Canadian Nurse

https://www.infirmiere-canadienne.com/blogs/ic-contenu/2015/01/01/la-cour-supreme-annulera-t-elle-les-lois-interdisa

Jan 01, 2015, By: The Canadian Nurses Protective Society

Assisted suicide is now legal in several jurisdictions outside Canada, including the Netherlands, Belgium, Switzerland, Oregon, Washington State and Vermont. In Canada, public support for the decriminalization of assisted suicide is increasing, although assisted suicide remains prohibited under Canada’s Criminal Code. That may soon change and, as patients’ advocates, nurses need to know and understand their roles and current laws relevant to treatment and end-of-life care.

On Oct. 15, 2014, the Supreme Court of Canada heard an appeal in Carter v. Canada (Attorney General), involving two British Columbia women who challenged the constitutionality of subsection 241(b) of the Criminal Code that makes assisted suicide a criminal offence.¹ Gloria Taylor, who suffered from ALS, was one of several appellants who argued that people with serious illnesses should be able to receive the assistance of a health-care professional to end their lives, if they decide that their life had become intolerable. The family of Kay Carter, an 89-year-old mother of seven with advanced spinal stenosis who had already travelled to Switzerland to end her life, were also appellants.

This case had already garnered a lot of attention from the lower courts. In 2012, the B.C. trial court briefly struck down the Criminal Code provision.² In her lengthy and thorough decision, Justice Lynne Smith agreed that the prohibition against assisted suicide infringes the constitutional rights of citizens suffering from debilitating terminal illnesses, such as Taylor and Carter. She ruled that the law was overly broad and the absolute nature of the prohibition was “grossly disproportionate” to the objectives it aimed to accomplish, namely the protection of vulnerable individuals.³ The government appealed, and, in a divided 2-to-1 decision, the Court of Appeal overturned the lower court’s decision and ruled the trial judge was required to follow the legal precedent set by the Supreme Court of Canada over 20 years ago in Rodriguez v. B.C., which upheld the ban on assisted suicide.⁴ A decision by the Supreme Court of Canada is not expected until March 2015 or later.

In addition, lawmakers in Quebec recently passed legislation that would classify physician-assisted suicide as part of the “continuum of care” in that province.⁵ Under the legislation, which is not yet in effect, the patient must be of legal age, suffer an “incurable serious illness” and “irreversible decline in capability” resulting in “constant and unbearable physical or psychological pain.” To begin the process of what the legislation calls “medical aid in dying,” the patient would sign and date a consent form in the presence of a physician. This physician would then ensure the patient meets the criteria set out in the legislation, including having made the decision “freely and without any external pressure.” The opinion of another physician would then be sought. If the second physician agrees, the patient’s wishes would be granted and “the [treating] physician must [subject to any conscientious objection] administer such aid personally and take care of the patient until their death.”

Essentially, the Quebec lawmakers have defined “medical aid in dying” as a medical procedure. At present, assisted suicide is prohibited under the Criminal Code and, since criminal matters are governed federally, a legal constitutional challenge has been mounted. The outcome of the Carter case will have a direct impact on the Quebec legislation, which is expected to take effect at the end of 2015.

Lastly, in March 2014, Conservative MP Steven Fletcher tabled two private members bills on assisted suicide. One bill seeks to change the Criminal Code to allow physicians to assist in dying under certain restricted circumstances.⁶ In December 2014, Senator Nancy Ruth introduced a similar bill in the Senate.⁷ Fletcher’s second bill proposed to set up a commission to monitor the system and review statistics on assisted suicide.⁸

The changing landscape

While the legal arguments advanced on behalf of Rodriguez over two decades ago were very similar to those advanced more recently on behalf of Carter and Taylor, there has been some evolution in how courts assess the constitutionality of laws. Most importantly, in Canada and around the world, there have been dramatic changes in reference to medically assisted dying.

In Rodriguez, the Supreme Court ruled by a 5-4 majority that making physician-assisted suicide legal could adversely affect vulnerable people and was in conflict with “the sanctity of life.”⁹ There were concerns that decriminalization of assisted suicide would increase the risk of abuse. Even if an exception could be made for the terminally ill, there could be no guarantee that assisted suicide could be limited to those who genuinely wished to die.

Assisted suicide is now legal in several countries and some U.S. states. The experiences in those jurisdictions have provided valuable insight into assisted suicide and it appears that the slippery slope concerns that were advanced by some at the Rodriguez hearing have not emerged.

