medical assistance in dying€¦ · anju joshi, dept. of health, aging and society, mcmaster...

Medical Assistance in Dying February 9th, 2017

HLA 15th Annual Estates & Trusts

Seminar 1

Medical Assistance in Dying

The Hamilton Law Association

15th Annual Estates & Trusts SeminarFeb. 9th, 2017

Anju Joshi, Dept. of Health, Aging and Society, McMaster

University

Catherine A. Olsiak, Simpson Wigle LAW LLP

Thank you to Paul Demarco, Student-at-Law, Simpson Wigle Law LLP for his assistance in preparing this material

*The information, opinions, and other materials contained herein are provided as of the date of the presentation hereof and are subject to change without notice. SimpsonWigle LAW LLP and McMaster University do not make any representation or warranty, express or implied, in, and takes no responsibility for any errors and omissions which may be contained herein or accepts any liability whatsoever for any loss arising from any use of or reliance on the information, opinions, and other materials contained herein.

An Act to amend the Criminal Code and to make related amendments to other acts (medical assistance in dying) S.C. 2016 c.3Royal Assent – June 17th, 2016

Federal Legislation



Seminar 2

PREAMBLE TO THE ACT

Context:

Preamble

Whereas the Parliament of Canada recognizes the autonomy of persons who have a grievous and irremediable medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in dying;



Seminar 3

Preamble

Whereas robust safeguards, reflecting the irrevocable nature of ending a life, are essential to prevent errors and abuse in the provision of medical assistance in dying;

Preamble

Whereas it is important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled;



Seminar 4

Preamble

Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives;

Preamble

Whereas persons who avail themselves of medical assistance in dying should be able to do so without adverse legal consequences for their families —including the loss of eligibility for benefits — that would result from their death;



Seminar 5

Whereas suicide is a significant public

health issue that can have lasting and

harmful effects on individuals, families and

communities

Preamble

Permitting access to medical

assistance in dying for competent

adults whose deaths are reasonably

foreseeable strikes appropriate

balance between autonomy and

protection of vulnerable persons

Preamble



Seminar 6

Preamble

And whereas it is desirable to have a consistent approach to medical assistance in dying across Canada recognizing the province’s jurisdiction over various matters related to medical assistance in dying;

Preamble

And whereas the Government of Canada has committed to develop non-legislative measures that would support the improvement of a full range of options …namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition;



Seminar 7

Preamble

Takeaways from Preamble:

MAID regulatory framework to evolve among various levels of government and professional bodies

Must always balance patient autonomy with (perceived or real) vulnerabilities

“Non-legislative measures” will play a role in carrying out Parliament’s intent, beyond the “four corners” of the Act

ELIGIBILITY FOR MAID

Context:



Seminar 8

Eligibility Criteria

Eligible for health services in Canada

18 years of age and capable of making decisions with respect to their health

Grievous and irremediable medical condition where death is reasonably foreseeable

Request for MAID is voluntary, and made without undue influence

Patient must provide informed consent, and must have been notified about alternative options (palliative care, etc.)

MAID – Other provisions of Note

Independent Witnesses – cannot be a beneficiary of a will or financial plan of requestor

Independence of Practitioners – cannot be a beneficiary of a will or financial plan of requestor



Seminar 9

Related Amendments to Federal Acts

Pension Act

Corrections and Conditional Release Act

Canadian Forces Members and Veterans Re-establishment and Compensation Act

Independent Review

Minister of Justice and Minister of Health to conduct reviews of issues relating to requests by mature minors for medical assistance in dying; to advance requests and to requests where mental illness is the sole underlying medical condition

Reviews will be conducted by Canadian Council of Academies (not-for-profit organization)



Seminar 10

Provincial Legislation

Bill 84 Legislative

AmendmentsMedical Assistance in Dying Statute

Law Amendment Act, 2016 – First

Reading December 7, 2016

Bill 84 Legislative AmendmentsMedical Assistance in Dying Statute Law Amendment Act, 2016 – First Reading December 7, 2016

The Coroner’s Act

Excellent Care of All Act, 2010

Freedom of Information and Protection of Privacy Act

Municipal Freedom of Information and Protection of Privacy Act

Vital Statistics Act

Workplace Safety and Insurance Act, 1997



Seminar 11

Ontario – What else is happening?

Ministry of Health and Long-Term Care – Clinician Referral Service

MAID – covered by OHIP

THE HUMAN FACTOR

Context:



Seminar 12

Some Statistics

MAID-attributed deaths1:

Ontario: 87

Alberta: 23

Rejections: 23

British Columbia: 66

Manitoba: 12

Requests: 60

Saskatchewan: <5

1 Perkel, C.; About 200 Canadians have had a physician-assisted death since June; Toronto Star;

October 6, 2016.

