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POLICY - Medical Assistance in Dying: Patient's Death is Not Reasonably Foreseeable

BACKGROUND

Canadian legislation has established significantly different requirements for medical assistance in dying depending upon whether the patient’s death is, or is not, reasonably foreseeable.

This document addresses the legal requirements and the expectations of the College for physicians dealing with a request for medical assistance in dying from a patient whose death is not reasonably foreseeable.

A companion policy - Medical Assistance in Dying – Patient’s Death is Reasonably Foreseeable addresses the legal requirements and the expectations of the College for physicians dealing with a request for medical assistance in dying from a patient whose death is reasonably foreseeable.

On February 6, 2015, the Supreme Court of Canada struck down the law prohibiting medical assistance in dying.^[1] The Canadian Government amended the Criminal Code provisions effective June 17, 2016.² The legislation was further amended effective  March 17, 2021.³ The legislation⁴ contains a number of requirements that must exist for physicians or nurse practitioners to provide Medical Assistance in Dying. The most important of those are:

1. 1. The patient must be eligible for health services funded by a government in Canada;
2. 2. The patient must be at least 18 years of age and capable of making decisions with respect to their health;
3. 3. The patient must have a grievous and irremediable medical condition;
4. 4. The patient must have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure and was made after the patient was informed that they have a grievous and irremediable medical condition;
5. 5. The patient must have given informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering including palliative care;
6. 6. Two practitioners (physicians or nurse practitioners) must confirm that the patient meets the criteria established in the legislation to receive medical assistance in dying.

The legislation states that a person has a grievous and irremediable medical condition only if they meet all of the following criteria:

1. 1. They have a serious and incurable illness, disease, or disability;
2. 2. They are in an advanced state of irreversible decline in capability; and
3. 3. That illness, disease, disability or state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

The legislation specifically excludes a mental illness as an illness, disease or disability that can qualify a person for Medical Assistance in Dying. It is anticipated that the legislation will remove this restriction effective March 17, 2024.

The amendments to the legislation which came into effect on March 17, 2021 provide for two forms of eligibility for Medical Assistance in Dying. That legislation made the following changes to the legislation if a patient’s death is not reasonably foreseeable:

The requirements include:

1. a. If neither of the two practitioners has expertise in the condition that is causing the person’s suffering, one of them must consult with a medical practitioner or nurse practitioner who has that expertise and both must share the results of that consultation;
2. b. The physician or nurse practitioner who will provide the medical assistance in dying must obtain a written opinion from a medical practitioner or nurse practitioner which confirms that person meets the criteria for medical assistance in dying;
3. c. The physician or nurse practitioner who will provide the medical assistance in dying must ensure that the person has been informed of the means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care and has been offered consultations with relevant professionals who provide those services or that care;
4. d. The physician or nurse practitioner who will provide the medical assistance in dying must ensure that both they, and the physician or nurse practitioner who provided the written opinion confirming that the person meets the criteria for medical assistance in dying have discussed with the person the reasonable and available means to relieve the person’s suffering and both of them agree with the person that the person has given serious consideration to those means;
5. e. There must be at least 90 days between when the first assessment begins and the day that medical assistance in dying is provided, unless both practitioners are of the opinion that the loss of the person’s capacity to provide consent to receive medical assistance in dying is imminent.

The legislative amendments which came into effect on March 17, 2021 require a physician administering medical assistance in dying to a patient whose death is not reasonably foreseeable to confirm immediately prior to administering the medications to cause death that the patient wants to receive medical assistance in dying. The legislation states:

(k) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying

Patients whose death is not reasonably foreseeable cannot sign a document authorizing a physician to administer medical assistance in dying if they lose capacity to consent. The only exception to this is if the patient has chosen self-administration which has not resulted in the patient’s death.

