THE GLOBAL LANDSCAPE OF PHYSICIAN-ASSISTED DYINGOCTOBER 27, 2015

Kathryn Beck and Rosario G. Cartagena

What we aim to cover

Overview of the Global Landscape Comparing Approaches:

Is PAD legislated? What form of PAD is available? Criteria for access Procedural safeguards

Sticky Issues

Goal of today’s presentation

To provide a comparative look at jurisdictions where PAD is legal and regulated

Experiences in other jurisdictions can provide a helpful ‘toolbox’ of potential regulatory options available to us here in Canada

Overview of the Global Landscape

Global landscape

OREGON1997

WASHINGTON2009

MONTANA2009*

QUEBEC*2015

NETHERLANDS2002(Euthanasia)BELGIUM

2002(Euthanasia) SWITZERLA

ND1942*

LUXEMBOURG2009(Euthanasia)

COLOMBIA1997*

VERMONT2013

CALIFORNIA*2016

CANADA2015*

The changing landscapeSw

itze

rlan

d - 1

942

Ore

gon

- 1

997

Net

her

lands

– 20

02

Bel

giu

m - 2

002

Ver

mon

t - 20

13

Luxe

mbou

rg –

200

9

Was

hin

gto

n - 2

009

Queb

ec –

201

5*

Cal

ifor

nia

– 2

016*

Col

ombia

– 1

997*

Mon

tana

– 2

009*

Can

ada

– 20

15*

PAD in the United States

States with PAD legislationStates where PAD is legal by court decision States considering PAD legislation this sessionStates that considered but did not pass PAD legislation this session States with no legislative activity on PAD Accessed at:

http://www.deathwithdignity.org/advocates/national

Comparing Approaches

Is PAD legislated?

Yes No

California √*

Montana √

Oregon √

Vermont √

Washington

√

Belgium √

Luxembourg

√

Netherlands

√

Switzerland

√

Colombia √* not yet in force

What form of PAD is available?

Lethal Prescription

(self-administered)

Lethal Injection (administered by

physician)

Lethal Injection (self-

administered)

California √

Oregon √

Vermont √

Washington

√

Quebec √

Belgium √ √

Luxembourg

√ √

Netherlands

√ √

Switzerland

√ √

Criteria for Access

Residency

Residency Required Non-Residents Eligible

California √

Oregon √

Vermont √

Washington

√

Quebec √

Belgium √*

Luxembourg

√*

Netherlands

√*

Switzerland

√

* but a sufficiently close and long-term physician-patient relationship is required

Voluntariness

Voluntariness Required

California √

Oregon √

Vermont √

Washington √

Quebec √

Belgium √*

Luxembourg √

Netherlands √*

Switzerland √**

* there is a separate line of case law governing very limited circumstances in which a defence of necessity may be available in the case of euthanasia without request from the patient (e.g. in the case of neonates), but this is beyond the scope of the legislation governing assisted dying

** though the requirement is not explicitly legislated, it is assured through various safeguards

Condition and/or suffering

Terminal disease* Unbearable suffering

California √

Oregon √

Vermont √

Washington √

Belgium √

Luxembourg √

Netherlands √

Switzerland √

Quebec At the end of life; suffering from a serious and incurable illness; in an advanced state of irreversible decline in capability; and experiencing constant and unbearable pain

* a terminal disease is defined to mean that the patient is suffering from a terminal, incurable and irreversible disease and death is likely within 6 months

Carter legal test

the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition

Minimum age

Adults ǂ Minors

California √

Oregon √

Vermont √

Washington

√

Quebec √

Belgium √ √ɸ

Luxembourg

à ä

Netherlands

√ √₸

Switzerland

√ √ǂ 18+ɸ Legally competent emancipated minors and minors with capacity of discernment (with consultation of child psychiatrist/psychologist and notification to parent/guardian; only for terminally ill patients)§ Minors ages 16 to 17 (with consent of parent/guardian)₸ Minors ages 12 to 15 (with consent of parent/guardian) and 16 to 17 (with consultation of parent/guardian)

Procedural Safeguards

When and how must request be made?

Oral Request Written Request Witnesses

California √2 at least 15 days apart

√2 (at least 1

independent)

Oregon √2 at least 15 days apart

√2 (at least 1

independent)

Vermont √2 at least 15 days apart

√2 (both independent)

Washington

√2 at least 15 days apart

√2 (at least 1

independent)

