Medical assistance in dying: What can nurses expect after June 6?

May 2016   Comments

Canadian Nurse asked Canadian Nurses Protective Society CEO Chantal Léonard to discuss what may be coming with new medical assistance in dying legislation and how it will affect RNs

Media has thoroughly covered physician-assisted death in the aftermath of the Carter v. Canada decision, when the Supreme Court of Canada declared section 241(b) and section 14 of the Criminal Code are unconstitutional

insofar as they prohibit 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.

Federal and provincial policy-makers and legislative drafters have been hard at work, contemplating how to provide the best legislative framework for patients and health-care providers with respect to assisted death. The following are some of the questions nurses can expect to have answered by June 6, when all this work must be completed. The answers in this article are as of the time of production for this issue of Canadian Nurse (mid-April). With the approaching deadline, work is progressing — and things are changing — quickly. Regular updates are available at cnps.ca and cna-aiic.ca.

The special joint committee did not use the phrase physician-assisted death, recommending the phrase medical assistance in dying (MAID), which reflects the broader involvement of the health-care team. I will use the phrase MAID in this article.

How will the Criminal Code clarify that MAID is not a criminal act?

Because assisted suicide is currently prohibited in the Criminal Code, the federal government is expected to amend the code to exempt MAID under specific circumstances. However, the question remains to what extent the exemption will take into account the role of all members of the treatment team.

The CNPS has recommended that the wording of this exemption make it clear that nurses and other health-care professionals helping provide MAID would not be committing a criminal offence when they are acting within the scope of their practices. The special joint committee endorsed that recommendation in its report.

Another important question is whether the Criminal Code will be amended to clearly stipulate that providing information and professional advice to patients about MAID is also not an offence. Currently, the Criminal Code makes it in an offence to counsel a person to commit suicide. As nurses and other health-care professionals provide information and professional advice, they may chart discussions about MAID as counselling or counsel. Given the Supreme Court’s determination that MAID is a form of suicide, it would be best to stipulate in the Criminal Code amendment that discussing a patient’s wishes in relation to MAID is not counselling to commit suicide.

Who will be able to provide assisted death or participate in the provision of MAID?

In carving out an exemption in the Criminal Code, the federal government will have to define MAID. From this definition, it will be possible to determine how nurses may participate within their scope of practice. Within this new framework, regulatory bodies will likely provide further direction, in the form of standards of practice, position statements or guidelines. Regulators may also impose certain conditions on the participation of nurses. Accordingly, nurses will be encouraged to turn to their regulatory bodies to better understand their role in the provision of MAID, when and how they can decline to assist and what the best practices to follow are.

Will there be additional safeguards?

In the Carter decision, the Supreme Court indicated that assisted death was justifiable for a competent adult who clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual. The new legislation could require further safeguards, such as requiring a written request for MAID. A second health-care professional may be required to confirm all conditions have been met. It could also require a specific cooling-off period between the request being filed or granted and assistance being given.

Who will be able to receive MAID?

In most provinces and territories, mature minors are often given the same right as adults to make health-care decisions. Will the legislation restrict the application of MAID to individuals who have reached the age of majority or will it also give mature minors who face the dire circumstances described in Carter the same right to seek assisted death? Could MAID also be extended to children who suffer unbearably with no chance of recovery and whose suffering cannot be alleviated with palliative care?

The legislation is also expected to address whether special considerations would apply to adults with a psychiatric condition. If the legislation is silent on this issue, health-care professionals will know that the existence of a psychiatric condition will not, in and of itself, preclude assisted death, but will be taken into consideration (along with the applicant’s entire circumstances) when determining if the conditions have been met.

Will health-care professionals be able to act upon advance directives or a request presented by a substitute decision-maker?

Individuals are encouraged to adopt advance directives to make their end-of-life wishes known so that these can be respected should the person become incapable of communicating those wishes when necessary. These directives can be prepared well before a diagnosis, provided an individual is competent to do so. In Carter, the Supreme Court indicated that physician-assisted death should be available to a “competent adult person who […] has a grievous and irremediable medical condition”. Since advance directives are relied upon once a person is no longer competent, this would normally prevent reliance on advance directives that are prepared before the individual was afflicted with an irremediable condition that causes enduring and intolerable suffering.

In drafting new legislation, however, federal, provincial and territorial governments are not strictly limited to the circumstances outlined by the Supreme Court ruling. Governments may adopt a modified framework if it is consistent with the Canadian Constitution.

