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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
√ √§
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