Legal Ease: Taking stock of end-of-life care

Until recently, it was a crime in Canada to assist others in ending their lives. Those grievously and irremediably ill and in pain could not seek a physician’s assistance in dying. A person facing this prospect had two options: take his own life prematurely, often by violent or dangerous means, or suffer until death occurred from natural causes.

But a woman with a neuro-degenerative disease wanted to die in dignity and challenged certain sections of the Canadian Criminal Code before the courts. The Supreme Court of Canada held that provisions of the Criminal Code unjustifiably infringed upon the Charter of Rights and should be voided to the extent that they prohibit physician assisted death for 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, intolerable to the individual in the circumstances of his or her condition. It further held that an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy; The prohibition denied such persons the right to make decisions concerning their bodily integrity and medical care thus infringing on their liberty and leaving them to endure intolerable suffering.

Even before this Supreme Court judgment had been rendered, Quebec had drafted a new law scheduled to take effect in December of this year. The title of this law is “An Act respecting end-of-life care”. End-of-life care is defined as “palliative care provided to end-of-life patients and medical aid in dying”. Medical aid in dying means “care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death”. The purpose of this law is “to ensure that end-of-life patients are provided care that is respectful of their dignity and their autonomy.” The care is to be administered with compassion, understanding, courtesy, respect and fairness. Under the terms of this new law, every person whose condition requires it has the right to receive end-of-life care, subject to the specific requirements contained in the Act.

For those living with incurable pain, this may be a dream come true. But for others, especially seniors, it has caused much concern over the creation of a “slippery slope” leading to removal of protection of those who are vulnerable. The court felt that a permissive regime with properly designed and administered safeguards is capable of protecting vulnerable people from abuse and error. The care to be administered under the Quebec legislation will only result where there exists “freely and clearly expressed wishes with respect to care, in particular by establishing an advance medical directives regime.” The physician must make sure that the request is being made freely; i.e., by ascertaining that it is not being made as a result of external pressure. Consent to continuous palliative sedation must be given in writing on the form prescribed by the Minister and be filed in the patient’s record.

This law regulates in detail how end-of-life care is to be carried out.

Those who request terminal palliative sedation must “be informed of the prognosis, the irreversible and terminal nature of the sedation and the anticipated duration of the sedation. It obliges the physician to inform the patient and his close relations of the policy of the institution with respect to end-of-life care and provide the patient with all the information regarding therapeutic possibilities and palliative care, which he requires in order to make an informed decision.

In Quebec, to be eligible to obtain medical aid in dying, the patient must be capable of consenting, be at the end of life, suffer from a serious and incurable illness, suffer from an advanced state of irreversible decline in capability and “experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.” If the patient does not meet these criteria, the aid cannot be obtained. The request must be made by the patient on a special form signed by him and countersigned by a health or social services professional. It may be withdrawn at any time.

Before administering the medical aid requested, the physician must assure himself that the patient is eligible for the aid and must consult a second independent physician to confirm that the eligibility criteria have been met. He must also make sure that the request has been made voluntarily and without any external pressure, that the patient understands what options are available to him and has had the opportunity to discuss his request with others if he so wishes. As further protection to the patient, an eleven-member Commission on end-of-life care has been created to examine all matters relating to end-of-life care, to advise and report to the Minister and to oversee that the provisions of the law are carried out.

The Act provides for the creation of a special register of advance medical directives prepared by individuals in the event that they become incapable of giving consent to treatment at a future time. When a patient becomes incapable of providing consent, the physician can consult the register and act accordingly. It is to be noted that health-care instructions already provided in a Mandate in the Event of Incapacity do not constitute advance medical directives under this Act and those who wish to have advance medical directives should see their lawyer or notary.

The Quebec Act respecting end-of-life care was approved last June and is scheduled to become law in December 2015. Although healthy people often don’t like to think about end-of-life issues or pain, palliative care and aggressive treatment, perhaps now is a good time to start.

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