Further, public opinion on the issue has evolved. Opinion polls suggest that an overwhelming majority of Canadians now support assisted suicide. Last year, Dr. Donald Low, a prominent Toronto microbiologist, sent out a message in favour of euthanasia legislation on YouTube before dying of a brain tumour several days later. Also, the Canadian Medical Association has relaxed its long-standing position that Canadian physicians should not participate in euthanasia or assisted suicide. Although the formal policy has not yet been changed, CMA now supports the “right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether to provide medical aid in dying.”¹⁰

There has also been a change in the way courts analyze constitutional challenges and, in particular, whether Charter breaches can be justified.¹¹

Despite the overwhelming public support for assisted suicide, many health-care professionals, including professionals who practise palliative care, have indicated that if the laws were to change, they would refuse to participate in assisted death or medical aid in dying. This position is also grounded in patient welfare, including concerns that terminally ill patients may wish to prematurely end their life as a result of misconceptions regarding the ability to control pain, a fear of dying alone or a wish to relieve their family from what they perceive to be an undue burden. In addition, health-care professionals may be concerned about the legal and moral implications of assisted death.

Health-care providers may also be worried that they will be forced to participate in this type of care, despite their ethical or moral objections. It is important to note that in most jurisdictions that permit assisted suicide, health-care professionals have a right to conscientious objection, which means the right to refuse to participate in activities they consider to be against their moral, ethical or religious beliefs.

What will the Court and lawmakers do?

The arguments advanced before the Supreme Court at the Carter hearing mirrored those in the lower courts. Proponents of assisted suicide argued that the prohibition violates two sections of the Charter: section 7, which sets out the right to life, liberty and security of the person, and section 15, which grants equality rights. They assert that the right to “life, liberty and security of person,” which has already been interpreted in earlier decisions to include the right to personal autonomy, means individuals should be free to choose the time of their death when life has become intolerable as well as the means of their dying, even if they are too ill or have physical limitations that prevent them from taking steps to end their own lives. Essentially, they argued that Canadians have a constitutional right to assisted suicide. They argued that, based on information obtained from the jurisdictions in which assisted suicide is legal, there is little evidence there will be a rush to die if the laws are changed and that strict guidelines can be established to prevent abuse.

Those who support the laws, including the Attorney General of Canada, argued that the laws are constitutionally valid and are necessary to protect Canadian citizens, including those who are most vulnerable in our society.

Many stakeholders believe that the laws will be struck down. It is interesting to note that the Supreme Court of Canada’s current Chief Justice was one of the judges who did not agree with the Court’s conclusion in the Rodriguez case.

If it decides that the Criminal Code provisions are unconstitutional, the Supreme Court would likely provide guidance to the federal and provincial governments so that they may create new laws to govern assisted death. The Court may also provide guidance on which forms of aid in dying are permissible. These may include physician-assisted suicide, where a physician provides information, counsels and prescribes medication; medical aid in dying, where the physician actually administers the lethal substance; and euthanasia, where a third party performs an act to end another person’s life (see Definitions sidebar). The term assisted death encompasses both assisted suicide and active euthanasia.

If the provisions are ruled unconstitutional, lawmakers will likely look to jurisdictions in which assisted death has been legalized for guidance. In jurisdictions such as the Netherlands, Belgium and Luxembourg, both physician-assisted death and euthanasia are permitted. Each jurisdiction has its own regulations for who qualifies, such as requiring patients to have a disease that won’t improve, be suffering unbearably and have capacity to consent to assisted death. Assisted death laws in the United States allow the practice only for those who have six months or less to live, and the rules require the patients to administer the medication themselves. The proposed law in Quebec specifies that the physician must prescribe the lethal dose, administer it and attend to the patient until his or her death.

Another possibility is that officials will choose not to regulate assisted suicide and will leave it to the health professions to regulate the practice through professional standards. Given the difficulties politicians faced in attempting to legislate abortion, some stakeholders¹² believe that this is the most practical and expeditious solution.

Irrespective of the manner in which the practice could be regulated, it will undoubtedly encompass safeguards to protect the interests of all patients. With the benefit of guidance from the courts, lawmakers or regulators will have to consider various issues: Will the physician or another practitioner who is given responsibility be solely involved in implementing the patient’s wishes or could nurses also participate in implementing the wishes of the patient? Who will be able to access assisted death? Will it only be accessible to terminally ill patients or will patients who are not terminally ill but who have serious illnesses be able to request assisted death? Will patients be able to request assisted death in an advance directive or must they be capable at the relevant time? Will parents or relatives of incapable patients be able to request assisted death on their behalf? What if a patient’s family asks that the order be rescinded after the medication has been administered? Creating clear guidelines that address these issues will provide health-care professionals with a structured environment in which to provide this type of care and will also assist in managing the liability risks inherent in this area.

What does this mean for nurses?

