Medical Assistance in Dying: A Patient-Centred Approach

Jocelyn Downie reviews key points in the Report of the Special Joint Committee on Physician-Assisted Dying.

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On February 25, 2016, the Special Joint Committee on Physician-Assisted Dying delivered its Report to Parliament. This Report is worthy of admiration and its authors deserve our gratitude. The Report respects the incredibly strong public support that exists for decriminalization of assisted dying in general and for the positions on access, safeguards, and oversight. It respects the letter and the spirit of the Supreme Court of Canada decision in Carter v. Canada (Attorney General) and the Canadian Charter of Rights and Freedoms. It is grounded in the values underlying the public support for assisted dying and the judicial positions, and it has clearly benefitted from the wealth of information available from other jurisdictions.

The Committee largely succeeded in not dividing on partisan political lines (the main Report was supported by the liberal and conservative senators as well as the liberal and NDP members of parliament).

The Committee recognized the fact that much of the work that lies ahead in developing and implementing the regulatory framework for assisted dying requires the Government of Canada to work with the provinces and territories. This is mentioned in no less than 11 of the 21 recommendations. The Report calls loudly (and appropriately) for cooperation across the levels of government – federal, provincial and territorial.

Wheatfield with Crows, 1890 van Gogh. Painted during his last weeks.

Wheatfield with Crows, 1890 van Gogh. Painted during his last weeks.

The Committee situated assisted dying in the broader context of end-of-life care for all kinds of patients. The Report calls for a pan-Canadian strategy for palliative and end-of-life care, and a pan-Canadian strategy for dementia care and services. It also calls for support of the existing pan-Canadian mental health strategy to ensure appropriate mental health supports and services for those seeking assisted dying, and the availability of “culturally and spiritually appropriate end-of-life care services, including palliative care, are available to indigenous patients.” In sum, the Committee recognized that assisted dying should happen within the context of end-of-life care and that as we implement our assisted death system, we must have a better end-of-life care system.

The 21 recommendations in the Report address all of the critical issues relating to access to assisted dying, safeguards to protect the vulnerable, and oversight to ensure the system earns and deserves to keep the public trust.

On access, the Committee acknowledged the shortages of physicians in many rural and remote communities and the fact that nurses and nurse practitioners are regulated health professionals (therefore with professional competencies and accountability). On this basis, the Committee recommended that physicians, nurses acting under the direction of a physician, and nurse practitioners be permitted to provide access to assisted death. The Committee also recommended that practitioners who conscientiously object have an obligation to provide an effective referral for the patient. Further, all publicly funded health care institutions should be required to provide medical assistance in dying.

In this way, the Committee boldly rejected a tradition of allowing individual or institutional values to trump the exercise of individual rights and access to services in the healthcare context. The Committee also recognized specific diagnoses and age as illegitimate proxies for capacity – rejecting the exclusion of patients with psychiatric conditions and mature minors. The Committee recognized a requirement for prior review of requests by a panel or a judge as an unjustifiable barrier to access and an unreasonable intrusion into the relationship between patients and their healthcare providers.

The Committee also sought to protect individuals from premature death by recommending that advance requests for assisted dying be permitted where a qualifying diagnosis has been received but suffering has not yet become intolerable. Thus, an individual would be able to make a request for medical assistance in dying after a diagnosis of dementia, but before the onset of incapacity – with the assistance to be provided after they have lost the capacity for autonomous decision-making.

If the Special Joint Committee’s Report is taken up by the Government and then the House of Commons and the Senate, Canadians should be in a position to say the following in four months’ time:

We now have a system for assisted death that was crafted across party lines. Its core elements are harmonized across jurisdictional lines. It is grounded in valid and reliable evidence. It recognizes the primacy of wishes of capable individuals expressed freely and clearly with respect to assisted death; provides for access to assisted death; reconciles freedom of conscience of health care providers and the right to life, liberty, and security of the person for residents of Canada; and that ensures that the vulnerable are well-protected and the system of assisted death in Canada is well-monitored.

If we can say that, we will have a system that is, and deserves to be, the envy of the world and, more importantly, a system that allows us to truly care for the dying.

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Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. She was a member of the Royal Society of Canada Expert Panel on End of Life Decision-making and a member of the legal team for the plaintiffs in Carter v. Canada (Attorney General) @jgdownie