Patient Directed Medical Assistance in Dying Dr. Qaiser Fahim MBBS, - - PowerPoint PPT Presentation

Patient‐Directed Medical Assistance in Dying

• Dr. Qaiser Fahim MBBS, MHSc (Bioethics)

10 June 2016

Overview

• Overview of the SCC decisions
• Conflict in Ethical Principles
• Conscientious/Institutional Objection
• Duty of Care/Fiduciary Duty
• Privacy and Confidentiality
• SHR Plan and Directive

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Patient‐Directed MAID

Patient‐Directed Medical Assistance in Dying (MAID) means a situation whereby a physician, at the direction of the patient, intentionally participates in the death of a patient by directly administering the substance themselves, or by providing the means whereby a patient can self‐ administer a substance leading to their death.

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Patient‐Directed MAID is NOT:

• 1. Withholding or withdrawing

treatments/interventions that: – have little or no benefit or – are overly burdensome to the patient.

• 2. Palliative Sedation ‐ Increasing pain medications at

the end of life (leading to unintended side effects) with the intention of relieving pain using the principle of double effect.

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Carter v. Canada

• February 6, 2015 ‐ In a landmark decision, the Supreme Court of

Canada unanimously declared the criminal prohibition against “physician‐assisted dying” unconstitutional. – Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Canadian Charter of Rights & Freedoms.1

• “Everyone has the right to life, liberty and security of the

person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. 2 – Criminal Code sections 241 (b) and 14 remain in effect for 12 months till Feb. 6, 2016.

1Carter v. Canada (Attorney General) 2015 SCC 5 2Canadian Charter of Rights and Freedoms s.7

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Extension of Delay in Implementation

• The Attorney General of Canada applied for a 6 month

extension: – SCC decision on Jan 15, 2016 – 4 month extension granted (new date June 6, 2016) – During the 4 month extension period, the Court grants an exemption to those who wish to exercise their rights so that they may apply to the superior court of their jurisdiction for the right to access “Physician‐Assisted Dying”.

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Legislation Affected by SCC Decision

Canadian Criminal Code:

• Section 14 ‐ Consent to Death

– 14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility

• f any person by whom death may be inflicted on the person by

whom consent is given.

• Section 241 (b) ‐ Counselling or aiding suicide

– 241. Every one who: – (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.

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To whom does the SCC decision apply?

• 1. A competent adult who requests & consents;
• 2. An individual who has a grievous medical

condition;

• 3. An individual with a condition that is not

remediable using treatments that the individual is willing to accept; and

• 4. An individual whose suffering is intolerable to

themselves.

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Ethical Principles & Conflict (Ethical Dilemmas)

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Principle of Respect for Autonomy

• Greek: auto = self and nomos = law

– one who gives oneself their own law

• 3 fundamental requirements:

– Liberty is the freedom from controlling influences which allows a decision to be made voluntarily. – Agency is the capacity for decision making & understanding. – Intent is the wish of the individual.

• Respect for an individual’s right to self‐determination such that

their views, decisions and actions are based on their personal values and beliefs. – Basis for Informed Consent

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Beneficence

• Action done to benefit others:

– Contribute to the welfare of others, which may include preventing harm, removing harm, promoting well‐being, or maximizing good

• Moral Obligations:

– Protect the rights of others (vulnerable persons) – Prevent harm from occurring to others

• Medical Context:

– Taking actions that look after the best interest of patients.

• Paternalism (Soft & Hard): – To act like a father
• MAID Conflict: Autonomy vs. Beneficence

– Health care professional’s paternalism:

• includes negative or positive perceptions of quality of life

– Social interests (society’s best interests – preservation, protection) 11

Non‐maleficence

• Latin: primum non nocere ‐ “First, do no harm”

– The Hippocratic Oath "to abstain from doing harm" – Obligations: Not to inflict harm Not to impose risk of harm

• Based on harms versus benefits assessment

– Harms should never outweigh the benefits.

• Typically overrides other principles:
• Avoiding harm is favored over providing benefit
• MAID Conflict: Autonomy vs. Beneficence vs. Non‐Maleficence

– Personal considerations (Conscientious Objection)

• Sanctity of life (faith based) – Court precedence
• Principle based (non‐faith based) – No court precedence

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Justice

Justice requires balancing the ethical principles of Respect for Autonomy, Beneficence and non‐maleficence.

