they are expected to conceal the cause of death from parents.

B1.5	Assessment, euthanasia and assisted suicide by non-physicians (Recommendation 7, 8, 22: p. 22, 25-26, 38)

B1.5.1    The Experts note that others, including nurses and pharmacists but also "personal support workers," may have a role to play in assisting physicians who provide euthanasia and assisted suicide. They recommend that the Criminal Code be revised to exempt such assistants from prosecution. Strictly speaking, this does not seem necessary, since they would not be liable to prosecution as parties to an offence for assisting with what would not be an offence to begin with.

B1.5.2    However, the Experts also recommend that the Criminal Code be amended to allow nurse practitioners to give lethal injections or provide lethal prescriptions, and to allow registered nurses and physician assistants acting under the direction of physicians to do so. Further, they recommend that nurse practitioners and health professionals (the latter working under the direction of physicians) be allowed do everything that is required in processing and fulfilling euthanasia/assisted suicide requests, including the second independent assessment of patient eligibility.

B1.5.3    The Experts also envisage a "personal support worker" giving a patient the lethal medication used for assisted suicide (p. 25). The term would cover a wide range of regulated and unregulated occupations, including personal care aides and group home supervisors.

B1.5.4    All of this is necessary, the Experts say, to ensure that "scope of practice legislation does not create barriers" to euthanasia and assisted suicide.

B1.5.5    Should these recommendations be adopted, it would seem that the term "physician-assisted" would no longer be appropriate.

B1.5.6    Allowing non-physicians to provide assisted suicide and euthanasia would increase the likelihood of disagreement and conflicts of conscience among other health care professionals who would not otherwise be directly or indirectly involved.  On the other hand, it might relieve some of the pressure on objecting physicians to become directly or indirectly involved in the services.

B2.    Increasing the impact of Carter

B2.1    The Supreme Court confined itself to setting the eligibility criteria for assisted suicide and euthanasia. It gave no direction as to safeguards or as to how or where the services were to be provided.

B2.2    A number of the Experts’ recommendations thus do not go beyond what is required in Carter, but, nonetheless, have implications that increase its impact.

B2.3	Doctor shopping (Recommendation 25: p. 39)

B2.3.1    The Experts recommend that competent patients who have been found ineligible for euthanasia and assisted suicide should be allowed to look for a physician willing to declare them eligible. Similarly, should a physician providing a second opinion conclude that a competent patient is ineligible, the Experts recommend that the primary attending physician should be able to seek a different opinion from another physician.

B2.3.2    The practice recommended by the Experts is allowed in the Netherlands. The Levenseinde Kliniek (End of Life Clinic) in Amsterdam was established in 2012 by a Dutch euthanasia advocacy group (Right-to-Die-NL).7 It responds only to requests for euthanasia from patients whose applications for euthanasia have been rejected by their own physicians,8 so it is the paradigm for euthanasia "doctor shopping."  As noted below (B2.4.5), the Clinic has been twice reprimanded by the euthanasia oversight committee for failing to exercise proper care, and some pharmacists have refused to provide euthanasia drugs to Clinic physicians because they did not believe that euthanasia was appropriate for a particular patient.

B2.3.3    During its first year of operations, the Clinic granted euthanasia or assisted suicide requests for 162 patients, whose suffering consisted of one or more of the following (in order of occurrence):

• physical decline or loss of strength;
• tiredness
• loss of autonomy
• loss of dignity
• psychological suffering
• loneliness
• shortness of breath
• loss of sensory functions
• loss of mental capacity

Other kinds of suffering identified by the patients but not statistically significant were pain, loss of capacity to maintain social contacts, detachment, nausea, hopelessness, bedridden and confusion. (The same suffering was identified by the 300 patients whose requests were refused).9

B2.3.4    The study providing this information was one of two described by two American commentators as "well done but contain[ing] gaps" and indicative of "worrisome trends." They stated that the research and other reports suggested that the 'slippery slope' argument "be taken very seriously."10 This was disputed by the lead author of the study.11

B2.3.5    Leaving that point aside, CMA surveys of physicians suggest that the majority of Canadian physicians would be unwilling to participate in euthanasia or assisted suicide in the circumstances described in the study. (Appendix D2.14) Conflicts of conscience among health care professionals asked or ordered to participate in euthanasia and assisted suicide are more likely if they suspect that doctor shopping has compromised the process leading to an authorization to kill a patient.   

B2.4	No "waiting/reflection" period (Recommendation 26: p. 40-41)

B2.4.1    The Experts believe that "at least some time" should pass between a request for euthanasia or assisted suicide and its execution, but they rejected the idea that "a set amount of time"should be imposed because that would, in their view, "impose an arbitrary barrier to access that would negatively impact both patient decision-making and physician judgement."

