In Carter v Canada, the Supreme Court of Canada ruled that the criminal status of medically assisted dying was unconstitutional.[1] In June 2016, the government of Canada responded by creating provisions in the Criminal Code (Code) that decriminalized medical assistance in dying (MAiD).[2] Sections 241(2)-(7) of the Code set out the applicable exemptions allowing for MAiD and sections 241.1-241.2 outline the specific eligibility criteria, procedural requirements, and safeguards in place.[3] Under s. 241.31(3) of the Code, authority is granted to the Minister of Health to establish any further regulations concerning the implementation of MAiD.[4]
In December 2017, a new regulation was proposed under this legislation to allow for more detailed federal monitoring of assisted dying practices. The proposed Monitoring of Medical Assistance in Dying Regulations requires physicians, nurse practitioners, and pharmacists to submit a detailed report regarding requests for and the provision of MAiD within a prescribed period of time.[5] Health Canada will consolidate the data collected and publish a national annual report. The proposed regulations are intended to promote transparency and accountability about MAiD, monitor practice trends, evaluate the effectiveness of the current legislation, and make data available to qualified and independent researchers. The proposed regulations have caught the attention of both physicians and lawyers alike, as failure to comply with the stipulated reporting timelines could result in criminal penalties.[6] To understand the impact that the proposed regulations could have on physicians and patients, it’s important to understand how MAiD currently works in Ontario, from a practical perspective.
According to the College of Physicians and Surgeons of Ontario (CPSO), the current MAiD legislation (that is, without the proposed regulations) translates into a 9-step procedure for physicians and nurse practitioners providing medical assistance in dying.[7] Once the patient makes their initial inquiry for MAiD, the practitioner assesses the patient against the legislative criteria, the outcome of which requires documentation in the patient’s medical record. Once eligibility has been established, and the patient has provided a written request for assistance, the practitioner must remind the patient of their ability to rescind their request at any time going forward. The patient is then referred to a second, independent practitioner who will conduct an independent eligibility assessment and provide a written confirmation of the requisite criteria being met. If the second practitioner does not find the patient eligible, the patient is entitled to have another physician assess them against the criteria. A mandatory 10-day reflection period must take place between the initial request for assistance and the provision of the assistance, the start and end days of which must be clearly documented in the patient’s medical record. At the outset of the reflection period, practitioners must notify a pharmacist that medication for MAiD is required and the drug protocol that will be utilized must be documented in the patient’s medical record. Immediately before providing assistance in dying, the practitioner must provide the patient with the opportunity to withdraw consent. If the medication is administered by the practitioner (as opposed to self-administered by the patient),they must note the time of death in the patient’s record. It is mandatory that any physician who provides MAiD reports the death to the Office of the Chief Coroner, who will then determine whether an investigation into the death is required, or if the practitioner can proceed with completing the medical certificate of death. Currently, death certificates for medically-assisted deaths cite the cause of death as the underlying illness or disease and do not refer to medical assistance in dying.
The new proposed regulations require practitioners to provide specific information documenting each step of the MAiD process through submissions via an online portal within a designated time frame.[8] The reporting requirements differ depending on whether a practitioner actually administers or prescribes a substance, refers the patient to another practitioner, or if the patient withdraws their request or dies before receiving MAiD. Information about the request, patient, practitioner, sociodemographic factors, application of the eligibility criteria, safeguards, and details regarding the actual provision of MAiD are all required within 10 to 90 days depending on the outcome following the patient’s initial inquiry. Practitioners who fail to report within the designated time frame would be subject to criminal penalties as per section 241.31(5) of the Criminal Code.
From a medical practitioner’s perspective, the regulations would add yet another administrative burden on an already burdensome process. The tight mandatory reporting timelines provide little leeway for physicians managing busy practices and may disincentivize practitioners from offering MAiD. When physicians decline to assist with MAiD, they must refer the patient to another physician who is willing to complete the process. Despite clear policy requirements by the CPSO on how an objecting physician may decline to provide MAiD, the denial in and of itself could have an impact on a patient’s decision to seek assistance in dying. From a financial perspective, if physicians and pharmacists were remunerated for their time spent on reporting activities, this would have financial implications for the federal and provincial governments, who will already be incurring costs associated with operationalizing the reporting system.
