Juliet Guichon and Pauline Alakija argue that governments should require that physician-assisted deaths be reportable to (and by) coroners and medical examiners, so that scrupulous monitoring of physician-assisted death may occur.
When the Supreme of Court of Canada extended the suspension of its declaration of invalidity regarding physician-assisted death, it granted people the right to apply to a superior court for a declaration that they were eligible for physician-assisted death. So far, four persons have successfully applied: a Calgary woman with advanced ALS, a patient with an undisclosed illness in Winnipeg, an 80-year old Toronto man with advanced lymphoma, and a B.C. woman with multiple sclerosis.
Surprisingly, the courts did not state that the coroner or medical examiner had jurisdiction to oversee physician-assisted death. In two of the cases, the courts authorized the physicians who offered assistance in dying to complete the medical certificate of death, and held that the physicians should misstate the cause of death. Even though drug toxicity was the cause, the courts ordered or authorized the physicians to record that the Calgary woman died of ALS and the Toronto man died of lymphoma.
If this practice continues, then the official records will show that physician-assisted death does not occur in Canada.
Not only do such judicial orders undermine the important work conducted by coroners and medical examiners in accurate death recording and reporting, they prevent expert death monitoring. This result is inconsistent with the 2015 Carter decision, because it undermines scrupulous monitoring of physician-assisted death.
In that decision, the Supreme Court of Canada held that the right of physician-assisted death is not absolute. The Court stated that the case required it “to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.”
In accepting that a proper balance might be struck, the Supreme Court held that “the risks of physician-assisted death ‘can be identified and very substantially minimized through a carefully-designed system’ that imposes strict limits that are scrupulously monitored and enforced.”
“Scrupulous monitoring” requires accurate death recording and reporting, and oversight by coroners and medical examiners.
Accurate recording of major events such as birth, marriage, and death is the basis of Canada’s vital statistics and accurate death data collection. Coroners and medical examiners ensure that death reports are accurate. They distinguish between natural and non-natural deaths and typically have exclusive jurisdiction to record the cause of death in (among other deaths) non-natural deaths.
Non-natural deaths may not be classified as natural where there is an interruption of the natural process of disease, for example, by trauma or drug overdose. When a lethal dose of drugs is injected with the intent to end the patient’s life, then the natural disease process is interrupted and the ensuing death is non-natural. The fact that such a death is lawful should not lead to the false record that it was a natural death.
Not only does misstatement in the medical certificate of death inhibit accurate death reporting, it prevents coroner or medical examiner oversight.
Provinces and territories typically give coroners and medical examiners exclusive permission to record and report all non-natural deaths and many natural deaths. They must state who died; where, when and how the death occurred; and by what means. To answer these questions, coroners and medical examiners may conduct an investigation. The extent of investigation will vary enormously, depending on the precise circumstances. Coroners and medical examiners also examine trends that may affect public health policy.
In most cases of physician-assisted death, a coroner or medical examiner might conduct an initial inquiry limited to discussion with the attending physician, perhaps supplemented by an examination of medical chart. The initial inquiry may or may not uncover information that will justify fuller investigation.
For monitoring of physician assisted death to be scrupulous, this new practice of lawful killing must be overseen by people who already investigate homicide. Coroners and medical examiners are expert in determining cause and manner of death and they are independent of health services. They are dedicated to truth telling on medical certificates of death. Truth telling is an important value in itself, and is likely to increase public trust in the practice of physician assisted death.
As provinces and territories develop legislation to govern physician-assisted death, they should not ignore the possibility of worst case scenarios. Rather than adopting the recent judicial practice of misstating cause of death, creating conflict of interest in death reporting and presuming to oust the coroner or medical examiner, governments should explicitly require that a physician-assisted death be a notifiable death.
Provinces and territories should also ensure that coroner and medical examiner offices are adequately staffed and funded to report upon a new manner of death: physician-assisted death.