Consultations on Physician-Assisted Dying - Summary of Results and Key Findings
The Ministers of Justice and Health formally established the External Panel on Options for a Legislative Response to Carter v. Canada (the Panel) on 17 July 2015. The Panel's mandate was to hold discussions with the interveners in Carter and with "relevant medical authorities," and to conduct an online consultation "open to all Canadians and other stakeholders." During an ambitious five-month schedule, the Panel held in-depth meetings on physician-assisted dying with stakeholders and experts, both in Canada and abroad. This report presents a summary of the results and key findings of the Panel's direct and online consultation.
The Panel's consultation activities focused on issues that are fundamental to a federal legislative response to the Carter ruling, as outlined in the Panel's terms of reference:
- The different forms of physician-assisted dying, namely assisted suicide and voluntary euthanasia
- Eligibility criteria and definition of key terms
- Risks to individuals and society associated with physician-assisted dying
- Safeguards to address risks and procedures for assessing requests for assistance in dying and the protection of physicians' freedom of conscience
The report begins by exploring the legal context surrounding Carter v. Canada, the issues raised at trial and the outcome. Along with providing a detailed account of the primary issues, this section examines the relevant areas of law at play in Carter and outlines the Supreme Court's reasoning. The Supreme Court's decision in Carter served as the frame for both the consultations and this report. The Panel expresses its unqualified deference to the Supreme Court of Canada and its respect for the supremacy of Parliament to ultimately decide how Canada will respond to the Carter ruling.
The Panel sought a broad and diverse range of perspectives to ensure that discussions about access to physician-assisted dying and safeguards for vulnerable persons were informed by the insights of patients, family, advocates and all members of multidisciplinary healthcare teams. Another important aspect of the Panel's investigation came from jurisdictions where various forms of assisted dying are legal. The detailed chronology of Panel activities included in this report helps demonstrate the volume and depth of its investigation.
Over the course of its work, the Panel held meetings with 73 individual experts in Canada, the United States, the Netherlands, Belgium and Switzerland. From 20 October to 6 November 2015, the Panel consulted directly with 92 representatives of interveners, medical authorities and stakeholders from 46 Canadian organizations. In addition, the Panel received and considered 321 written submissions from civil-society organizations, academics and individual citizens.
To solicit opinions online, the Panel posted a questionnaire–the Issue Book–on its website from 20 August to 23 November 2015. In total, 14,949 individuals completed the questionnaire, providing the Panel with invaluable data detailing the diversity of Canadians' views on the implementation of physician-assisted dying. The total figure included a nationally representative sample of 2,066 Canadians.
The Panel engaged an independent third-party expert to provide an assessment of the conclusions that can reliably be drawn from the extensive data collected and to guide its interpretation. Dr. Richard Jenkins' assessment indicated that the Panel
"can and should use the results of the consultation... as a reflection of the views of Canadians on the issue." His full review is provided in Annex B to the Panel's report.
The Report on Issue Book Results (Annex A) provides a rich source of information and insight. For example:
- Participants demonstrated strong levels of support for:
- A national oversight body for physician-assisted dying (>70%)
- A national strategy on palliative and end-of-life care (>76%)
- A comprehensive national home-care strategy (>78%)
- A national strategy on disability supports (>80%)
- Palliative-care education for all healthcare providers (>84%)
- Respondents were more likely to agree that physician-assisted death should be allowed when a person faces significant, life-threatening and/or progressive conditions.
- Participants were generally more concerned about risks for persons who are mentally ill, especially those with episodic conditions, and for persons who are isolated or lonely.
The main body of the report is structured to align with the potential process an individual seeking physician-assisted dying may navigate: beginning with discussions of the person's eligibility and request, through processes of assessment, to methods of determination and issues related to the provision of physician-assisted death.
As a preliminary step, the report discusses terminology used to refer to procedures no longer prohibited pursuant to the Carter decision. Noting that the Supreme Court of Canada adopts the language of physician-assisted death/dying but does not make findings about terminology, the Panel follows the same approach. The terms physician-assisted death and physician-assisted dying are used interchangeably throughout the report. During its consultations, however, the Panel learned that many healthcare and civil society advocates prefer other expressions, some more explicit–such as assisted suicide and voluntary euthanasia, and some more particular–such as physician-hastened death and physician-administered or physician-prescribed assistance in dying. The connotations, meanings and implications of these different approaches are discussed in the report.
A person seeking physician-assisted death must meet the eligibility criteria set out by the Supreme Court in Carter. According to the Court, an eligible individual is:
a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.Footnote 1.