The legislation allows patients to sign a document authorizing a physician or nurse practitioner to administer medical assistance in dying if the patient has chosen self-administration and the following conditions are met:

(a) before the person lost the capacity to consent to receiving medical assistance in dying, they and the medical practitioner or nurse practitioner entered into an arrangement in writing providing that the medical practitioner or nurse practitioner would

(i) be present at the time the person self-administered the first substance, and

(ii) administer a second substance to cause the person’s death if, after self-administering the first substance, the person lost the capacity to consent to receiving medical assistance in dying and did not die within a specified period;

(b) the person self-administers the first substance but did not die within the period specified in the arrangement and lost the capacity to consent to receiving medical assistance in dying; and

(c) the physician or nurse practitioner administers medical assistance in dying in accordance with the terms of the arrangement.

The legislation requires that a physician must give the patient an opportunity to withdraw their request and must ensure that the patient gives express consent to receive medical assistance in dying immediately before providing the medical assistance in dying.

Accordingly, it is the College’s view that a physician cannot prescribe medications for self-administration unless the physician will be personally present when the patient self-administers the medication to confirm the patient’s consent to receiving medical assistance in dying.

The legislation contains a number of other provisions that provide protection to individuals involved in assisting patients to access medical assistance in dying. Among those are:

1. 1. Protection for physicians and nurse practitioners who provide medical assistance in dying based upon a reasonable but mistaken belief that the patient qualified;
2. 2, Protection for pharmacists and other health care workers who assist with medical assistance in dying;
3. 3. Protection for individuals who provide information to patients about medical assistance in dying;
4. 4. Protection for individuals who assist patients to self-administer medication that has been prescribed to them for the purpose of medical assistance in dying.

The College of Physicians and Surgeons of Saskatchewan has established this policy for the following purposes:

1. 1. To provide information that will assist physicians and the public in understanding the criteria and procedural requirements that must be met regarding medical assistance in dying; and
2. 2. To outline the specific legal requirements to participate in medical assistance in dying and to establish expectations of physicians who are involved with medical assistance in dying.

1. Conscientious Objection

A physician who declines to provide medical assistance in dying must not abandon a patient who makes this request; the physician has a duty to treat the patient with dignity and respect. 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. This means arranging timely access to another physician or resources, or offering the patient information and advice about all the medical options available. 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. The obligation to inform patients may be met by delegating this communication to another competent individual for whom the physician is responsible.

A physician who declines to provide medical assistance in dying must make available the patient’s chart and relevant information (i.e., diagnosis, pathology, treatment and consults) to the physician(s) providing medical assistance in dying to the patient when authorized by the patient to do so; and document the interactions and steps taken by the physician in the patient’s medical record, including details of any refusal and any resource(s) to which the patient was provided access. 

A physician must continue to provide care and treatment not related to MAID if the person wishes to continue receiving care from the physician. A physician with an existing therapeutic relationship with a person requesting MAID (independent of the MAID request) must not discharge the person from their care on the grounds that a MAID request has been made or the person is also receiving services from a MAID team or centralized process.

2. Requirements for Access to Medical Assistance in Dying – Patients Whose Death is Not Reasonably Foreseeable

The Federal Legislation requirements are set out in the introductory section of this policy.

The College requires that:

