On June 17, 2016, after much debate in the House of Commons and the Senate, the federal government passed Bill C-14 (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)), establishing the federal framework under which certain individuals can request and receive medical assistance in dying (“MAID”) in Canada.
With the amendments to the Criminal Code, physicians and nurse practitioners may now legally provide MAID to eligible individuals. Pharmacists and other health care workers can also be legally involved in a supportive role. While the Criminal Code is very prescriptive in terms of the criteria that must be met to be eligible to receive MAID and the safeguards that must be in place before MAID can be provided, many health professionals and facilities are struggling with how to implement this legislation.
Provincial/territorial health authorities and regulators, including the regulatory Colleges for physicians, nurse practitioners, and pharmacists have established, or are in the process of establishing, their own professional requirements and standards. From a risk management perspective, it is critical to have a well thought out strategy for addressing requests for MAID.
Where MAID is requested or provided in a facility, it is the joint responsibility of the facility and the health care providers to ensure compliance with applicable laws and regulatory requirements. The following considerations are crucial to determining the role of the facility:
- Under the Criminal Code, the physician or nurse practitioner providing MAID is responsible to ensure that the legal requirements are met. Similarly, the physician or nurse practitioner is responsible for ensuring that the patient has the requisite capacity to make this decision and has provided informed consent to MAID, and for complying with any professional regulatory requirements.
- Facilities in which MAID may be requested or provided have an independent obligation to meet reasonably expected standards with respect to ensuring that its physicians, nurse practitioners and other health care providers involved in MAID are reasonably qualified to do the work they might be expected to perform.
- Facilities are also accountable for establishing systems, policies and procedures to assure compliance with legislation and common law responsibilities in respect of MAID.
- Where facility employees are involved in the provision of MAID, the facility is vicariously liable for the acts and omissions of those employees performed in the course of their employment. This obviously has implications in terms of potential liability for the facility and requires exploration. Facilities must ensure that employees providing MAID or operating in a supportive role are functioning within their scope of practice and in accordance with applicable laws and regulatory requirements, and do not undertake activities that they are not authorized by law to perform.
- For facilities that provide MAID, policies must take into consideration the right of eligible individuals under the Canadian Charter of Rights and Freedoms (“Charter”) to request MAID, balanced against the right of health care providers in respect of conscientious objection.
- Facilities that decline to provide MAID, due to conscientious objection or otherwise, will need to ensure that processes are in place to respond to such requests in a manner that does not contravene eligible individuals’ Charter rights.
- Facilities must ensure that their processes for providing MAID and for responding to concerns or disputes regarding MAID, including requests for a second opinion, transfers of care, challenges to findings of incapacity, and conscientious objections by facility physicians, nurse practitioners and other providers are dealt with in the proper forum(s) and in compliance with applicable laws and regulatory requirements.
From a legal and risk management perspective, facilities that might encounter requests for MAID should have clear policies and procedures on this issue, which should be supported by forms and other tools, education for physicians, nurse practitioners and staff, and strategies and tools for communicating with patients and families.
To the extent that some or all of the necessary elements regarding the provision or refusal of MAID are not addressed, the facility may have a more difficult time taking the position that MAID was provided, or refused, in accordance with the law.