THE GLOBAL LANDSCAPE OF PHYSICIAN-ASSISTED DYING OCTOBER 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 OREGON 1997 WASHINGTON 2009 MONTANA 2009* QUEBEC *2015 NETHERLANDS 2002 (Euthanasia) BELGIUM 2002 (Euthanasia) SWITZERLAND 1942* LUXEMBOURG 2009 (Euthanasia) COLOMBIA 1997* VERMONT 2013 CALIFORNIA *2016 CANADA 2015*

The changing landscape

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

Comparing Approaches

Is PAD legislated? YesNo 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 RequiredNon-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√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 RequestWritten RequestWitnesses 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√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 judgment Exit: Physician assesses decisional capacity

Advanced directives YesNo 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 YesNo 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 YesNot 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 Form Within 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 BodyAnnual 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 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 BodyBiennial 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

Sticky Issues

1. The voice of the disability community 2. The law as it applies to those suffering from mental health disease 3. The implementation of appropriate, available, well- developed palliative care services 4. 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 Rosario Cartagena