1. A. Any physician who conducts an assessment for the purpose of determining if a patient is eligible for medical assistance in dying pursuant to these requirements must:
   1. 1. have received approval from the Saskatchewan Health Authority or the College to perform assessments for the purpose of determining if a patient is eligible for medical assistance in dying; and,
   2. 2. be satisfied that the patient seeking medical assistance in dying has a grievous and irremediable medical condition which the physician has verified by:
      1. a. a clinical diagnosis of the patient’s medical condition; and
      2. a. a thorough clinical assessment of the patient which includes consideration of all relevant, current and reliable information about the patient’s symptoms and the available medical treatments to cure the condition or alleviate the associated symptoms which make the condition grievous, including, where appropriate, consultation with another qualified physician;
   3. 3. be fully informed of the current relevant clinical information about the patient and his/her condition;
   4. 4. be qualified to render a diagnosis and opine on the patient's medical condition or be able to consult with another physician with relevant expertise for the limited purpose of confirming the diagnosis, prognosis or treatment options;
   5. 5. use appropriate medical judgment and utilize a reasonable method of assessment;
   6. 6. when assessing whether a patient’s illness, disease or disability or state of decline causes the patient enduring physical or psychological suffering that is intolerable to the patient and cannot be relieved under conditions that the patient considers acceptable, ensure that:
   7. 1. a. the unique circumstances and perspective of the patient, including his/her personal experiences and religious or moral beliefs and values have been seriously considered;
      2. b. the patient is properly informed of his/her diagnosis and prognosis in relation to the current or impending associated symptoms; and
      3. c. treatment options described to the patient include all reasonable medical treatments to cure the condition or alleviate the associated symptoms which make it grievous or, if the patient is terminal, palliative care interventions; and the patient adequately understands the:
         1. 1. current and anticipated course of physical symptoms, ability to function and pain and suffering specific to that patient; and
         2. 2. effect that any progression of physical symptoms, further loss of function or increased pain may have on that specific patient; and
         3. 3. available treatments to manage the patient’s symptoms or loss of function or to alleviate his/her pain or suffering.
      4. d. the physician has responded to all reasonable questions from the patient regarding MAiD.
      5. e. The physician has taken steps to be aware of the person’s values and beliefs, and will ensure that the person’s request for MAiD is unambiguous and enduring. They must ensure it is rationally considered during a period of stability, and not during a period of crisis. This may require serial assessments.
      6. f. If the physician assesses a person’s request for MAiD virtually or obtains consultations in relation to MAiD virtually, the physician will:
      7. 1. 1. confirm the patient agrees with the assessment proceeding virtually;
         2. 2. determine that a valid conclusion can be drawn about the person’s eligibility for MAID; and,
         3. 3. ensure that the assessment aligns with the provisions of other relevant College standards and policies.
2. B. Each physician must document in the patient’s medical record all information that is relevant to his/her role and findings in respect to each of the specific requirements of any assessment related to the patient’s eligibility for medical assistance in dying.

3. Practice standards recommended by the MAiD Practice Standards Task Force established by Health Canada

The MAiD Practice Standards Task Force^[1] was convened by the government of Canada to establish a Model Practice Standard that could be adopted by regulatory bodies. The Model Standard^[2] states the following in relation to establishing whether a patient has a grievous and irremediable condition that eligibility.

The College requires that physicians comply with the following practice standards taken from the Model Practice Standard:

9.4 Grievous and irremediable medical condition

9.4.1 To find a person eligible for MAID, the provider and assessor must be of the opinion that the person has ‘a grievous and irremediable medical condition.’

9.4.2 A person has a ‘grievous and irremediable medical condition’ if:

(a) they have a serious and incurable illness, disease, or disability;

(b) they are in an advanced state of irreversible decline in capability; and,

(c) that illness, disease, or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

9.5 Serious and incurable illness, disease, or disability

9.5.1 To find a person has a grievous and irremediable medical condition, the provider and assessor must be of the opinion that the person has a serious and incurable illness, disease, or disability.

9.5.2 ‘Incurable’ means there are no reasonable treatments remaining where reasonable is determined by the clinician and person together exploring the recognized, available, and potentially effective treatments in light of the person’s overall state of health, beliefs, values, and goals of care.

9.6 An advanced state of irreversible decline in capability

9.6.1 To find a person has a grievous and irremediable medical condition, the provider and assessor must be of the opinion that the person is in an advanced state of irreversible decline in capability.

9.6.2 Capability refers to a person’s functioning (physical, social, occupational, or other important areas), not the symptoms of their condition. Function refers to the ability to undertake those activities that are meaningful to the person.

9.7 Enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

9.7.1 To find that a person has a grievous and irremediable medical condition, the provider and assessor must be of the opinion that the person’s illness, disease, or disability or state of decline causes the person enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

9.7.2 For the purposes of forming the opinion that the suffering criterion for MAID is met, assessors and providers:

(a) must explore all dimensions of the person’s suffering (physical, psychological, social, existential) and the means available to relieve them;

(b) must explore the consistency of the person’s assessment of their suffering with the person’s overall clinical presentation, expressed wishes over time, and life narrative;

(c) must be of the opinion that it is the person’s illness, disease, or disability and/or state of decline in capability that is the cause of the person’s suffering;

(d) must be of the opinion that the suffering is enduring; and

(e) must respect the subjectivity of suffering.