Assisted Dying

Number of people who have accessed MAID in Canada

characteristics of these individuals

Statistics difficult to obtain as it appears Federal Government is not tracking the numbers



Seminar 13

Sources: Media reports and Dying with Dignity Organization

744 People in Canada have received Medically Assisted Death since the practice became legal across Canada (June 17-Dec. 16)

Most suffered from conditions such as neurological diseases, including MS or amyotrophic lateral sclerosis.

Information on gender, age and where procedure performed not made available.

Source: Avis Favaro, CTV News

Some Statistics

Characteristics of MAID instances in Alberta2

Average age of patient: 67

Most cited conditions:

Cancer

Multiple Sclerosis (MS)

Amyotrophic Lateral Sclerosis (ALS)

Effective referrals from faith-based hospitals: 2

2 Perkel, C.; About 200 Canadians have had a physician-assisted death since June; Toronto Star;

October 6, 2016.



Seminar 14

Oregon Statistics: Heightened Risk??

In 2015 of the 132 DWDA (Death with Dignity Act) deaths during 2015, most patients (78%) were 65 or older.

People over 80 formed 30% of the group of patients whose requests were refused and 13% of those whose request were granted and carried out

Battin, van der Heide, Ganzini,van der Wal, Onwuteaka-Philipsen (2007) Legal Physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact of patients in “vulnerable” groups”, Law, Ethics and Medicine, Journal of Medical Ethics, 33: 591 - 597.

Quotes on Personhood

Personhood reflects many different aspects of the

person, encompassing those characteristics, attributes and strengths which make each individual different from another and unique as a human being. Personhood includes our values, spirituality, habits, abilities, hopes, fears and preferences welded together through years of living.

(Buzzell, Personhood Teaching Package, ECHA, 1993, p.6)



Seminar 15

Quotes

In order to know how persons ought to be treated we must know what makes them persons and how, as persons, they may be “harmed”.(Harrison, 1990a, p. 77)

It is much more important to know what sort of person has a disease than what sort of a disease a person has.(Osler, date unknown)

Ageism

The stereotyping of, and discrimination against, individuals or groups because of their age (WHO, 2012)

One-in-five (21%) Canadians say older Canadians are a burden on society

(Revera Report on Ageism, 2015)

Implication of language (Silver Tsunami)



Seminar 16

Abuse

Several forms of abuse

Up to 10% of older Canadians experience a form of abuse, it’s estimated that “only one in five incidents of elder abuse are reported”

Vulnerability

Ageism

Social Isolation

Abuse

Biases about “quality of life”

Dependence on Family members for emotional, financial or functional support

Older adults who experience undue influence or pressure and physicians lacking training to assess this



Seminar 17

Concerns

“There is concern that people who are vulnerable or who find themselves in a situation of vulnerability may be pressured consciously or unconsciously to opt for medical assistant in dying either because of financial circumstances or because the medical help that they need is not necessarily available”

Trudo Lemmens, Ethicist and UofT law professor, in CTV News report.

“Euthanasia in the Netherlands is on a slippery slope and that euthanasia is used to solve other problems than putting an end to unbearable suffering”.

Victor Lamme, Professor of Cognitive Science, in Volkskrant

Wanting to Die – May Sarton

Sometimes

I want to die.

To be done with it all

At last,

Never make my bed again

Never answer another letter

Or water the plants,

None of those efforts

I must make

Every day

To keep alive.



Seminar 18

Wanting to die…continued

But then

I do not want to die.

The leaves are turning

And I must see

The scarlet and gold

One more time,

A single yellow leaf

Tumbling through

The sunlit air

One last time.

Some Statistics

Public Opinion following Carter (2015) 3

Support for MAID generally: 85%

Support for advance directive where patient has already been diagnosed with a qualifying illness: 80%

Support for advance directives where patient has not yet been diagnosed with a qualifying illness: 71%

3 Poll: “Dying with Dignity Canada: February 2016”; Ipsos Public Affairs; ISIN code FR0000073298,

Reuters ISOS.PA, Bloomberg IPS:FP



Seminar 19

Way forward

Awareness of own biases and stereotypes

A vulnerability assessment as suggested by the Advocacy Centre for the Elderly

Address Feelings of lack of Purpose, burden, isolation, loneliness of older adults

