MEDICAL ASSISTANCE IN DYING: LEGAL FACTS ON THE THREE OUTSTANDING AREAS

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2 MEDICAL ASSISTANCE IN DYING: LEGAL FACTS ON THE THREE OUTSTANDING AREAS Executive summary While the Federal Government set out the circumstances under which persons can access medical assistance in dying in June 2016, several outstanding legislative issues remain. As these issues are addressed, educational, legislative, regulatory and practice changes are likely to occur. In particular, the federal medical assistance in dying legislation requires the government to further study three types of requests for medical assistance in dying that are not currently permitted. These are: requests by mature minors; advance requests; and requests where mental illness is the sole underlying medical condition. The purpose of this document is to provide some legal facts. It summarizes the law for these three types of requests in jurisdictions that have legislation permitting medical assistance in dying (Table 1). The document also includes recommendations from various Canadian reports released before the enactment of Bill C-14 (Table 2). This document does not capture the ethical, political, religious, social and medical considerations that are part of the conversation about medical assistance in dying. Background Between the release of the Supreme Court of Canada s decision in Carter in February 2015 and the passage of the federal legislation 16 months later, various Canadian bodies published recommendations on what issues the legislation should cover. Some of these recommendations were based on information collected from surveys of the public, and others were based on legal, ethical, religious, social and medical interpretations of the Carter decision. There were three particularly complex types of requests for Timeline of key events for medical assistance in dying in Canada NOV 30, 2015 Report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying released MAY 12, 2016 Report of the House of Commons Standing Committee on Justice and Human Rights released JUNE 17, 2016 Bill C-14 passed FEB 6, 2015 Carter v Canada Supreme Court decision released FEB 25, 2016 Report of the Special Joint Committee on Physician-Assisted Dying released MAY 17, 2016 Report of the Senate Standing Committee on Legal and Constitutional Affairs released LATE 2018 Report of the Expert Panel of the Council of Canadian Academies to be released 2

3 medical assistance in dying; while various reports provided recommendations on these three issues, in the end, federal legislators decided not to address them directly in the law but rather to defer them for further study. Now that the legislation has been in place for over one year, study of these three types of requests for medical assistance in dying is underway. Minister of Health Jane Philpott and Minister of Justice and Attorney General of Canada Jody Wilson-Raybould asked the Council of Canadian Academies to undertake independent reviews related to the three types of requests. The expert panel convened by the Council of Canadian Academies plans on releasing three separate reports in late 2018 that will address the clinical, legal, cultural, ethical and historical implications of the three types of requests by answering the following questions. 1 Requests for medical assistance in dying by mature minors 1. What is the impact of chronological age on the legal capacity to request and consent to medical assistance in dying? 2. What are the unique considerations related to mature minors requesting medical assistance in dying (e.g., mature minors v. adults and medical assistance in dying v. other health care decisions)? Advance requests for medical assistance in dying 1. How is an advance request for medical assistance in dying similar to or different from advance directives for health care under existing provincial/territorial regimes? 2. What are the unique considerations to be taken into account depending on when an advance request is made? 2 Requests for medical assistance in dying where mental illness is the sole underlying medical condition 3 1. What is the impact of mental illness in its different forms on an individual s legal capacity to request and consent to medical assistance in dying? 2. What are the unique considerations related to individuals living with mental illness (including mature minors) requesting medical assistance in dying where the mental illness is the sole underlying medical condition? 4 Medicine s role We as physicians will be called upon to comment on these three types of requests. As we did when we developed the CMA s medical assistance in dying policy, 5 we need to begin a conversation on these three issues. The CMA will hold an Education Session on Wednesday, Aug. 23, at 8:00-8:45 am to get input from you on these three topics. 1 See Council of Canadian Academies, Medical assistance in dying. Ottawa: The Council; 10 May Available online. 2 That is, (1) before diagnosis, (2) after diagnosis but before the onset of suffering, and (3) after all of the eligibility criteria and procedural safeguards have been met, except for the 10-day waiting period and the reconfirmation immediately before provision of medical assistance in dying. 3 For certainty, the study is concerned with requests where mental illness is the sole underlying medical condition. It does not include circumstances where a person with a mental illness is eligible under the existing law. 4 Both in communities or institutions. 5 Canadian Medical Association. Medical assistance in dying. PD Ottawa: The Association; May Available online. 3

