CONTENTS

General

Eligibility Criteria

Procedureal Safeguards

Role of Physicians

Role of Other Healthcare Providers

Conscientious Refusals by Healthcare Providers

Role of Institutions

Access

Settings

Additional Supports

Additional Input

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General

Question 1

What are your organization's thoughts on the Supreme Court of Canada's decision in Carter v. Canada (Attorney General)?

Response 1

The Project's concern is that the decision should not be interpreted to subvert freedom of conscience by being used as an excuse to compel individuals to do what they believe to be wrong, or by punishing, discriminating against or otherwise disadvantaging those who refuse.

Question 2

In general, should provinces and territories develop new legislation or regulations to govern the provision of physician-assisted dying (PAD) or should the regulation of PAD be left to regulatory bodies (e.g., professional colleges) and/or individual physicians and patients?

Response 2

Neither. The Carter decision provides an exemption to criminal prosecution, which is federal jurisdiction. The law that details the terms of the exemption should, in the first instance, take the form of amendments to the Criminal Code re: homicide, suicide etc. Once the criminal law is clear, provinces and regulators can work within that common framework. This should reduce legal uncertainties or conflicts likely to exacerbate difficulties in ensuring protection for freedom of conscience. (See Response 4.)

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Eligibility Criteria

Question 3

In the Supreme Court of Canada's decision, it was determined that, in certain circumstances, a "competent adult" must not be prohibited from accessing PAD.

• What should the definition of "adult" be?
• Should the competency requirement apply at the time of request for PAD or at the time of provision of the assistance, or both?

See Appendix 1 for additional information.

Reponse 3

Outside the scope of Project interests.

Question 4

The Supreme Court of Canada's decision limits PAD to those who have a "grievous and irremediable medical condition".

• What does "grievous and irremediable medical condition" mean to your organization?
• Should the term "grievous and irremediable medical condition" be defined in the provincial/territorial legislation or regulation?
• Should specific medical conditions be defined in law or should it be determined in each case by the patient and their physician? If the medical conditions should be defined
  in law, what medical conditions should be included?

See Appendix 2 for additional information.

Response 4

Generally speaking, the greater the range of circumstances in which euthanasia or assisted suicide may be provided, the greater the temptation to suppress or restrict freedom of conscience, and the greater the likelihood of conflicts of conscience.

For this reason, from the Project perspective, it would be best to have the term "grievous and irremediable medical condition" defined by statute, and the definition should be as narrow as possible, consistent with the Carter ruling.

Since the Carter ruling deals with criminal law, the definition should be included in a section of the Criminal Code setting out the circumstances in which the exemption from criminal prosecution applies.

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Procedural Safeguards

Question 5

The Supreme Court of Canada's decision limits PAD to a competent adult person who "clearly consents to the termination of life".

What processes should be put in place to ensure that the consent to PAD is informed?
(e.g., what information should have to be provided to the patient? Who should provide
the information?)

See Appendix 3 for additional information.

Response 5

Outside the scope of Project interests.

Question 6

What processes should be put in place to ensure that the consent to PAD is voluntary?

Response 6

Outside the scope of Project interests.

Question 7

What processes should be put in place to ensure that the person requesting PAD is competent? For example:

• Who should conduct the competency assessment(s)?
•  Should an assessment by a psychiatrist or psychologist be required in any or all cases? If some, which ones?)

Response 7

Outside the scope of Project interests.

Question 8

How many physicians should be required to confirm that the eligibility criteria have been met? Must they be from any particular specialities? Must they be independent of one another? If so, what should be the definition of independent for these purposes?

Response 8

In general, the fewer the number of physicians who have to be involved in each case, the less the likelihood of conflicts of conscience arising, and the less the pressure to suppress freedom of conscience.

Question 9

Should a waiting period (sometimes called a "cooling off period") be established between the request and the provision of PAD? If so, how long should the waiting period be? Should the waiting period vary based on the medical condition?

Response 9

Outside the scope of Project interests.

Question 10

What should be the formal requirements for a patient's request for PAD? (e.g., should requests be written or can they be oral? Should witnesses be required?)

Response 10

Outside the scope of Project interests.

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Role of Physicians

Question 11

What is the appropriate role of physicians in physician-assisted dying? For example:

• Should a physician's role be to actively administer the medication that causes death
  if requested to do so by a patient who meetsthe eligibility criteria?
• If an eligible patient prefers, and has the ability, should a physician's role be to prescribe the lethal medication which the patient would then administer themselves?
• Should physicians always remain with the patient until the time of death?