Cultural relevance… collectivist vs individualistic world view

ESTATES PRACTICE AND MAID



Seminar 20

Revisiting the Public Opinion Poll about Advance Requests

Issue of Advanced Consent for MAID

(Dying with Dignity Canada Ipsos Poll )

80% - support assisted death for competent patients at time of request but not competent at time request is carried out; as long as diagnosis of grievous and irremediable medical condition when request made

can we do now for clients who wish to document intentions if suffering from a progressive debilitating disease?for a “future” relative to Advance Requests? –Document wishes in the context of a progressive debilitating disease – The outcome is certain, but the timing of a natural death which is “reasonably foreseeable” is not certain. i.e. ALS




82% - support assisted death for competent

patients at time of request but not competent at time request is carried out; shorter period between request and assisted death (eg. Request Friday to schedule assisted death for Monday, person slips into a coma over the weekend)



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71% - support assisted death for competent patients at time of request even if they do not have a grievous and irremediable medical condition




Choice between 2 distinct options -64% -support assisted death even if the patient is not competent at the time the request is to be carried out vs. 36% who said patient should be competent



Seminar 22

Advance Requests

What does this actually mean? –

Federal vs. Provincial Legislative Framework

Opens the discussion to revisit the intersection of law, healthcare delivery, organizations and regulatory bodies

Let’s Take a Step Back….Law Commission of Ontario – Health Care Consent, Advance Care Planning, and Goals of Care Practice Tools: The Challenge to Get it Right – December, 2016

Prerequisite – similarly as when informed consent is obtained, person must be capable to enter into a discussion regarding advance care planning;

Advance Care Planning (ACP) – no real definition –interpreted differently in different jurisdictions

“A patient may express “wishes” that reflect their feelings or initial thoughts about potential treatments, should they one day need such a treatment. Consequently, wishes are not “decisions”, but rather they are speculative statements”



Seminar 23

Let’s Take a Step Back…. Cont’d.Law Commission of Ontario – Health Care Consent, Advance Care Planning, and Goals of Care Practice Tools: The Challenge to Get it Right – December, 2016

“ACP wishes are not consents”

Even when wishes are known, the challenge is contextualizing it to the decision at hand which needs to be made

Be careful of the practice tools out there!

What is the Role of the Estate Practitioner regarding Advance Requests?

Educate the client about the current federal legislation

Eligibility does NOT include consent by a substitute decision maker; consent must be given by a competent adult

Educate the client about the current legal framework, and work within the framework

Caution the client about “google lawyer” and internet forms and tools on the internet



Seminar 24

Power of Attorney for Personal Care

Any Opportunities ?

Sample POA Clauses

Medically Assisted Death

I have conveyed to my family and my attorney(s) my values, beliefs and wishes about the importance of being able to exercise my right to a dignified death and to access medically assisted death if I am suffering from a physical or mental condition which prevents me from living a life with any quality whatsoever as I personally have expressed quality to be from time to time. An example of such a condition would be advanced ALS. Accordingly, if it is lawful to do so, and if my condition fits the legislative criteria to enable me to access medically assisted death, I authorize and direct my attorney to make such application on my behalf. I give this authority and direction to my attorney notwithstanding that such attorney may be a beneficiary of my estate and/or any life insurance policies or registered plans.

Age of Client - ?



Seminar 25

Sample POA Clauses

Medically Assisted Death Provision

Currently of no legal effect with respect to MAID

However, may be of future assistance in providing evidence of person’s wishes and beliefs in those circumstances where a request for assisted death is under review

In the presenter’s view, a plausible scenario would be where there is an extremely short period of incapacity (a few days) between the Date of the Request by the Competent Requestor and the Date of the Scheduled assisted death;

Sample POA Clauses

For clarity with respect to the application of the paragraph above, I instruct my attorneys to consider experimental treatment and/or clinical trials, if traditionally accepted medical treatments are unsuccessful, and accordingly the reference in the above paragraph to ‘no reasonable expectation of hope or recovery’ refers to the exhaustion of, or unavailability of, non-traditional and/or experimental treatments.

Age of Client - ?



Seminar 26

Lessons for Practice in the Consideration of Advance Requests

Continue vigilance in releasing Personal Care

Powers of Attorney; educating clients regarding appropriate use / when it comes into effect;

Continue to practise what we know within the current legislative framework

Wait and See - Results of the independent reviews will provide further information and direction

Does anything change for Estate Practitioners?

….or is this an opportunity to revisit our current practice?



Seminar 27

Friedberg et al. v. Korn, 2013 ONSC 960 – Issues for Consideration

End of life clause in personal care power of attorney

What is “heroic”? What is “artificial”?

