Request to die shouldn’t come from substitute decision maker

People who are substitute decision makers for severely ill loved ones shouldn’t be able to request medically assisted deaths on their behalf, says a Parliamentary committee studying the matter.

A special Parliamentary committee says medical assistance in dying should be made available with few obstacles to Canadians who are suffering from grievous and irremediable medical conditions that cause enduring suffering, including people suffering from both physical and psychological medical conditions.

Read: What the right-to-die ruling means for POAs

The recommendations are intended to guide the federal government as it drafts new legislation governing medically assisted death.

Only the patient can ask to die, and the request shouldn’t come from someone acting as his or her substitute decision maker, says the committee.

Whenever possible, the committee says advanced requests should be made in writing, and witnessed by two people who have no conflict of interest. Two unaffiliated doctors must also confirm that the patient has a medical condition that meets the eligibility for assisted dying.

The recommendations don’t define what a conflict of interest is, so whether a patient’s children (who would benefit from an inheritance), an advisor, a person acting as PoA, or an executor who has a financial interest in the patient’s outcome would be allowed to witness a request is unclear. The recommendations also don’t discuss how such conflicts would be policed.

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People diagnosed with incurable conditions that are likely to cause loss of competence, such as dementia, should be able to make advance requests for medical assistance in dying, says the committee. The request can be made in advance of losing capacity to make decisions, but not before someone is actually diagnosed.

The Supreme Court struck down the ban on doctor-assisted death last year and has given the government until June to come up with a new law that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

Read the committee’s full report here and see all their hearings here.

Here are the committee’s 21 recommendations in full.

RECOMMENDATION 1

That the terms relating to medical assistance in dying do not require further statutory definition.

RECOMMENDATION 2

That medical assistance in dying be available to individuals with terminal and non-terminal grievous and irremediable medical conditions that cause enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

RECOMMENDATION 3

That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.

RECOMMENDATION 4

That physical or psychological suffering that is enduring and intolerable to the person in the circumstances of his or her condition should be recognized as a criterion to access medical assistance in dying.

RECOMMENDATION 5

That the capacity of a person requesting medical assistance in dying to provide informed consent should be assessed using existing medical practices, emphasizing the need to pay particular attention to vulnerabilities in end-of-life circumstances.

RECOMMENDATION 6

That the Government of Canada implement a two-stage legislative process, with the first stage applying immediately to competent adult persons 18 years or older, to be followed by a second stage applying to competent mature minors, coming into force at a date no later than three years after the first stage has come into force; and

That the Government of Canada immediately commit to facilitating a study of the moral, medical and legal issues surrounding the concept of “mature minor” and appropriate competence standards that could be properly considered and applied to those under the age of 18, and that this study include broad-based consultations with health specialists, provincial and territorial child and youth advocates, medical practitioners, academics, researchers, mature minors, families, and ethicists before the coming into force of the second stage.

RECOMMENDATION 7

That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable. An advance request may not, however, be made, prior to being diagnosed with such a condition. The advance request is subject to the same procedural safeguards as those in place for contemporaneous requests.

RECOMMENDATION 8

That medical assistance in dying be available only to insured persons eligible for publicly funded health care services in Canada.

RECOMMENDATION 9

That the Government of Canada work with the provinces and territories and their medical regulatory bodies to ensure that, where possible, a request for medical assistance in dying is made in writing and is witnessed by two people who have no conflict of interest.

RECOMMENDATION 10

That the Government of Canada work with the provinces and territories and their medical regulatory bodies to establish a process that respects a health care practitioner’s freedom of conscience while at the same time respecting the needs of a patient who seeks medical assistance in dying. At a minimum, the objecting practitioner must provide an effective referral for the patient.

RECOMMENDATION 11

That the Government of Canada work with the provinces and territories to ensure that all publicly funded health care institutions provide medical assistance in dying.

RECOMMENDATION 12

That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to establish that a request for medical assistance in dying can be carried out only if two physicians who are independent of one another have determined that the person meets the eligibility criteria for medical assistance in dying.

RECOMMENDATION 13

That physicians, nurse practitioners and registered nurses working under the direction of a physician to provide medical assistance in dying be exempted from sections 14 and section 241(b) of the Criminal Code. Pharmacists and other health care practitioners who provide services relating to medical assistance in dying, should also be exempted from sections 14 and section 241(b) of the Criminal Code.

RECOMMENDATION 14

That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to ensure that any period of reflection for medical assistance in dying that is contained in legislation or guidelines is flexible, and based, in part, on the rapidity of progression and nature of the patient’s medical condition as determined by the patient’s attending physician.

RECOMMENDATION 15

That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to ensure that the process to regulate medical assistance in dying does not include a prior review and approval process.

RECOMMENDATION 16

That Health Canada lead a cooperative process with the provinces and territories creating and analyzing national reports on medical assistance in dying cases, and that such reports be compiled on an annual basis and tabled in Parliament. Such reports must ensure respect for the privacy of affected individuals.

RECOMMENDATION 17

That a mandatory statutory review of the applicable federal legislation be conducted by the appropriate committee(s) of the House of Commons and of the Senate every four years after the coming into force of the applicable federal legislation.

RECOMMENDATION 18

That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to ensure that culturally and spiritually appropriate end-of-life care services, including palliative care, are available to Indigenous patients.

RECOMMENDATION 19

That Health Canada re-establish a Secretariat on Palliative and End-of-Life Care; and that Health Canada work with the provinces and territories and civil society to develop a flexible, integrated model of palliative care by implementing a pan-Canadian palliative and end-of-life strategy with dedicated funding, and developing a public awareness campaign on the topic.

RECOMMENDATION 20

That the Government of Canada support the pan-Canadian mental health strategy, Changing Directions, Changing Lives, developed by the Mental Health Commission of Canada and work with the provinces, territories and civil society to ensure that appropriate mental health supports and services are in place for individuals requesting medical assistance in dying.

RECOMMENDATION 21

That Health Canada and the Public Health Agency of Canada work with the provinces, territories and civil society organizations to develop a pan-Canadian strategy to improve the quality of care and services received by individuals living with dementia, as well as their families.