B2.4.2    The Canadian Medical Association is of the view that the waiting time should be "proportionate to the patient's expected prognosis," but recommends that a minimum of 14 days should normally pass between a first and second request for euthanasia or assisted suicide, and recognizes that longer periods may be appropriate.12

B2.4.3    The Experts demonstrate an enthusiasm for therapeutic homicide and suicide that appears to surpass that of the lead lawyer representing the appellants in Carter. Speaking from his wheel chair during his oral submission to the Supreme Court of Canada, Joseph Arvay considered the need for "waiting periods," at least in some circumstances.

And then I think about those who may be disabled in the prime of their life because of a car accident or a diving accident. And many of those may say, as soon as that happens, "I want to die," and that's an understandable reaction. But it makes sense for those people to impose a fairly long waiting period. Maybe a matter of years before we allow them to seek and obtain assistance in dying. Because our collective experience tells us that most of them, almost all of them, will, too, adapt, although some might not and we have to respect their decision.13

B2.4.4    The Levenseinde Kliniek (End of Life Clinic) in Amsterdam receives a notable increase in requests for "emergency euthanasia" during the holiday season, which pushes all employees to the limit to process the applications to provide the service. The Director of the Clinic states that the process can be reduced "to a very short time" so that requests can be quickly handled. He admits that this is "absolutely undesirable (absoluut onwenselijk)," but insists that "care remains paramount (blijft zorgvuldigheid voorop staan)" and that one must "help people in need (Mensen in nood moet je helpen)."14 Clearly, a minimum waiting period would interfere with the processing of euthanasia requests during a Christmas rush.

B2.4.5    On the other hand, the Clinic has been twice reprimanded by the euthanasia oversight committee for failing to exercise proper care: once for killing an elderly woman whose medical conditions included anorexia nervosa, posttraumatic stress disorder, anxiety disorder, and depression,15 and once for killing an elderly stroke victim who was said to be "suffering unbearably" because she did not want to live in a nursing home.16 In April, 2014, physicians at the Clinic complained that pharmacists were refusing to provide them with euthanasia drugs, mainly because they did not believe that euthanasia was appropriate for a particular patient. Most refusals involved patients with dementia, psychiatric illness, or who simply considered their lives complete and wished to die.17

B2.4.6    Conflicts of conscience among health care professionals are likely to be more prevalent in the absence of a waiting/reflection period, particularly in the circumstances described by Joseph Arvay and prevailing, at times, in the Levenseinde Kliniek: especially in the case of children, adolescents and the mentally ill.

B2.5	Physicians need not be present at suicides (Recommendation 28: p. 41)

B2.5.1    The Experts recommend that physicians, nurse practitioners or others who prescribe lethal medication should not be required to be present when the patient ingests it: "The patient should have the right to choose who is present at the time of their death."

B2.5.2    The Experts acknowledge that complications and adverse effects are more likely in suicides, but state that an informed patient is entitled to take the risks. Physicians, they say, should simply "provide instructions on how to respond."

B2.5.3    What the Experts left unclear is what should be done if the patient is incapacitated but not killed by the medication.

B2.5.4    If the patient decides to take the medication without anyone else present, it appears that the Experts' position is that, having made an informed choice, the patient has made his bed and should (eventually) die in it, or suffer until he is found.

B2.5.5    If family, friends or others are present, the Experts appear to assume that they will have been instructed to call a physician, nurse practitioner, etc. to kill the patient by lethal injection. One hopes that they will not attempt to kill the patient themselves, since the Carter ruling provides no immunity from prosecution for them, nor have the Experts suggested it.

B2.5.6    Conflicts of conscience may arise among health care professionals who are expected to provide lethal prescriptions for assisted suicide, but who consider it unethical or at least imprudent to absent themselves when the drug is taken, particularly in the case of patients who are mentally ill. In addition, conflicts of conscience may be experienced by health care professionals who are called upon to lethally inject a patient who has not been killed by the prescribed medication, particularly if they have had no previous involvement in the case.

B2.6	Euthanasia & assisted suicide in hospitals, hospices, retirement & nursing homes, etc.  (Recommendation 27: p. 41)

B2.6.1    The Experts recommend that euthanasia and assisted suicide should be provided, not only in health care institutions or facilities, but "wherever patients live" if that is their wish. This may include "a retirement facility, nursing home or hospice" and "hospitals, long term care facilities and at home."18 The Experts offer these only as examples, not as an exhaustive list.  "Wherever patients live" includes group homes, assisted living facilities and any kind of residential care facility.