Presumption that clause reflected grantor’s prior capable wish

Presumption can be rebutted if sufficient or compelling evidence that grantor did not know or approve contents

Finding – Presumption was re-butted;

Lessons for practice – Ensure client is provided advice within the “legislative” framework – be careful not to overstep into a “medical/procedural” framework; Canvass the client’s “values”, “wishes”, “beliefs”;

Challenges for practice – Will your client pay you your hourly rate to have this discussion?

Other Future Legal Issues?

Treatment vs. not a Treatment?

Determination of Capacity? (See College of

Physicians and Surgeons Guidelines – reference to Health Care Consent Act)

Will there be a venue for a hearing or

appeal relative to process?



Seminar 28

In Summary

MAID is a new and evolving frontier

The Estate Practitioner’s role is to ensure the client understands the existing legal framework and the legal choices available within this framework

Autonomy and Choice- Papering Client Discussions/Decisions (Wishes, Values, Beliefs)

Protection of the vulnerable - Through advocacy and meeting solicitor obligations when obtaining instructions

References / Resources

Legislation

Federal

An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), SC 2016, c. 3

Criminal Code of Canada, RSC 1985, c. C-46

Provincial

Bill 84, Medical Assistance in Dying Statute Law Amendment Act, 2016

Coroners Act, RSO 1990, c. C.37

Excellent Care for All Act, 2010, SO 2010, c.14

Freedom of Information and Protection of Privacy Act, RSO 1990 c. F.31

Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c. M.56

Vital Statistics Act, RSO 1990, c. V.4

Workplace Safety and Insurance Act, 1997, SO 1997, c. 16 Sched. A

Decisions

Friedberg et al. v Korn, 2013 ONSC 960

Policy Papers and Guidelines

Law Commission of Ontario –Health Care Consent, Advance Care Planning, and goals of Care practice Tools: the Challenge to Get it Right –

Improving the Last Stages of Life December 2016; Prepared by Judith A. Wahl, Mary Jane Dykeman, Tara Walton

Medical Assistance in Dying, Policy Statement #4-16; College of Physicians and Surgeons of Ontario, June 2016

Guidance on Nurses’ Roles in Medical Assistance in Dying; College of Nurses of Ontario, July 29, 2016

Medical Assistance in Dying: Guidance to Pharmacists and Pharmacy Technicians; Ontario College of Pharmacists, June 27, 2016

Dying with Dignity Canada February 2016

http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2016_3/FullText.html

http://laws-lois.justice.gc.ca/eng/acts/C-46/

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4460&detailPage=bills_detail_status

https://www.ontario.ca/laws/statute/90c37

https://www.ontario.ca/laws/statute/10e14

https://www.ontario.ca/laws/statute/90f31

https://www.ontario.ca/laws/statute/90m56

https://www.ontario.ca/laws/statute/90v04

https://www.ontario.ca/laws/statute/97w16

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc960/2013onsc960.html

http://www.lco-cdo.org/ACE%20DDO%20Walton%20Formatted%20Dec%202,2016%20LCO.pdf

http://www.cpso.on.ca/CPSO/media/documents/Policies/Policy-Items/medical-assistance-in-dying.pdf?ext=.pdf

http://www.cno.org/globalassets/docs/prac/41056-guidance-on-nurses-roles-in-maid-july-4-vfinal.pdf

http://www.ocpinfo.com/library/practice-related/download/PhysicianAssistedDeath.pdf





Seminar 29

References ( Human Factor section)

Battin, van der Heide, Ganzini,van der Wal, Onwuteaka-Philipsen (2007) Legal Physician-asssisted dying in Oregon and the Netherlands: evidence concerning the impact of patients in “vulnerable” groups”, Law, Ethics and Medicine, Journal of Medical Ethics, 33: 591 - 597.

Buzzell, M., (1993). “The Concept of Personhood”. In Personhood: A Teaching Package (4-15). by Buzzell, M., Meredith, S., Monna, K., Sergeant, D., and Ritchie, L., Hamilton: Educational Centre for Aging and Health, McMaster University.

Harrrison, C. (1990). Personhood, Dementia and the Integrity of a Life. Canadian Journal on Aging, 12 (4), 428-440.

Osler, W.

São José, J.M. (2016) Preserving Dignity in Later Life, Canadian Journal on Aging, 35 (33) 332-347.

Sarton, May (1994) “Wanting to Die”, Coming into Eighty: New Poems, W.W. Norton and Company Inc.

medical assistance in dying€¦ · anju joshi, dept. of health, aging and society, mcmaster...

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