Quebec √1

√Signed and dated in

presence of and countersigned by health or social

services professional

Belgium √Number of requests not

specified

Luxembourg

√Number of requests not

specified

Netherlands

√Number of requests not

specified

Capacity

Capacity Requirement

California Capacity to make medical decisions

Oregon Ability to make and communicate health care decisions

Vermont Ability to make and communicate health care decisions

Washington Ability to make and communicate an informed decision

Quebec Capable of giving consent to care

Belgium Not addressed

Luxembourg

Capable and conscious

Netherlands

Not addressed

Switzerland Dignitas: Sound judgmentExit: Physician assesses decisional capacity

Advanced directives

Yes No

California √

Oregon √

Vermont √

Washington

√

Quebec √Patient can specify whether or not they consent to

care that may be required in the event they become incapable of giving consent. Such directives may

not be used to request medical aid in dying

Belgium √If patient unconscious and advanced directive

drafted within 5 yrs

Luxembourg

√If patient unconscious, suffering from incurable

condition and has registered the end of life provision

Netherlands

√If patient has lost ability to express her will,

previously had a discussion with her doctor and meets due care criteria

Informed consent and feasible alternatives

Yes No

California √

Oregon √

Vermont √

Washington

√

Quebec √

Belgium √

Luxembourg

√

Netherlands

√

Consultation with second physician

Consultation with Second Physician

(No Independence Requirement)

Consultation with Second Physician

(Must be Independent)

California √

Oregon √

Vermont √

Washington √

Quebec √*

Belgium √*

Luxembourg √*

Netherlands √* Physician must also discuss patient’s request with members of the patient’s care team. In Luxembourg the patient can object to this.

Consultation with mental health specialist

Yes Not addressed in Legislation

California √If any indication of mental

disorder

Oregon √If appropriate

Vermont √Physician or mental health

specialist must verify capacity in every case

Washington √If any indication of psychiatric or

psychological disorder or depression

Quebec √

Belgium √Mental health specialist must be

consulted if the patient is not terminally ill

Luxembourg √

Netherlands √

Record documentation and reporting

Record Documentation Requirements

Reporting to Oversight Body

California √*Physician must also complete the “End

of Life Option Act Checklist”

√

Oregon √*Physician must also complete the “Oregon Death with Dignity Act

Attending Physician Interview” within 10 days of patient’s ingestion of lethal

medication or death from any other case

√Within 7 days of writing prescription, physician

must send patient’s written request and a report to State Registrar, Center for Health Statistics

Vermont √* √Physician must promptly file a report with

Department of Health

Washington

√* √Within 30 days of writing a prescription, attending physician must file the patient’s written request,

the Attending Physician Compliance Form and the Consulting Physician Compliance Form with the

Department of Health Within 30 days of dispensing medication, the dispensing pharmacist must file a Pharmacy

Dispensing Record FormWithin 30 days of patient’s death, attending

physician must file an Attending Physician After Death Reporting Form

Switzerland

n/a √A report must be filed with the police and a death

certificate must indicate the cause of death

*The Act outlines a specific list of documents to file in the patient’s medical record

Record documentation and reporting

Record Documentation Requirements

Reporting to Oversight Body

Quebec √ √- Within 10 days following administration of medical

aid in dying, physician must inform council of physicians, dentists and pharmacists (the “Council”),

the head of medical services, or the Collège des médecins du Québec (the “College”) of administration- Within 10 days following administration of medical

aid in dying, physician must give notice to Commission on End-of-Life Care (the “Commission”)*

Belgium √ √Physician must complete and deliver to the Federal

Control and Evaluation Commission (FCEC) a prescribed registration form

Luxembourg

√ √Within 4 days of performing euthanasia, physician

must submit a registration document in the appropriate form to the National Control and

Assessment Commission (NCAC)

Netherlands

√ √Physician must report on assisted death to the

Medical Examiner using a prescribed form and report the cause of death to the municipal coroner

*A Commission on End-of-Life Care is established under the Act in Quebec to examine matters relating to end-of-life care

Review and annual report

Review by Oversight Body Annual Report Available to Public

California √State of Public Health Officer annually reviews a sample of medical records

√

Oregon √The Oregon Health Authority annually reviews a sample of medical records

√

Vermont n/a n/a

Washington

√Department of Health annually reviews all

medical records

√

Quebec √- The Council, the College, or its

competent committee must assess the quality of care provided

- On receiving notice from a physician the Commission must assess compliance

√*- The College must prepare an annual report on end-of-life care provided by physicians practicing in private health

facilities

*The Commission must submit a report to the Minister every 5 years on the status of end-of-life care in Quebec

Review and biennial report

Review by Oversight Body Biennial Report

Belgium √FCEC determines whether conditions of the Act

have been met

√

Luxembourg

√NCAC determines whether conditions of the Act

have been met

√

Netherlands

√Medical examiner must conduct an examination

of the deceased patient and ascertain the completeness and accuracy of the physician’s report. Medical examiner then notifies relevant

Regional Review Committee (RRC). RRC determines whether conditions of the Act have

been met

n/a

Switzerland

n/a n/a

Sticky Issues

Sticky Issues

1. The voice of the disability community2. The law as it applies to those suffering from

mental health disease3. The implementation of appropriate, available,

well-developed palliative care services4. The conversation surrounding organ donation 5. The role of advanced directives 6. The assurance of ‘enough’ training for assessing

capacity 7. How will the physician – patient relationship be

construed?8. How to address criminal offence charges or other

related offences

Kathryn Beck +1 416 868 3349

Rosario Cartagena +1 416 943 8904