[1] https://www.canada.ca/en/health-canada/services/medical-assistance-dying/background-document-work-practice-standards-task-group.html

[2] https://www.canada.ca/en/health-canada/services/medical-assistance-dying/model-practice-standard.html

4.  Specific Requirements for Assessing Medical Decision Making Capacity

The College requires that:

1. A. Any physician who conducts an assessment of a patient for the purpose of determining if the patient is capable of making decisions with respect to their health pursuant to the federal requirements must:
   1. 1. be fully informed of the current relevant clinical information about the patient and his/her mental and physical condition;
   2. 2. be able to assess competence in the specific circumstances of the patient whose capacity is being assessed or be able to consult with another physician with relevant expertise for the limited purpose of assessing the patient’s medical decision making capacity; and,
   3. 3. as capacity is fluid and may change over time, physicians must be alert to potential changes in a person’s capacity. Where appropriate, assessors and providers should undertake serial assessments of a person’s decision-making capacity.
2. B. When it is unclear whether the patient is competent to make a decision to request medical assistance in dying, a psychiatric/psychological consult is required to examine the patient's decision-making capacity (or limitations) in greater detail.
3. C. Each physician must document in the patient’s medical record all information that is relevant to his/her role and findings in respect to each of the specific requirements of any assessments of a patient’s medical decision making capacity.

 
5.  Specific Requirements for Obtaining Informed Consent

The Federal Legislation requirements are set out in the introductory section of this policy.

The College requires that:

1. A. Physicians who obtain informed consent for medical assistance in dying must have sufficient knowledge of the patient’s condition and circumstances to ensure that:
   1. 1. the patient is properly informed of his/her diagnosis and prognosis in relation to the current or impending associated symptoms; and
   2. 2. the treatment options described to the patient include all reasonable medical treatments to cure the condition or alleviate the associated symptoms which make it grievous and/or palliative care interventions where the patient is terminal; and
   3. 3. the patient is offered appropriate counseling resources; and
   4. 4. the patient fully understands that:
      1. a. death is the intended result of the pharmaceutical agent(s); and
      2. b. the potential risks and complications associated with taking the pharmaceutical agent(s).

2. B. Each physician who obtains informed consent from the patient for medical assistance in dying must:

   1. 1. have either conducted his/her own assessment or be fully informed of the assessments conducted by other physicians of the patient’s medical condition and the patient’s medical decision making capacity; and
   2. 2. meet the legal requirements for informed consent, including informing the patient of:
      1. a. material information which a reasonable person in the patient’s position would want to have about medical assistance in dying;
      2. b. the material risks associated with the provision/administration of the pharmaceutical agent(s) that will intentionally cause the patient's death; and

   3. 3. meet with the patient separate from family members or others who may influence the patient’s decision at least once to confirm that his/her decision to terminate his/her life by medical assistance in dying is voluntary and that the patient has:

      1. a. made the request him/herself thoughtfully; and
      2. b. a clear and settled intention to end his/her own life by medical assistance in dying after due consideration;
      3. c. considered the extent to which the patient has involved or is willing to involve others such as family members, friends, other health care providers or spiritual advisors in making the decision or informing them of his/her decision; and
      4. d. made the decision freely and without coercion or undue influence from family members, health care providers or others.
3. C. Each physician must document in the patient’s medical record all information that is relevant to his/her role and findings in respect to each of the specific requirements for obtaining informed consent.

 
6.  Additional Requirements of the Federal Legislation

The federal legislation also:

1. (a) requires that physicians who, in providing medical assistance in dying, prescribe or obtain a substance for that purpose must, before any pharmacist dispenses the substance, inform the pharmacist that the substance is intended for that purpose;
2. (b) requires physicians to comply with guidelines established for the completion of certificates of death for patients to whom medical assistance in dying is provided;
3. (c) creates criminal offences for knowingly failing to comply with the eligibility and safeguard requirements set out in criminal code and destroying documents with the intent to interfere with a patient’s access to medical assistance in dying, the assessment of a request for medical assistance in dying or a person seeking an exemption related to medical assistance in dying;
4. (d) requires physicians to provide a written report in several circumstances related to Medical Assistance in Dying. The reporting requirements are set out under the heading Reporting and Data Collection in this policy. A physician who receives a written request for Medical Assistance in Dying is generally required to file a report with the Saskatchewan Health Authority.

