Implementing Carter

“The Big Issues”October 27, 2015

• What did Carter resolve?• What did Carter not fully resolve?• What did Carter not address at all?

What did Carter resolve?

The floor for any regulatory framework

Physician-assisted dying =

Assisted suicide+

Voluntary euthanasia

Criteria for access

• Cannot have depression as excluded condition• Cannot limit to terminal illness• Cannot exclude mental illness

Criteria for access

• Cannot define “adult” as specific age (e.g., age of majority)– any presumption of incapacity must be rebuttable

• Cannot have non-ambivalence as criterion

Consent

• “Informed” requires disclosure of:• diagnosis • prognosis• feasible alternative options including palliative

care aimed at reducing pain and avoiding loss of personal dignity

• risks of PAD

Consent

• Consent standards/processes can be higher than most other medical decision-making

BUT

• Consent standards/processes cannot be higher than other end-of-life decision-making

Other settled matters

• System must reconcile right to life, liberty, security of person (patient access) and freedom of conscience (providers, institutions, and patients)

• Regulatory framework should include scrupulous monitoring and enforcement

• Regulation of PAD is shared F/P/T jurisdiction

What did Carter not fully resolve?

Digging deeper

Who does what parts of regulatory framework?

• Federal government• Provincial/territorial governments• Health professional regulatory bodies

How to reconcile life, liberty, and security of the person & conscience

• Right to access• Right to self-determination

• Duty to inform re: position on issue• Duty to inform re: PAD among options• Duty to refer/transfer care• Duty to provide• Individual/Institutional right to opt out/refuse

• Faith-based and concept of medicine/palliative care-based objections

• Values-based and concept of medicine/palliative care-based requests and willingness to provide

What heightened scrutiny processes in relation to consent are justifiable?

• Commonly suggested– Two physicians confirming criteria met– Psychiatry consult– Waiting/cooling off period

BUT

• None of these is required for other end-of-life decision-making

When does patient need to be competent/suffering?

• competent at time of request, experiencing intolerable suffering, and competent at time of provision of assistance

• competent at time of request and experiencing intolerable suffering but lost competence before assistance could be provided

• not yet experiencing the intolerable suffering but preparing advance directive while competent in anticipation of such suffering

Who can provide PAD?

• Medical practitioner• “person under the direction of a medical

practitioner”– Regulated health professional• Registered nurse, nurse practitioner• Pharmacist

How should monitoring and enforcement system be designed?

• Case review• System oversight

What Carter didn’t address at all

de novo

• Physician presence at death• Appeal processes where access denied• Citizen, permanent resident, insured person• Access in rural and remote areas (esp. North)• Insurance

– Life– Liability

• Death certificates• Payment for PAD services• Support, Consultation, and Education Network of Providers• Public education

Bottom line

• The SCC settled a lot of issues– Stop trying to Bedford Carter

• Lots of work has already been done on the issues not fully settled (or addressed at all) by the SCC– Stop trying to reinvent the wheel

• We can meet the deadline– Get feds to the table– Start communicating and cooperating

• Stop duplicating efforts• Stop trying to regulate that which lies outside jurisdiction