Regardless of the outcome of the Carter case, nurses will continue to play a key role in caring for patients at the end of life. This role involves assessing and managing pain, dealing with patients and families in determining end-of-life decisions, discussing treatment choices, and helping patients and their families communicate end-of-life wishes to others. Nurse practitioners may also be prescribing palliative medication. Public opinion reflects the fact that patients want to have a greater say in end-of-life decisions, and nurses will continue to receive more questions from patients and their families related to end-of-life care. It is important for nurses to understand the law and professional standards relating to end-of-life care as they currently exist and as they may evolve. Nurses are reminded to thoroughly document all discussions they have with the patient, family members or other health-care providers about end-of-life questions and decisions, for better continuity of care and to protect themselves against potential liability.

From a legal perspective, it is important that assisted suicide be distinguished from the withholding or withdrawal of futile or unwanted medical treatment or the provision of palliative care, even when these practices shorten life.¹³ These practices are lawful and important components of end-of-life care currently being delivered by nurses across Canada.

If the Supreme Court should decide to recognize a constitutional right to assisted dying for terminally ill patients, could nurses be expected to administer medication ordered by a physician or nurse practitioner for this purpose? If so, nurses will have to determine whether their own ethical, moral or religious beliefs are consistent with providing care to a patient who has made the choice to end his or her life. Employers will likely develop policies to reflect new standards of care and establish a protocol in the event of conscientious objection by a staff member. If the patient chooses to end his or her life in a health-care facility, employees should be prepared to provide for the patient’s other care needs.¹⁴

Also, “medically assisted death” has so far almost exclusively meant “physician-assisted death.” With the scope of practice of nurse practitioners recently expanding to include the prescription of controlled substances in an increasing number of Canadian provinces and territories, will nurse practitioners be expected to assess a patient’s ability to decide to end his or her life and administer care accordingly?

Lastly, given the controversial nature of this issue, concern for the privacy of patients requesting assisted death is critical and their wishes regarding the extent and timing of disclosure to family members and friends will have to be carefully considered and respected.

Assisted death continues to challenge courts, lawmakers and health-care providers. It is an issue that provokes strong, emotional responses. However, it is incumbent upon nurses involved in end-of-life care to become informed of shifting moral and legal landscapes and to uphold their legal and professional responsibilities. The Canadian Nurses Protective Society (CNPS) will continue to monitor the emerging law in this area and is available to provide advice to CNPS beneficiaries with respect to legal issues involving end-of-life care.

¹ The authority of the courts to declare that a law is entirely or partly invalid is found in section 52 of the Constitution Act, 1982, which reads as follows:
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Canadian Charter of Rights and Freedoms forms part of the Constitution.
² Canadian courts have the authority to declare that a legislative provision that is inconsistent with the human rights protected by the Canadian Charter of Rights and Freedoms is null and unenforceable.
³ Carter v. Canada (Attorney General), 2012 BCSC 886
⁴ Carter v. Canada (Attorney General), 2013 BCCA 435
⁵ An Act Respecting End of Life Care
⁶ Bill C-581, An Act to amend the Criminal Code (physician-assisted death)
⁷ Bill S-225, An Act to amend the Criminal Code (physician-assisted death)
⁸ Bill C-582, An Act to establish the Canadian Commission on Physician-Assisted Death
⁹ Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519
¹⁰ DM 5-6 of resolutions adopted at annual meeting of the Canadian Medical Association Aug. 18-20, 2014
¹¹ Canada (Attorney General) v. Bedford, 2013 SCC 72
¹² e.g., BC Civil Liberties Association
¹³ CMA Policy: Euthanasia and Assisted Death, Update 2014
¹⁴ The Oregon Death With Dignity Act: A Guidebook for Health Care Professionals, Update 2008

The law being challenged

The Criminal Code currently provides that “everyone who:

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”

Criminal Code of Canada, RSC 1985, c C-46, s 241

Definitions

The Canadian Medical Association sets out the following definitions in its recently updated policy Euthanasia and Assisted Death.

Medical aid in dying: where a physician intentionally participates in the death of a patient by directly administering a substance, or by providing the means whereby a patient can self-administer a substance leading to their death.

Euthanasia: knowingly and intentionally performing an act, with or without consent, that is explicitly intended to end another person’s life and that includes the following elements: the subject has an incurable illness; the agent knows about the person’s condition; the agent commits the act with the primary intention of ending the life of that person; and the act is undertaken with empathy and compassion and without personal gain.

Physician-assisted death: where a physician knowingly and intentionally provides a person with the knowledge and/or means required to end their own lives, including counselling about lethal doses of drugs, prescribing such lethal doses or supplying the drugs (also referred to as physician-assisted suicide).

The Canadian Nurses Protective Society (CNPS®) is a not-for-profit society that offers legal advice, risk management services, legal assistance and professional liability protection related to nursing practice to eligible registered nurses and nurse practitioners. For more information about CNPS services and benefits, contact CNPS at 1-844-4MY-CNPS or visit cnps.ca.