Medical Assistance in Dying

MEDICAL ASSISTANCE IN DYING Where are We At and What Does it Mean for Me?

Erin Wolff – MLT Aikins LLP

May 6, 2017

1

AGENDA

• Background

• MAID Legislation

• Impact on Practice

• Liability

• New Developments & Unresolved Issues

2

BACKGROUND

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• Until 2015, assisted dying was illegal

• Carter v. Canada (Attorney General) • SCC struck down provisions of Criminal Code that

created absolute prohibition

• Charter rights of patients and physicians need to be recognized

• Physicians not compelled to assist

• Declaration of invalidity suspended until June 6, 2016

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• Interim period prior to enactment of legislation where MAID could be sought in Québec (under its provincial legislation) or by court application in other jurisdictions.

• A number of applications were granted in reported court decisions.

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MAID LEGISLATION

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BILL C-14 (AN ACT TO AMEND THE CRIMINAL CODE AND TO MAKE RELATED AMENDMENTS TO OTHER ACTS (MEDICAL ASSISTANCE IN DYING))

• Became law on June 17, 2016

• Permits medically-assisted dying in certain circumstances

• Prescribes criteria for eligibility and safeguards

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BILL C-14 (CONT’D.)

Two types of MAID:

• Voluntary euthanasia

• Medically-assisted suicide

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Who can participate in MAID:

• Provision of MAID:• Physicians

• Nurse Practitioners

• Assist in provision of MAID:• Pharmacists

• Health care providers

• Other persons

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Eligibility Criteria:

• Eligible for health services

• At least 18 and mentally competent

• Grievous and irremediable medical condition

• Voluntary request

• Informed consent

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Grievous and irremediable medical condition:

• Serious illness, disease or disability

• Advanced state of irreversible decline

• Caused enduring physical or psychological suffering

• Reasonably foreseeable death

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Consent:

• Must be:• Informed

• Expressed

• Written

• Voluntary

• Patient must fully understand the decision

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Safeguards:

• Before providing MAID, physician or NP must ensure:• All eligibility criteria are satisfied

• Second, independent medical opinion is obtained

• Individual given opportunities to withdraw consent

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HOW IS PHARMACY PRACTICE AFFECTED?

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APPLICATION

• Bill C-14 only contemplates involvement of “pharmacists”

• Ongoing debate about interpretation and involvement of pharmacy technicians

• Section 21 of SCPP: MAID Practice Guideline

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SCPP MAID PRACTICE GUIDELINE

• Result of extensive consultation

• Pharmacists expected to undertake MAID activities in accordance with this guideline

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ETHICAL CONSIDERATIONS

• MAID raises important ethical issues

• Be prepared to respond quickly if asked to participate in MAID

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CONSCIENTIOUS OBJECTION

• May decline to participate in MAID for reasons of conscience or religion, provided that pharmacist complies with “Refusal to Provide Products or Services for Moral or Religious Reasons Statement”:http://scp.in1touch.org/uploaded/web/refmanual/REF_Refusal_of_Services_for_Moral-Religious_Reasons_Stmt_Current.pdf

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CONSCIENTIOUS OBJECTION (CONT’D.)

• If objecting:• Inform physician or NP at earliest opportunity

• Provide physician or NP with effective referral

• Inform pharmacy management of objections

• Do not impede or block access to information, care or services for MAID;

• Take steps to ensure continuity of care for patient

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PARTICIPATION REQUIREMENTS

Pharmacists who choose to participate MUST:

• Receive from physician or NP:• Request for MAID

• Prescription for MAID

• Written confirmation that:

• Prescribed drug is intended for MAID for specified patient

• patient meets all eligibility criteria; and

• Informed consent has been obtained

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PARTICIPATION REQUIREMENTS (CONT’D.)

• Have requisite competency

• Ensure that prescription for MAID meets requirements

• Document MAID process using approved forms

• Personally prepare, label and distribute prescriptions for MAID• No aspect of dispensing MAID drugs shall be

delegated

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• Store prepared MAID prescriptions in pharmacy’s locked safe

• Only release MAID prescriptions to physician or NP on specified date

• Ensure that:• patient counselling related to the drugs is provided

• Physician or NP has information re: preparation, stability, storage and administration of drugs

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• Support secure and timely return and disposal of any unused drugs

• Report information to any designated government organizations in accordance with any required format, manner and schedule

• Refer any individuals seeking MAID to physician, NP or appropriate RHA delegate

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PRACTICE LIMITATIONS

Pharmacists shall NOT:

• participate in MAID without first receiving request from physician or NP

• lead the MAID process

• assess a patient to determine if he or she meets eligibility criteria

• collect patient consent for MAID

• prescribe drugs for MAID

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PRACTICE LIMITATIONS (CONT’D.)