From this starting point, the report begins to consider the question of who will be eligible to request and receive physician-assisted death. This examination reveals a range of often divergent views on a host of related questions, such as:
- Who is an adult?
- Who is competent, for the purposes of a request for physician-assisted death?
- What does a "grievous and irremediable medical condition" mean?
- What is meant by "enduring suffering that is intolerable to the individual"?
- How is the voluntary nature of the request guaranteed?
The Panel reviewed these and numerous supplementary questions without drawing conclusions, in the interest of representing multiple perspectives and supporting the development of an effective regulatory response to Carter.
The report next considers possible parameters for the request itself, reviewing stakeholder submissions that elaborate on the Court's requirement that the request originate from the individual who seeks a physician-assisted death. Stakeholders shared their perspectives on how–and how often–a request must be communicated, whether an independent witness must verify the request, and what roles–if any–family members should play in the process.
Once a request is initiated, an assessment must be conducted to establish eligibility and to determine if the request is truly voluntary. Consistent with good medical care, these processes demand careful consideration of the patient's suffering and some exploration of therapeutic options. A majority of stakeholders in the Panel's consultations indicated that the person's physician should conduct a careful assessment, as is the case in most jurisdictions that permit assisted-dying. The report reviews proposals for possible supplementary or complementary assessments, such as an evaluation by a second physician or a specialist in palliative care or psychiatry. Some stakeholders suggested that assessments involve other professionals, including nurses, pharmacists, spiritual-care providers and Indigenous elders. The Panel also heard calls for the participation of social workers or psychologists to help assess and address the social-health determinants that can compromise the autonomy of a person who is vulnerable to abuse, coercion or undue influence.
A section of the report focuses on the legal, ethical and clinical aspects of informed consent–a fundamental safeguard. Another section describes various perspectives on waiting periods, also considered a safeguard. Many stakeholders believe that waiting periods, whether mandatory or discretionary, help ensure that the choice of physician-assisted death is not reflexive, but fully considered. As in the other sections of the report, well-reasoned and thoughtful submissions canvass the range of possible approaches.
The Panel next focuses its reporting on the contentious question of who will make the final determination in response to a request for a physician-assisted death. The Panel illuminates the various options heard during consultations. Some stakeholders would require a formal authorization from a judge, tribunal or specialty panel; others believe such decisions are best left between patient and physician.
In subsequent chapters of the report, the Panel addresses issues of clinical participation and compliance, including the important issue of conscience protection. The Carter decision is clear that no physician will be compelled to provide assisted dying if they conscientiously object. Many interveners and stakeholders offered extensive contributions, notably on the matter of referrals–whether a conscientious objector should be required to refer requests to another healthcare professional or institution. Here again, views diverge widely. The report also explores the notion of a duty to inform a person about where to turn for assistance with physician-assisted death. This section also reflects upon issues of appropriate training and certification for physicians, and addresses the enforcement of regulations and legal protections for those who comply with assisted-dying protocols in good faith.
A vital section of the report identifies a striking outcome of the consultations, namely that the vast majority of participants supported–without debate–the priority of developing an effective system of oversight. Advocacy groups, medical regulators, supporters and opponents all recognized that there should be mechanisms in place to ensure that physician-assisted dying occurs in a transparent, effective and trustworthy manner. The Panel presents its findings on existing oversight mechanisms, and discusses the leadership role that governments might play through the implementation of robust, modern and innovative oversight. While some groups, acknowledging the provincial role in health care, contemplated the use of various provincial and territorial oversight bodies, most were in favour of a pan-Canadian approach that would yield consistent policy throughout the country.
Before concluding its report, the Panel offers its perspective on the larger questions of end-of-life care, bringing particular emphasis, consistent with all that was heard in its consultations, to the urgent need for improved access to excellent palliative care across Canada. The Panel heard on many occasions that a request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person's suffering.
As will be evident from the range and complexity of issues described in this report, responding to the Court's decision in Carter requires of our governments and medical regulators a great many deliberations and decisions. Among the competing claims and arguments to be settled in these determinations, none are more fundamental than the issue identified by the Supreme Court as central to its adjudication: namely, the balancing of competing values of great importance. "
On the one hand", the Court wrote,
"stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable." The Panel hopes that the contributions of thousands of Canadians, whose perspectives are reflected in its report, will assist the ministers of Justice and Health as they approach the next and final phase of responding to the Court's decision in Carter.
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