Jocelyn Downie suggests that nurse practitioners can and should initiate discussions about medical assistance in dying with patients for whom it may be an option.

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Imagine an 85-year-old woman with advanced cancer. She is experiencing intolerable physical pain that cannot be managed with medication. She has been in a long-term care home for 15 years and has not followed the news. She is not aware that medical assistance in dying (MAiD) was legalized in Canada in June 2016. Her healthcare practitioner is having a discussion with her about her suffering and her end-of-life care. Does her healthcare practitioner have an obligation or, alternatively, is she prohibited from raising the issue of medical assistance in dying without having been explicitly asked about it?

In its recent Regulatory Document providing direction for nurse practitioners providing medical assistance in dying, the Association of Registered Nurses of Newfoundland and Labrador addressed this question. They state that nurse practitioners “shall only provide information on MAiD upon the client’s explicit request” and that nurse practitioners “shall not initiate a discussion on MAiD with clients as this may be interpreted as counselling under the Criminal Code.” They base this conclusion on the following premises:

1. Subsection 241(1)(a) of the Criminal Code stipulates that it is a criminal offense to “counsel” a person to die by suicide.
2. There is a difference in the context in which the term “counsel” is being used in medical assistance in dying and the therapeutic relationship.
3. Under the Criminal Code, “counsel” includes “procure, solicit or incite.”
4. “In a therapeutic relationship ‘counsel’ is used by NPs [nurse practitioners] as a means of communication, information sharing, active listening, client education and the provision of psychological support.”

Image Description: Railroad tracks surrounding by grass and trees.
Photo Credit: Angel Petropanagos (2017)

Each of these four premises is true. However, the argument is invalid. This is because it is incomplete. There are no Supreme Court of Canada decisions on the meaning of “counselling” in the specific context of s.241(1) of the Criminal Code but, after summarizing the relevant Supreme Court of Canada jurisprudence on “counselling,” Justice Christine Gosselin of the Quebec Court concluded in R v Morin that “counselling” for the purposes of s.241(1) “concerns speech that, assessed objectively, aims to induce, persuade or convince a person to commit suicide.” (emphasis added). Therefore, based on this, initiating a medical assistance in dying discussion would only be counselling if a nurse practitioner aimed to induce, persuade or convince the patient to access assisted dying. The Supreme Court of Canada has made it clear that counselling requires “deliberate encouragement or active inducement.”

I maintain that nurse practitioners initiating a discussion about medical assistance in dying with patients for whom assisted dying may be an option would actually be meeting their professional obligations. Nurse practitioners are obligated to disclose all treatment options and alternatives to their patients and medical assistance in dying is now a legal end-of-life option in Canada. Disclosure of assisted dying as an option would be in keeping with this obligation as long as nurse practitioners aim only to provide information about medical assistance in dying and do not aim to induce, persuade or convince the patient to access assisted dying. Therefore, it would run counter to established jurisprudence for a nurse practitioner to be charged let alone convicted of counselling suicide for initiating a discussion about medical assistance in dying with a patient for whom it may be an option.

One can hope that the Association of Registered Nurses of Newfoundland and Labrador will revise its medical assistance in dying Regulatory Document and that any other regulatory bodies providing similar advice will do the same. Otherwise, the omission of medical assistance in dying in treatment discussions for patients who may be eligible to receive this service will put these patients at risk of experiencing enduring and intolerable suffering. Patients who do not have access to publicly available information about medical assistance in dying should not lose out on the option to end their suffering simply because they don’t know to ask about it. Surely, the barrier to providing this information is nothing more than an illusory risk of criminal liability.*

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Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. @jgdownie

*This blog posting is not intended to serve as legal advice. Nor is it intended to serve as a legal risk assessment. The content is intended for informational purposes only.