B2.6.2    The Experts exempt "conscientiously objecting facilities" from this requirement, but the exemption will be available only to a small minority of facilities, and even then it is not a total exemption. (Appendix C1.)

B2.6.3    It will be difficult for health care professionals, care aides, personal support workers etc. who do not want to be involved with euthanasia and assisted suicide to find work anywhere in Canada where they can be sure that they will not be required to be involved with the procedures, or at least expected to stand by while patients or residents they know are killed or helped to commit suicide.

B2.7	Families and caregivers may not be advised (p. 29)

B2.7.1    While no formal recommendation is made with respect to the involvement of families and caregivers, the Experts note that families and caregivers may be advised "if the patient is willing and agrees." This means that patients may be killed or helped to commit suicide without the knowledge of their families, which would seem to require at least some dissembling or duplicity on the part of health care professionals involved. 

B2.7.2    Conflicts of conscience are likely to be more prevalent among health care professionals who are uncomfortable lying or dissembling to families, and those who object to euthanasia who are not directly involved will almost certainly consider participation in deception to involve unacceptable complicity in killing, even if it occurs after the fact.

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Notes:

1. Santi N.  "From Courtroom to Bedside - A Discussion with Dr. Jeff Blackmer on the Implications of Carter v. Canada and Physician-Assisted Death."  UOJM Volume 5, Issue 1, May 2015 (Accessed 2015-07-04).

2.  Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Final Report (30 November, 2015) (Hereinafter "Report"), p. 29, completion of declaration before suffering is experienced.

3.  Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (Accessed 2016-01-02) 

4.  Report, p. 29.  At p. 36 the Report quotes a paragraph from Federation of Medical Regulatory Authorities guidance that includes reference to the patient's right to "rescind" a request.  The Report refers at p. 7, 33 and 59 to an oversight system that tracks outcomes, including "withdrawal" of requests.

5.  Kirkey S. "Terminally ill children as young as 12 should have euthanasia choice, expert panel urges." National Post, 14 December, 2015 (Accessed 2016-01-01).

6.  Supreme Court of Canada, 35591, Lee Carter, et al. v. Attorney General of Canada, et al.(British Columbia) (Civil) (By Leave) Webcast of the Hearing on 2014-10-15: Oral submission of Joseph Arvay (hereinafter "Arvay") 77:16 | 491:20 - 77:37 | 491:20 (Accessed 2015-10-28).

7.  Connolly K. "Dutch mobile euthanasia units to make house calls. New scheme called 'Life End' will respond to sick people whose own doctors have refused to help them end their lives at home." The Guardian, 1 March 2012 (Accessed 2013-11-15).

8.   Levenseinde Kliniek (Accessed 2015-12-19).

9.  Snijdewind MC, Willems D, Deliens L. Onwuteaka-Philipsen BD, Chambaere K. "A Study of the First Year of the End-of-Life Clinic for Physician-Assisted Dying in the Netherlands." JAMA Intern Med 2015 Oct;175(10):1633-40. doi: 10.1001/jamainternmed.2015.3978

10. Lerner BH, Caplan AL. "Euthanasia in Belgium and the Netherlands: On a Slippery Slope?" JAMA Intern Med. 2015 Oct;175(10):1640-1. doi: 10.1001/jamainternmed.2015.4086.

11.  The JAMA Network Speciality Author Interviews, "Interview with Marianne C. Snijdewind, MA;, author of A Study of the First Year of the End-of-Life Clinic for Physician-Assisted Dying in the Netherlands, and Barron H. Lerner, MD, PhD, author of Euthanasia in Belgium and the Netherlands: On a Slippery Slope?" (Accessed 2015-01-02).

12.  Canadian Medical Association,  Principles-based Recommendations for a Canadian Approach to Assisted Dying (2016) p. A2-3, A2-4 (Accessed 2015-12-18)

13.  Arvay, 77:37 | 491:20 to 78:17 | 491:20 (Accessed 2015-10-28).

14. Levenseindekliniek, Steeds meer kankerpatiënten bij Levenseindekliniek (More and more cancer patients at End of Life Clinic) (23 July, 2015) (Accessed 2015-12-19).

15.  Levenseindekliniek, Oordeel van de Regionale Toetsingscommissie Euthanasie (Judgement of the Regional Euthanasia Review Commitee) (19 January, 2015) (Accessed 2015-12-19).

16.  DutchNews.nl "Euthanasia clinic reprimanded for death of stroke victim."27 August, 2014. (Accessed 2015-12-19).

17.  DutchNews.nl, "Pharmacists sometimes refuse to give doctors euthanasia drugs." 16 April, 2014 (Accessed 2015-12-19).

18.  Report, p. 41.