Whether advance directives for MAID can be acted upon has already been the subject of much debate. It is expected that the legislation will answer other questions relating to competence, such as the following: if health-care professionals can rely on advance directives, will it be only for those prepared after the diagnosis, when the individual was making an informed decision in respect to that condition? Will a guardian, power of attorney for personal care or substitute decision-maker be able to request assisted death on behalf of an incapable adult who is otherwise meeting the accessibility criteria?

Will the ability of care providers to decline to participate in MAID on the basis of conscientious objection be specifically recognized in the new legislation?

In Carter, the Supreme Court indicated that its decision was not intended to impose an obligation on physicians to provide assisted death and that the rights of patients and physicians would have to be reconciled in legislation and regulation.

A question might arise as to whether it will be sufficient to rely on the standards and guidelines already adopted in the various health-care professions’ codes of ethics and regulatory bodies. Such guidelines currently include an obligation to refer to a professional who will be able to provide the assistance required. Personal perspectives on MAID remain polarized, yet a patient’s best interest may at times require an early response. Therefore, it would be helpful for the legislation to provide an integrated mechanism of referral, that such responsibility not be left to individual professionals. This exists in the Quebec legislation, which states that a designated individual will be responsible for finding a professional who does not object to providing assisted death if a patient’s circumstances meet the legislative requirements.

Will the provision of assisted death be governed by federal or by provincial/territorial legislation?

The benefit of having MAID governed entirely by federal legislation is that it would apply throughout the country. If it is governed by provincial/territorial legislation, the rules could vary from one jurisdiction to another. Some provinces/territories may consider that they are not in a position to adopt legislation by June 6.

However, federal legislation also has its potential drawbacks. Our courts have so far generally held that the federal government does not have the right to adopt legislation governing the provision of health care except by prohibiting conduct and imposing a penalty, such as it does in the Criminal Code. As a result, to fully regulate MAID, the federal government would have to maintain the current prohibition against assisted suicide in the Criminal Code and then adopt comprehensive rules that would define when assisted death does not constitute an offence. In such a case, how would we then adequately guard against the risk that a health-care professional would face a criminal prosecution for what may ultimately be a slight variation from the exempted conduct? And will this ensure access to those who need this service?

So far, there appears to be general consensus that the Criminal Code must be amended to exempt assisted death from the definition of assisted suicide, but a more difficult question is whether the federal government will incorporate the entire legal framework for assisted death within that exemption, or whether it will instead resort to a simpler wording that would generally define assisted death, and leave the provinces (which will hopefully work together and adopt similar legislation) to determine the other requirements and processes relating to the administration of MAID. It may be that nurses will have to turn to both the Criminal Code and their provincial/territorial legislation to understand the full MAID framework.

The CNPS remains available to provide assistance to nurses who are eligible for its services and to ensure that they receive adequate legal information and protection, whether or not they choose to participate in MAID.


Passing Bill C-14 into law

Minister of Justice and Attorney General Jody Wilson-Raybould tabled Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) in the House of Commons on April 14.

The proposed legislation was scheduled for second reading on April 22, with long House of Commons debates expected to continue in early May.

Once the bill makes it through second reading in the House, the standing committee on justice and human rights will review it clause by clause. Chaired by Anthony Housefather, the committee includes six Liberal MPs, three Conservatives and one NDP. Following the committee stage, the bill will be sent back to the House and debated at the report stage, where further amendments may be made.

The next and final step before it makes its way to the Senate is third reading in the House for further debate and a vote. Because the Liberals have a majority government, the bill is expected to pass without any difficulty; however, all MPs, no matter what their party, are free to vote with their conscience.

Normally, bills follow a similar process in the Senate as in the House: first reading, second reading, referred to the Senate’s standing committee on legal and constitutional affairs, report stage, third reading and royal assent (if passed). To meet the Supreme Court’s deadline, royal assent is needed by June 6. Because of that tight timeline, the Senate committee will conduct a pre-study on the issue while the bill is going through the House, a rare (but not unheard of) procedural move that is usually reserved for particularly complex issues.

If everything goes well in the Senate, Bill C-14 will be passed and receive royal assent. However, if the Senate does not approve the bill, it will be referred back to the House. If the House does not agree with the Senate’s amendments, the bill can go back to the Senate. If an agreement on the bill cannot be reached before June 6, the Supreme Court’s decision applies and medical assistance in dying will be legal starting June 7.

Chantal Léonard

Chantal Léonard is a lawyer and the CEO of 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 for eligible RNs and NPs.

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