Update: The Supreme Court Ruling on Physician-Assisted Death

May 2015   Comments

The Carter decision presents a profound change to Canadian law. What does the decision mean for nurses?

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It is a crime in Canada to assist another person in ending his or her own life. However, the Supreme Court of Canada created an exception, after analyzing Canadian constitutional law in the case of Carter v. Canada (Attorney General), released at the beginning of February 2015. The Supreme Court declared that the prohibition in section 241(b) of the Criminal Code on assisting with suicide is unconstitutional to the extent that it prevents physician-assisted death for “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

In creating this exception, the Carter decision represents a profound change to Canadian law. Nurses may now expect to receive more questions from patients and their families related to end-of-life care. It is important for nurses to understand the law and professional nursing standards relating to end-of-life care as they currently exist and as they may develop.

The Carter ruling will take effect on Feb. 6, 2016. The Supreme Court suspended the operation of its ruling to allow the federal government time to consider its response to the judgment. The federal government has several options: invoke the Charter section 33 “notwithstanding clause” to suspend the operation of the Carter ruling for five years; amend the Criminal Code, section 241(b), to align with the Carter ruling; or do nothing. If the federal government chooses the latter, the Carter ruling will be the law in Canada. Provincial and territorial governments and health profession regulatory bodies are aware of the Carter decision and may already be preparing their own responses to it, but the federal government’s decision will be important and relevant to their responses.

As we await the federal government’s response, it is important to keep in mind that all health-care professionals are to continue to provide quality end-of-life care, just as they did prior to the Carter decision, and to comply with the existing law about assisted death until the Carter decision is implemented next February. This is because the Supreme Court specifically declined to create a mechanism for exemptions to Criminal Code section 241(b) during the 12-month period that ends Feb. 6, 2016.

What is the potential impact?
It is important to note that the Carter decision does not change the important work that nurses currently provide for patients at the end of life. CNA’s Code of Ethics for Registered Nurses states that when patients are terminally ill or dying, nurses “foster comfort, alleviate suffering, advocate for adequate relief of discomfort and pain, and support a dignified and peaceful death.” They should continue to follow the code and their professional standards of practice.

Physician-assisted death is to be made available, in very narrow circumstances, as a patient initiative for competent, adult persons with unrelenting suffering. In the words of the Supreme Court, “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.” Accordingly, the clinical and ethical principles that guide the provision of end-of-life care continue to apply. Physician-assisted death is different from withholding or withdrawing futile or unwanted medical treatment and from the provision of palliative care. These practices remain lawful and important components of end-of-life nursing care across Canada.

Nurses are often the health-care professionals with whom patients choose to discuss end-of-life care. Once the Carter ruling comes into effect, nurses will remain involved in these discussions with the patient, family and health-care team, some of which will include a patient exploring the idea of physician-assisted death. Nurses will continue to provide patients with relevant information to the best of their ability. It can be anticipated that there will be times when a nurse will communicate to other members of the care team as quickly as possible — for example, when an eligible patient is seeking physician-assisted death or when an eligible patient had requested physician-assisted death but has changed his or her mind.

Although the Supreme Court’s decision specifies physician-assisted death, there may be additional implications for nurses. For example, could new legislation or professional standards permit nurses to administer medication ordered by a physician for this purpose? Would it require nurses to care for or monitor patients following the administration of medication? Also, with the scope of practice of nurse practitioners expanding, is it possible that, in the future, they could be expected to assess a patient’s ability to decide to end his or her life and administer care accordingly?

What are the ethical implications?
Once the ruling is in effect, nurses will have to determine whether their own ethical or religious values are consistent with providing care to a patient who has made the choice to end his or her life. The Supreme Court was clear that a physician’s decision to participate in assisted dying is a matter of conscience and religious beliefs. The Charter rights of both patients and physicians must be reconciled.

Health profession regulatory bodies and health-care facilities will likely develop policies and protocols to address conscientious objections by health-care providers. If an eligible patient chooses to end his or her life by physician-assisted death, nurses must be prepared to provide for the patient’s care needs. The code of ethics contains information on ethical considerations in addressing patient expectations that are in conflict with one’s conscience. However, it states, “the nurse provides safe, compassionate, competent and ethical care until alternative care arrangements are in place to meet the person’s needs and desires.”

What should nurses do now?
In this period of suspension of the Carter ruling, nurses should carefully document any discussions they have with the patient, family members or other health-care providers about end-of-life questions and decisions.

In light of the sensitive, intensely personal nature of this issue, concern for the privacy of patients requesting assisted death will be essential. A patient’s wishes regarding the extent and timing of disclosure to family members and friends will have to be carefully considered and respected by nurses involved in end-of-life care.

Nursing regulatory bodies, nursing associations, and nursing interest groups will be assessing what, if any, formal direction they will offer their member nurses as a result of the Carter decision. A nurse may decide to become involved in such professional initiatives to help prepare the nursing profession for its role in physician-assisted death.

Lawmakers, health profession regulators and health-care providers will grapple with the ethical and practical issues surrounding assisted death for the next nine months and beyond. As new legislation, case law and professional standards develop, it is key for nurses involved in end-of-life care to remain informed of the changing legal and professional landscapes. The Canadian Nurses Protective Society will monitor these developments, and its legal advisors are available to provide advice to CNPS beneficiaries with respect to legal issues involving end-of-life care.

The Canadian Nurses Protective Society

The Canadian Nurses Protective Society (CNPS®) is a not-for-profit society that offers legal advice, risk management services, legal assistance and professional liability protection related to nursing practice to eligible registered nurses and nurse practitioners. For more information about CNPS services and benefits, contact CNPS at 1-844-4MY-CNPS or visit cnps.ca.

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