Response 11

The Carter ruling seems to exempt only physicians from prosecution, but the exemption would presumably extend to anyone who is a party to the act. The following should reduce the likelihood and extent of conflicts of conscience. See Submission, Part III.1.

The physician who approves assisted suicide or euthanasia should personally administer or provide the lethal drug, and should remain with the patient until death ensues.

Should the lethal drugs not act as expected (for example: incapacitate the patient but not cause death), this physician will be responsible for responding to the situation as per the instructions of the patient received during discussions preliminary to the act.

This physician should personally notify next of kin if the next of kin is unaware that the patient has been killed or helped to commit suicide.

None of this should be delegated to anyone else.

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Role of Other Healthcare Providers

Question 12

What is the appropriate role of non-physician regulated health care professionals in the provision of PAD?

Response 12

If they are involved, it should be only as self-identified volunteers. A requirement for complicity in killing patients or assisting with suicide should not be a requirement for employment, education, etc.

Question 13

Should non-physician regulated health care professionals (e.g., Registered Nurse, Nurse
Practitioner) acting under directives from a physician be allowed to fulfil a request for PAD?

Response 13

 See responses 11 and 12.

Question 14

14) See Responses 11ulated health workers in the provision of PAD?

Response 14

14) See responses 11, 12 and 13.

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Conscientious Refusals by Healthcare Providers

Question 15

Should physicians have the right to refuse to provide PAD for reasons of conscience? If yes:

• What continuing obligations, if any, do they have to the patient?
• Does the right to refuse include the right to refuse to provide an effective referral for PAD?

See Appendix 4 for additional information.

Response 15

According to the text of the Carter ruling, the unequivocal answer to this answer is "Yes."

That the panel should even ask this question is strongly suggestive of bias inconsistent with the ruling.

Physicians have an obligation to provide continuity of care with respect to other aspects/kinds of treatment.

They have NO obligation to provide an "effective referral" if they believe that doing so makes them unacceptably morally complicit in homicide or suicide.

See Submission, Part III.2 and Appendix "B"

Question 16

Should non-physician regulated health care professionals (e.g., Registered Nurse, Nurse
Practitioner, Pharmacist, etc.) have the right to refuse to participate in the provision of PAD for reasons of conscience?

•  If so, under what circumstances?

Response 16

According to the Carter ruling, the unequivocal answer to this answer is "Yes." Only physicians are explicitly exempted from prosecution if they kill patients or help them commit suicide within the terms of the ruling, and the ruling explicitly states that they are not obliged to do so.

Nothing in the ruling suggests that other health care workers have a duty to participate. That the panel should even ask this question is strongly suggestive of bias inconsistent with the ruling.

Other health care workers may refuse to participate under all circumstances in which they believe that what is required of them makes them unacceptably morally complicit in homicide or suicide.

They are obliged to provide continuity of care with respect to other aspects/kinds of treatment.

They have NO obligation to find substitutes if they believe that doing so makes them unacceptably morally complicit in homicide or suicide.

See Submission, Part III.2 and Appendix "B"

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Role of Institutions

Question 17

What is the appropriate role of health care institutions (e.g., hospitals, hospices, long-term care facilities, etc.) in making PAD services available to patients?

Response 17

 Institutions that do not wish to be involved in killing patients or helping them to commit suicide should not be obliged to do so, nor obliged to allow it on their premises, nor obliged to arrange for it by other institution

Question 18

On what issues in particular does your organization feel that health institutions need specific guidance - through legislation, regulation, or guidelines - for the implementation of PAD services?

Response 18

Accommodation of those unwilling to be involved in killing patients or helping them to commit suicide.

They should identify employees willing to respond to family members whose loved ones have been killed or helped to commit suicide without their knowledge. Employees should not be put in the position of having to defend or support something they believe to be wrong.

This is distinct from the obligation of the attending physician in these circumstances to personally notify the next of kin (See Response 11).

Question 19

Should health care institutions be required to provide PAD at their facility? If yes, please explain why. If no, under what circumstances and what responsibility should the institution have to ensure patients have access to PAD?

Response 19

No. An objecting institution should notify patients of its policy at the time of admission and advise the patient that the services may be obtained elsewhere.  After admission, it should transfer the patient and/or records as requested by the patient or the patient's agent.

Question 20

What should be the responsibility of the health care institution to the patient when a physician within the facility refuses to provide PAD for reasons of conscience and/or provide an effective referral for PAD in a case where the requesting patient meets the eligibility criteria?

Response 20

First, see Response 19. The following arrangements would reduce the likelihood of conflicts of conscience.