Another potential issue created by the proposed regulations is the privacy of the patient and physician information that will need to be disclosed for data collection purposes. Specific concern about the collection of personal sociodemographic information is cited in the Canada Gazette.[9] The report, however, delineates that the proper privacy impact assessment would be conducted before the regulations were implemented with the goal of ensuring the protection of patient, practitioner, and pharmacist privacy while still ensuring all useful information is collected.[10]
Despite the challenges associated with implementation, the proposed regulations have promising potential. The oversight and data collected through the reports creates the foundation for productive developments in the MAiD regime. One of the objectives of the proposed regulations is an assessment of whether the legislation is achieving its purpose.[11] The data pertaining to eligibility may be particularly important for assessing the effectiveness of the legislation. A court challenge launched in British Columbia, Lamb v Canada (Lamb), is attempting to challenge the current restrictions on MAiD for discriminatory effects.[12] The action is challenging the “imminence” requirement. Lamb claims that the imminence requirement deems many patients who suffer from illnesses, such as Parkinson’s and multiple sclerosis, ineligible for MAiD because their natural death is not “reasonably foreseeable”.[13] Therefore, the MAiD scheme as it stands denies a subset of these patient populations the full benefits of the Carter decision.[14] Monitoring through the proposed regulations could shed light on the problems faced by patients under the current legislative scheme, providing Parliament with the opportunity to revise the legislation to fit the needs of patients better while also preventing future litigation.
The data collected will also allow for comparisons to be made between provinces. This would provide provinces with the opportunity to learn from one another to develop best practices with respect to provincial policies concerning MAiD. Consequently, the comparison would allow the patients and their families to be provided the best service possible. The information may also be valuable to other jurisdictions looking to revise their assisted death laws, as similar data from the Netherlands and Oregon was used by the Supreme Court of Canada when coming to their decision in Carter.[15] Finally, annual reports of statistics surrounding MAiD may help foster public confidence in the practice by dispelling myths and misconceptions regarding assisted death.
Like any new area of law, many questions remain. The need to answer these questions and provide accurate and comprehensive information about medical assistance in dying to patients, practitioners, and the public must be balanced against countervailing practical implications. As the law in this area continues to evolve, lawyers must learn to navigate the legal terrain to ensure all those involved are sufficiently protected.
Lauren Rennie received her BSc in Biological Science, with a minor in Criminal Justice and Public Policy, at the University of Guelph. Madison Black received her MSc in Anatomy and Cell Biology with a focus in cancer research at Queen’s University.
This article is part of the Osgoode Health Law Association’s Perspectives in Health column. Keep up to date with the HLA on Facebook (Osgoode Health Law Association, Osgoode Health Law Association Forum) and Twitter (@OsgoodeHLA).
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[1] Carter v Canada (Attorney General), 2015 SCC 5, [2015] SCR 331.
[2] Bill C-14, An act to amend the Criminal Code and to make related amendments to other acts (medical assistance in dying),1st Sess, 42nd Parl, 2016.
[3] Criminal Code, RSC 1985, c C-46, s 241.
[4] Ibid at s 241.31.
[5] Monitoring of Medical Assistance in Dying Regulations, (2017) C Gaz I, Vol 151 No 50.
[6] Supra note 3 at 241.31(5).
[7] The College of Physicians and Surgeons of Ontario, Medical Assistance in Dying Policy Statement 4-16, Toronto: CPSO, 2016.
[8] Supra note 5.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Dying with Dignity Canada, “Get the Facts: Lamb v Canada”, Dying with Dignity Canada (blog), online: http://www.dyingwithdignity.ca/lamb_v_canada.
[13] Ibid.
[14] Ibid.
[15] Supra note 5.