Pharmacists shall NOT:

• Dispense drugs intended for MAID as “office use”

• Engage in any pharmacy practice that presents a conflict of interest or compromised professional independence, judgment or integrity

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LIABILITY

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CRIMINAL CODE

• s. 241(1): criminal offence for everyone who aids a person to die by suicide• imprisonment for up to 14 years

• S. 241(3) creates exemption for pharmacists and others who aid a physician or NP in providing MAID in accordance with all requirements prescribed in section 241.2

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CRIMINAL CODE (CONT’D.)

• Criminal offences also exist for:• Forgery in relation to a request for MAID

• Destruction of documents relating to MAID

• Interfering with rights and obligations relating to MAID

• Penalty of imprisonment for up to 5 years

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OTHER CONSIDERATIONS

Non-compliance may also result in:

• Disciplinary action (termination of employment and/or privileges)

• Professional discipline/liability

• Prosecution for other offences prescribed in applicable legislation

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NEW DEVELOPMENTS & UNRESOLVED ISSUES

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Information Reporting

• Regulations prescribing information reporting requirements not yet in force

• Limited information available to date

• Difficult to accurately assess:• number of MAID requests

• number of medically-assisted deaths

• medical conditions that motivate requests

• if MAID is being consistently implemented across Canada

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Quebec 469 Dec.10/15 – Dec. 9/16

Ontario 365 June 17/16 – March 31/17

B.C. 285 June 17/16 – Feb. 28/17

Alberta 100 June 17/16 – March 31/17

Manitoba 37 June 17/16 – March 31/17

Nova Scotia 31 June 17/16 – March 31/17

Saskatchewan 21 June 17/16 – March 31/17

New Brunswick 9 June 17/16 – Dec. 31/16

N.L. 7 June 17/16 – March 31/17

P.E.I. 0 June 17/16 – March 31/17

N.W.T. 0 -

Nunavut 0 -

Yukon * Would not divulge, saying small population

raises confidentiality concerns

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MEDICALLY-ASSISTED DEATHS IN CANADA

**CBC News (April 20, 2017)

REGULATORY GUIDANCE

• Professional regulatory bodies across Canada have implemented MAID guidelines and standards

• Provincial legislative changes in some jurisdictions

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SASKATCHEWAN’S PROGRESS

• Standard provincial processes and resources being developed

• Patients interested in MAID advised to approach their physician or NP

• CPSS and SRNA provide guidance to members

• SCPP has developed MAID practice guideline

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FURTHER REVIEW

• Federal government required to initiate review of issues not addressed by Bill C-14 (i.e. mature minors, advance requests, and mental illness)

• Review expected to be complete by Dec. 2018

• Parliamentary review of Bill C-14 by June, 2021

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CONSTITUTIONAL CHALLENGES

Lamb v Canada, Court file No S-165851 (BCSC):

• individual with spinal muscular atrophy & BC Civil Liberties Association

• claim that certain requirements for MAID are unconstitutional

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CONSTITUTIONAL CHALLENGES (Cont’d.)

Quebec government:

• Looking at ways to broaden eligibility for medically-assisted dying

• seeking court's opinion to clarify requirement that natural death be "reasonably foreseeable”

• result of concerns expressed by a variety of professional organizations

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CLOSING REMARKS

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RESOURCESMLT Aikins Insights -https://www.mltaikins.com/insights/

SCPP – MAID Practice Guideline:

http://scp.in1touch.org/uploaded/web/refmanual/RE

F_MAID_Practice_Guidelines_Current.pdf

Saskatchewan Government -

https://www.saskatchewan.ca/residents/health/acce

ssing-health-care-services/medical-assistance-in-

dying/accessing-medical-assistance-in-dying-

services

39

Q&A40

THANK YOU

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Erin Wolff

• [email protected]

• (306) 347-8449

DISCLAIMER

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“MLT Aikins”, the MLT Aikins Designs and “Western Canada’s Law Firm” are trademarks of MLT Aikins LLP. Copyright © 2017 MLT Aikins LLP. All rights reserved.

The information contained in this

presentation is general in nature and

does not constitute legal advice, nor is it

an exhaustive discussion of the subjects

noted.

Healthcare

Medical Assistance in Dying