• Appropriately balancing the rights of the society against the rights of an

individual by: – protecting the vulnerable with robust safeguards while allowing equitable access to MAID services.

• i.e. proposed waiting period of 10 days1
• i.e. allowing MAID for competent adults whose deaths are

“reasonably foreseeable” due to a disability or illness.1 – Appropriately balancing HCP’s rights to CO & Patient’s Rights to MAID – Procedural justice allowing for equal opportunity (as defined by law) to access MAID Services across SHR.

• Fair access for all irrespective of location (Home, LTC, Acute Care)

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1BILL C‐ 14: An Act to amend the Criminal Code and to make related amendments

to other Acts (medical assistance in dying), First Reading, April 14, 2016.

Conscientious Objection (CO)

• “In the healthcare context, CO involves the

rejection of some action by a HCP, primarily because the action would violate a personal, deeply held moral or ethical value.”1

• Institutional Objection:“…institutions, like

individuals, can truly harbor conscientious

• bjections to various medical services.”2

1Odell J, Abhyankar R, Malcolm A, Rua A. Conscientious objection in the healing professions: A readers’ guide

to the ethical and social issues. Scholarworks. Indiana University‐Perdue University Indianapolis. 2014.

2Lynch HF. Conflicts of conscience in health care: an institutional compromise. Cambridge: MIT Press; 2008.

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Ethical Duties of Institutions

Ethical Duties of all Institutions (NOT legal duties, pending legislation):

• All institutions should be required to inform patients/residents of any

institutional position on Medical Assistance in Dying, including any and all limits on its provision.

• Non faith‐based institutions, whether publicly‐ or privately‐funded,

must not prevent Medical Assistance in Dying from being provided at their facilities.

• Faith‐based institutions must either allow Medical Assistance in Dying

within the institution or make arrangements for the safe and timely transfer of the patient to a non‐objecting institution for assessment and potentially, provision of Medical Assistance in Dying. The duty of care must be continuous and non‐discriminatory.

Provincial‐Territorial Expert Advisory Group on Physician‐Assisted Dying (November 30, 2015). Final Report. Toronto.

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Balancing HCP’s Rights & Patient’s Rights

Canadian Charter of Rights & Freedoms:

• HCP’s right to Conscientious Objection:

– 2. Everyone has the following fundamental freedoms:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression,

including freedom of the press and other media of communication;

• Patient’s right to access Patient‐Directed MAID:

– 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

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Health Care Provider (Professional) and Patient Relationship

• Premise of ethical duties/legal duties of care and

responsibilities towards the patient are established based on the health care provider‐patient relationship

– Duties are governed by the professions code of ethics

• Whenever a trust relationship exists, the common law

imposes fiduciary duties on the person in the position

• f trust.
• Fiduciary duties: “holding in trust”

Legal or ethical relationship of confidence or trust between two or more parties. – Example: HCP and patient relationship

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Fiduciary Duty: http://en.wikipedia.org/wiki/Fiduciary

Duty of Care

Legal obligation to adhere to a reasonable standard of care when one’s actions may foreseeably harm others.

• Patient’s best interests always come first

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Fiduciary duties:

Fiduciary duties of Health Care Providers:

• Must act in good faith
• Must have loyalty towards the patient
• Never place their own personal interest over

the patients. Taking actions that look after the best interest of patients.

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Duty

• “due” meaning “that which is owing”
• “Conveys a sense of moral commitment or
• bligation to someone or something.
• The moral commitment should result in

action, it is not a matter of passive feeling or mere recognition. When someone recognizes a duty, that person theoretically commits themself to its fulfillment without considering their own self‐interest.”

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Duty: http://en.wikipedia.org/wiki/Duty

Health Care Professional’s Duty of care

1. A physician who declines to provide Medical Assistance in Dying must not abandon a patient who makes this request; 2. the physician has a duty to treat the patient with dignity and respect. 3. The physician is expected to provide sufficient information and resources to enable the patient to make his/her own informed choice and access all options for care. 4. This means arranging timely access to another physician or resources, or offering the patient information and advice about all the medical options available. – The obligation to inform patients may be met by delegating this communication to another competent individual for whom the physician is responsible. Physicians must not provide false, misleading, intentionally confusing, coercive or materially incomplete information, and the physician’s communication and behaviour must not be demeaning to the patient or to the patient’s beliefs, lifestyle choices or values.

