Growing pains for effective referrals for medical aid in dying

Close up of woman with nasal cannula and worried husbandIn light of its 2016 legalization, Canada needed to put in place new rules regarding who would be providing appropriate care to those requesting medical aid in dying. The jurisdictional complexity required new laws, rules and policies developed at all levels of government as well as the relevant professional regulatory authorities. Firstly, the 2016 amendments to the Criminal Code which put into force the Supreme Court’s decision in Carter v. Canada (AG) required that medical aid in dying be performed by a medical practitioner licensed to practice medicine in the relevant province.[1] As regulation of health professionals is an area of provincial jurisdiction, it fell to the provincial governments (and their relevant health professional regulatory authorities) to develop policies and procedures permitting access to medical aid in dying.

One of the primary concerns for provinces and their regulatory authorities was balancing the needs of patients requesting medical aid in dying against the clinical judgment and freedom of conscience of the individual health practitioners. Indeed, the Carter case submissions were made to the Supreme Court by several health practitioner organizations, including the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies and the Physicians’ Alliance against Euthanasia that it would be a breach of health practitioners’ Charter rights to force them to provide medical aid in dying services against their personally held beliefs and professional judgment.[2] The Supreme Court reiterated that nothing in its judgment should be construed to compel a health practitioner to provide medical aid in dying.[3] However, as the two competing interests were required to be balanced, the provinces have seemingly adopted a common standard that where a health practitioner will not provide medical aid in dying, he or she, or the institution at which they practice, must provide an effective referral to a health practitioner who is willing to assist the requesting patient.[4]

In the past ten months, the province of Ontario has come under criticism for failing to foster a system capable of providing effective referrals for patients whose health practitioner conscientiously objects to providing medical aid in dying services. In Ontario, news reports indicate that while the Government of Ontario has started to compile a confidential list of health practitioners willing to provide medically assisted dying services, these names are only available to other health practitioners and cannot be searched by patients themselves.[5] Beyond individual health practitioner objections, a number of health facilities in Ontario, and throughout Canada, have indicated that they will not be providing medical aid in dying as institutions. Such facilities include those operated by members of the Catholic Health Alliance of Canada such as St. Michael’s Hospital in downtown Toronto as well as many other hospitals and long-term care facilities across the country.[6] Indeed, there has already been an incident in Vancouver where a man died at St. Paul’s Hospital waiting for an ambulance to take him to another facility which was willing to provide medical aid in dying services.[7] Such tragic cases underscore the continued need for Canada’s provinces and their health systems to develop safe and effective means by which patients properly requesting medical aid in dying can get the services they need promptly and effectively.

Scott Scambler
Associate Editor

[1] Criminal Code RSC 1985 c. C-46 at s. 241.1 and following

[2] 2015 SCC 5 at para 130.

[3] Ibid at para. 132.

[4] See An act Respecting End-of-Life Care, RSQ c. s. 32 at s. 31; College of Physicians and Surgeons of Ontario, Policy 4-16 “Medical Assistance in Dying” available at: http://www.cpso.on.ca/Policies-Publications/Policy/Medical-Assistance-in-Dying

[5] See: http://www.theglobeandmail.com/news/national/ontario-lacking-a-co-ordinating-service-for-patients-who-want-an-assisted-death/article34555961/

[6] See: http://www.chac.ca/ethics/docs/PAD/Alliance%20Position%20Paper%20on%20Physician-Assisted%20Death.pdf

[7] See: http://news.nationalpost.com/news/canada/b-c-man-faced-excruciating-transfer-after-catholic-hospital-refused-assisted-death-request