The seemingly endless and increasingly urgent debate on how to make Canadians' right to die a legal reality just got jacked up a notch.
On Monday afternoon, the Provincial-Territorial Advisory Group on Physician-Assisted Dying released its much-anticipated report.
The recommendations are thoughtful and even-handed – not remarkable given the makeup of the panel – and, most importantly, provide much-needed answers to the many unanswered questions in the Supreme Court of Canada ruling.
To refresh memories: On Feb. 6 of this year, the top court, ruling on the case Carter v Canada, struck down the Criminal Code prohibitions against assisted dying, saying competent adults with a "grievous and irremediable medical condition" have the legal right to request assisted death. The ruling was then suspended for 12 months to give governments and regulatory bodies time to deal with the practicalities, from drafting new laws (or not) through to creating billing codes for the medical procedure hastening death.
The new report, not surprisingly, recommends that provinces and territories adopt a pan-Canadian strategy on end-of-life care – including palliative care and assisted death – to ensure a harmonized and equitable regulatory system.
The committee also rejected the suggestion that no law was required, saying: "A strong legislative response is essential."
But, it is the panel's clear recommendations about who can provide assisted death, as well as how and where, that really moves the discussion forward. The report includes a number of striking recommendations, including a few of which will likely inflame passions:
· Patients should have access to both "physician-administered" and "self-administered physician-assisted" dying. Practically, that means patients who meet the criteria for assisted death should be able to get a prescription for a lethal medication that they take themselves (as is done in Oregon) or have a physician administer a cocktail of lethal drugs (as required in Quebec's law);
· Other health-care professionals, such as nurse practitioners and physician assistants, should be able to provide assisted death under the supervision of a physician (this would require an amendment to the Criminal Code because the court rule applied only to physician-assisted death; · There should be "no imposition of arbitrary age limits" on requesting assisted death. While the Supreme Court said only adults could request hastened death, the legal definition of adult often includes so-called mature minors, as young as 14;
· The key aspect of the ruling, that a condition must be "grievous and irremediable" should not be delineated by legislation, but left to patients to define. Practically, that means the procedure would not be limited to patients with terminal conditions like ALS and cancer, but could extend to psychiatric illnesses (as long as a person is considered competent) and other conditions where quality of life is poor;
· There should not be any prescribed waiting/reflection period after a request to die is made. (Quebec law calls for a two-week cooling off period after a request for assisted death);
· Health-care providers such as physicians have a right to conscientiously object to providing assisted death, but they also have a duty to inform patients of their views and refer them to a provider who has no such objection. (The Supreme Court addressed this issue by saying "nothing in this decision would compel physicians to provide assistance in dying" but "the Charter rights of patients and physicians will need to be reconciled");
· Faith-based institutions can opt out of providing assisted death, but they have a duty to transfer the patient to a non-objecting institution, and they must provide care that is "continuous and non-discriminatory;"
The new report is refreshing in that it doesn't rehash age-old arguments about whether assisted death is right or wrong, moral or immoral, legal or illegal. Rather, the starting point is that, given the Supreme Court ruling, this is going to happen, so it should happen in a clear, coherent fashion.
But the debate is far from over.
On Tuesday, a federally appointed panel with a mandate will release its report, and the recommendations will likely be significantly different on some key points.
Ultimately, it will be up to elected officials – and, equally important, regulatory bodies for physicians, nurses and other health-care professionals – to craft laws and rules that respect the will of the public and the parameters of the court ruling.
This work also needs to be done quickly, as the Feb. 6 deadline is approaching. (While Ottawa has requested an extension, that should be a non-starter. The court has no real reason to give politicians more time just because they have shamelessly dithered on this file.)
In their deliberations, however, legislators and regulators should bear in mind the pragmatic, sensible advice that the provincial-territorial committee offers up in its concluding remarks, that new laws need not be complicated and that in fact, less is more:
"Physician-assisted dying should be treated as one appropriate medical practice within a continuum of services available at the end of life. Where we recommended different or additional processes or mechanisms, it is because we have concluded they are necessary to appropriately balance the competing interests and values at stake and to ensure that the regulatory framework assures the trust of Canadians."
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Members of the provincial-territorial panel:
Dr. Jennifer Gibson, director of the University of Toronto Joint Centre on Bioethics;
Maureen Taylor, a physician assistant and high-profile health journalist;
Dr. Doug Cochrane, chair of the B.C. Patient Safety and Quality Council;
Dr. Jocelyn Downie, professor in the Faculties of Law and Medicine at Dalhousie University;
Ruth Goba, human-rights lawyer and commissioner of the Ontario Human Rights Commission;
Dr. Nuala Kenny, professor emeritus, Dalhousie University department of bioethics;
Professor Arthur Schafer, director of the Centre for Professional and Applied Ethics, University of Manitoba;
Dr. Trevor Theman, registrar of the College of Physicians and Surgeons of Alberta;
Dr. Karima Velji, president of the Canadian Nurses Association.
André Picard