4 TABLE 1. SUMMARY OF SELECT LEGAL FRAMEWORKS IN JURISDICTIONS WITH MEDICAL ASSISTANCE IN DYING LEGISLATION Permitted for mature minors? Advance requests permitted? Mental illness as the sole underlying condition permitted? United States (Oregon, 1 Vermont, 2 Washington, 3 California, 4 and Colorado 5 ) No The Belgium 7 Luxembourg 8 Canada Quebec 10 Netherlands 6 (Bill C-14) 9 Yes Minors aged years require parental consent Yes, with parental consent Minors aged years require parental consultation No Yes Yes, only for irreversibly unconscious persons Valid for 5 years No No No Yes, only for irreversibly unconscious persons Valid for 5 years No Yes Yes Yes No No Key points In Luxembourg and five US states, only adults (people aged 18 years or older) may access medical assistance in dying. The Netherlands determines eligibility for minors on the basis of chronological age, while Belgium employs a capacity-based assessment; both countries require some level of parental input. Only the Benelux countries allow for advance requests. In Belgium and Luxembourg, such requests can only be fulfilled when the physician determines that the patient is irreversibly unconscious according to the current state of medical science. The Netherlands has no such requirement. The Benelux countries permit requests for medical assistance in dying where mental illness is the sole underlying condition, whereas in the five US states, eligibility requires a terminal physical condition. No No 4

5 TABLE 2. SUMMARY OF SELECT CANADIAN RECOMMENDATIONS Provincial- Territorial Expert Advisory Group on Physician-Assisted Dying 11 Access to medical assistance in dying for mature minors should be based on competence, not age Special Joint Committee on Physician-Assisted Dying 12 House of Commons Standing Committee on Justice and Human Rights 13 Senate Standing Committee on Legal and Constitutional Affairs 14 Unclear * Mature minors Government should employ a two-stage process, where after no later than three years, competent mature minors may access medical assistance in dying Allow after a diagnosis of a (a) grievous or irremediable condition; OR (b) condition that is reasonably likely to cause loss of competence; AND fulfill before suffering becomes intolerable Government should study the three types of requests Advance requests Allow after a diagnosis of a grievous and irremediable condition; fulfill when suffering becomes intolerable Study: requests made before a diagnosis Prohibit before a diagnosis Allow after a diagnosis of a (a) grievous or irremediable condition; OR (b) condition that is reasonably likely to cause loss of competence; AND fulfill before suffering becomes intolerable Prohibit before a diagnosis Mental illness as the sole underlying condition Allow access Allow access Unclear ** Key points A majority of the reports recommend the provision of medical assistance in dying through an advance request, with some emphasizing that advance requests should only be available after the diagnosis of a grievous or irremediable condition. The Provincial-Territorial Expert Advisory Group and the Special Joint Committee recommend the use of competence-based assessments rather than age to determine the eligibility of mature minors. Half of the reports indicate that mental illness should not limit access and eligibility for medical assistance in dying. * The Committee did not make an explicit reference to age, but the report employs the word person not adult. ** The Committee did not make an explicit reference to mental illness, but the report recommended that eligible persons must be diagnosed with a serious and incurable terminal illness, disease or disability and have been determined to be at the end of life. 5

6 REFERENCES Legislative summary 1 US, RS , The Oregon Death with Dignity Act, Or, 1994 (enacted October 1997). 2 US, S-77, An Act Relating to Patient Choice and Control at End of Life, Reg Sess, Vt, 2013 (enacted May 2013). 3 US, RCW , The Washington Death with Dignity Act, Wash, 2008 (enacted March 2009). 4 US, SB-128, End of Life Option Act, Re Sess, Cal, 2015 (enacted October 2015). 5 US, CRS 25-48, End of Life Options, Col, 2016 (enacted December 2016). 6 The Netherlands, Termination of Life on Request and Assisted Suicide (Review Procedures) Act (enacted 1 April 2002). 7 Belgium, Loi relative à l euthanasie (enacted May 2002); Belgium, Loi modifiant la loi du 28 mai 2002 relative à l euthanasie, en vue d etendre l euthanasie aux mineurs (enacted February 2014). 8 Luxembourg, Loi du 16 mars 2009 sur l euthanasie et l assistance au suicide (enacted March 2009). 9 Canada, Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying), SC 2016, c 3 (enacted June 2016). 10 Quebec, Act respecting the end-of-life care, c S (enacted June 2014). Select Canadian recommendations 11 Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Final Report (Chairs: Jennifer Gibson and Maureen Taylor). 12 Special Joint Committee on Physician-Assisted Dying, Medical Assistance in Dying: A Patient-Centered Approach (Chairs: Honorable Kelvin Kenneth Ogilvie and Robert Oliphant). 13 House of Commons, Standing Committee on Justice and Human Rights, Report 2: An Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying) (Chair: Honorable Anthony Housefather). 14 Senate, Standing Committee on Legal and Constitutional Affairs, Third Report: Subject Matter on Bill C-14, An Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying) (Chair: Honorable Bob Runciman). 6