College of Physicians and Surgeons of Saskatchewan, Physician Assisted Dying Policy

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SHR REVISED Directive

2.1 All inquiries related to Patient‐Directed MAID received by Staff must be forwarded to the Most Responsible Physician (MRP) for review and response. 2.2 SHR requires:

• 2.2.1 A Court Order for provision of Patient‐Directed MAID or
• 2.2.2 Confirmation and documentation of known legal requirements for Patient‐Directed MAID.

2.3 Patient‐Directed MAID that involves SHR, its facilities or resources must occur in a timely manner and must comply with:

• 2.3.1 The Court Order;
• 2.3.2 This Directive;
• 2.3.3 The College of Physicians and Surgeons of Saskatchewan Policy, except to the extent that Policy is inconsistent with

the Court Order. 2.4 Patient‐Directed MAID will not occur at faith based affiliate sites that have established a conscientious objection to Patient‐ Directed MAID.1 2.8 All Staff (including physicians and students) may contact Ethics Services if they have a conscientious objection to participating in Patient‐Directed MAID. 2.10 Physicians and Staff should consult their professional association and SHR Legal Counsel before participating in Patient‐ Directed MAID.

• 2.10.1 Staff participating in Patient‐Directed MAID without a Court Order must be aware of the risks of participating in MAID

including possible criminal charges.

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1 Regional Health Services Act, Saskatchewan, 2014 s 38(3)

SHR Privacy & Confidentiality Policy

Need to Know:

• 23(1) A trustee shall collect, use or disclose only the

personal health information that is reasonably necessary for the purpose for which it is being collected, used or disclosed. Disclosure:

• 27(1) A trustee shall not disclose personal health

information in the custody or control of the trustee except with the consent of the subject individual or in accordance with this section, section 28 or section 29.

The Health Information Protection Act, SK

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MAID: Current Plan for SHR

• Medical Assistance in Dying Sub‐Committee of SHR/SCA Joint

Ethics Committee.

• Interim Directive for the Health Region to deal with the possibility
• f a request to the court for Patient‐Directed MAID.

– 7 June 2016 till Federal legislation is enacted.

• Development of a Policy for Patient‐Directed Medical Assistance in

Dying to be developed based on new legislation by June 6, 2016. – RPAC stakeholders consultation process

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SK Registered Nurses’ Association

Medical Assistance in Dying

• The Supreme Court of Canada gave the Federal Government the

deadline of June 6, 2016 to have legislation in place for Medical Assistance in Dying. This has not occurred as Bill C‐14 is currently before the Senate. Patients may however request medically assisted dying from a physician under the Carter decision of the Supreme Court and the applicable policy of the College of Physicians and Surgeons of Saskatchewan.

• Without Bill C‐14 in place, Registered Nurses (RNs) and Registered

Nurse (Nurse Practitioners) RN(NP)s do not have a specific criminal code exemption for discussing or assisting in the delivery of medical assistance in dying.

http://srna.org/index.php/component/content/article/17‐main‐ section/340‐medical‐assistance‐in‐dying

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Resources:

• Nov 2015 ‐ PAD. College of Physicians and Surgeons of Saskatchewan Policy

https://www.cps.sk.ca/imis/Documents/Legislation/Policies/POLICY%20‐%20Physician‐ Assisted%20Dying.pdf

• Physician‐Assisted Death: Discussion Paper April 2016

http://www.casw‐acts.ca/en/casw‐releases‐discussion‐paper‐physician‐assisted‐death

• SK Registered Nurses Association:

http://srna.org/index.php/component/content/article/17‐main‐section/340‐medical‐ assistance‐in‐dying

• 28 January 2016 – Canadian Society of Hospital Pharmacists PAD: Position Statement

(2016) http://www.cshp.ca/dms/dmsView/1_Physician‐Assisted‐Dying‐Position‐Statement‐ %28English%29.pdf

• SK MOH MAID webpage:

http://www.saskatchewan.ca/residents/health/accessing‐health‐care‐services/medical‐ assistance‐in‐dying

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Contact Information

If you have any questions regarding SHR’s Directive please contact:

• Dr. Rob Weiler, Senior Medical Officer

(306) 655‐0190

• Mr. Evert Van Olst, SHR Legal Counsel

(306) 655‐7795 Individuals with conscientious objection may contact Ethics Services via RUH Switchboard (306) 655‐1000.

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Questions

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