If the institution wishes to provide euthanasia and/or assisted suicide, the institution should provide patients/patient agents with information about how to obtain the services should the attending physician refuse to do so.

The information could be provided by designated willing hospital employees. Alternatively, some provinces (like Nova Scotia) have patients rights advocates who are independent of institutions who might be willing to provide the information.

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Access

Question 21

What barriers to access do you foresee that will need to be addressed in implementing PAD? In what ways do you think these barriers could or should be reduced?

Where access to PAD is limited by these barriers, what steps should be taken to facilitate access for patients seeking the service?

Response 21

It appears that only a minority of physicians are willing to provide even where this has been legal for years.

It also appears most people don't want to be involved in homicide or suicide.

To avoid adverse effects on freedom of conscience, those who want to provide the services should identify themselves to medical regulators and/or others or to a central agency so that they can be contacted easily by anyone seeking the services.

Question 22

What unique implementation issues, if any, do you foresee for PAD in rural or remote settings? How should they be addressed?

Response 22

See Response 21. Otherwise, outside the scope of Project interests.

Question 23

How could and should provincial/territorial governments ensure equitable access to PAD?

Response 23

Outside the scope of Project interests.

Question 24

If it is determined that a patient is ineligible for PAD, should the patient have a right to appeal that decision? If so, what process should be used and to whom should the appeal be directed?

Response 24

Outside the scope of Project interests.

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Settings

Question 25

In what health care settings should PAD be provided?

See Appendix 5 for additional information.

Response 25

Outside the scope of Project interests.

Question 26

If PAD were provided at home, what implementation issues would this raise? How should they be addressed?

Response 26

Outside the scope of Project interests.

Question 27

Are there other implementation issues related to the settings in which PAD might be provided that need to be addressed?

Response 27

Outside the scope of Project interests.

Question 28

What reporting (including documentation) should be required of the physician following the provision of PAD? How should this reporting be done? Who should receive the reports?

See Appendix 6 for additional information.

Response 28

Reports should not involve falsification of the cause of death or classification of the death as natural causes. Requirements for deception make conflicts of conscience more likely among a broader range of people not otherwise implicated in euthanasia and assisted suicide.

Question 29

Should there be a review of each case of PAD? If yes:

• Should it be undertaken before or after the assistance is provided?
• Who should undertake the review?
• What standards (e.g., clinical, professional, legal) should be used in the review?
• To whom should the reviewer(s) report any findings of non-compliance with the standards?

If there should be no review, why not?

Response 29

See Response 28. Beyond that, outside the scope of Project interests.

Question 30

Should an oversight body be established? If yes:

• Should it be national or provincial/territorial?
• Should it be administered by government or by regulatory bodies?
• What role and responsibilities should it have?
• What should its composition be, in terms of the number of members and their backgrounds?
• What should be its obligations for public reporting and quality improvement?
• What other considerations are relevant to an oversight system, process, or body?

Response 30

Outside the scope of Project interests.

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Additional Supports

Question 31

What, if any, educational materials should be developed for and provided to physicians and other health care providers? Who should be responsible for developing these materials (e.g., provincial/territorial governments, professional bodies, provincial Colleges of Physicians and Surgeons)?

Response 31

Outside the scope of Project interests.

Question 32

Should an independent organization be established to support physician practice (e.g., information, training) and/or facilitate patient access to PAD services?

•  If so, who should establish it? What should it be tasked to do?
•  If not, what organization(s) should assume this responsibility?

Response 32

In the Project's experience, most of those unwilling to provide or facilitate euthanasia or assisted suicide would be willing to provide information to patients about the kind of agency described below. This would minimize pressure adverse to freedom of conscience in health care.

Establish an agency that does not arrange for euthanasia or assisted suicide that would provide information to make patients aware of their legal options, assist them in making an informed decision, and provide information about services nearest them. The Ministry of the Attorney General /Justice in each province should be responsible.

The 24/7 free Brydges Counsel telephone service maintained in every jurisdiction for prisoners in custody anywhere in Canada (including remote areas) could easily be used at least as an initial portal for this purpose. All that would be required is instruction and resources for the lawyers manning the phones.

Question 33

What other resources should be developed to support physicians and other health care providers in relation to PAD?

Response 33

Outside the scope of Project interests.

Question 34

What resources should be developed to support patients and their families/caregivers in relation to PAD?

Response 34

See Response 32.

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Additional Input

Question 35

Is there anything else, not covered above, that your organization considers relevant to the
implementation of PAD? Please use this space or attach additional comments to your e-mail response.

Response 35

See balance of submission.

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