 
7. Specific Requirements of the Administering Physician

In this section “administering physician” refers to a physician who administers pharmaceutical agent(s) for the purpose of terminating the patient’s life.

Administering physicians are responsible for confirming that all of the requirements of this policy have been met before the pharmaceutical agent(s) that intentionally cause the patient’s death can be administered. There can be only one administering physician for each patient.

A. The College requires that:

• 1. an administering physician must have the authorization of the Saskatchewan Health Authority to administer pharmaceutical agents to cause the death of patients where the pharmaceutical agent(s) are administered in a Saskatchewan Health Authority facility or the College if the pharmaceutical agents(s) are administered elsewhere;
• 2. an administering physician must have appropriate knowledge and technical competency to administer the pharmaceutical agent(s) in the appropriate form and/or dosage that will terminate the patient’s life in the manner in which the patient was informed that it would terminate his/her life at the time the patient provided his/her consent;
• 3. an administering physician must be readily available to care for the patient at the time the pharmaceutical agent(s) that intentionally brings about the patient's death is administered by the administering physician or taken by the patient until the patient is dead; and
• 4. an administering physician must certify, in writing, that he/she is satisfied on reasonable grounds that all of the following requirements have been met:
  1. The patient is at least 18 years of age;
  2. The patient’s medical decision making capacity to consent to receiving medication that will intentionally cause the patient's death has been established in accordance with the requirements of the Criminal Code and this policy;
  3. All of the requirements of the Criminal Code and this policy in relation to assessing eligibility for medical assistance in dying and obtaining and documenting informed consent have been met; and
• 5. an administering physician must ensure that the requirements of physicians set out in all relevant federal and provincial legislation, including the Criminal Code in respect to reporting and/or registering the cause and manner of the patient’s death, including completing all required forms specified by the legislation or regulations, are met in a timely fashion.

Use of Standard Forms

The Medical Assistance in Dying (MAiD) - Provincial Program established a working group with broad representation to provide recommendations for forms which could be used to assist physicians, nurse practitioners, pharmacists and other health professionals to comply with the legislation, including the reporting requirements which came into effect November 1, 2018.

The College expects that physicians who receive a written request for Medical Assistance in Dying, or who assess patients for eligibility for medical assistance in dying, or who administer or prescribe for medical assistance in dying will utilize the forms that have been developed and follow the protocols contained in those forms.

The Medical Assistance in Dying (MAiD) - Provincial Program may also establish an expectation that the Medical Certificate of Death should be completed by the administering physician.

If additional documentation is developed by the working group, it will be made available through the Medical Assistance in Dying (MAiD) - Provincial Program, the Saskatchewan Health Authority and/or the College of Physicians and Surgeons website.

Reporting and Data Collection

The Government of Canada adopted regulations which came into effect November 1, 2018. Those regulations require physicians to provide a written report in several circumstances related to Medical Assistance in Dying. A physician is required to report if the physician receives a written request for Medical Assistance in Dying and one of the following occurs:

1. a. The physician provides Medical Assistance in Dying;
2. b. The physician refers a patient to another practitioner or a care coordination service for Medical Assistance in Dying;
3. c. The physician assesses a patient and determines the patient is not eligible for Medical Assistance in Dying;
4. d. The physician becomes aware that the patient has withdrawn the request;
5. e. The physician becomes aware that the patient has died from a cause other than Medical Assistance in Dying.

If a physician is required to report, that report is made to the Saskatchewan Health Authority. The Saskatchewan Health Authority, together with other stakeholders including the Government of Saskatchewan and the College, have approved forms for use by physicians to meet this reporting obligation.

Reporting forms can be Faxed to the Saskatchewan Health Authority at 1-833-837-9006.