Patient ‐ Directed Medical Assistance in Dying Dr. Qaiser Fahim MBBS, MHSc (Bioethics) 10 June 2016
Overview • Overview of the SCC decisions • Conflict in Ethical Principles • Conscientious/Institutional Objection • Duty of Care/Fiduciary Duty • Privacy and Confidentiality • SHR Plan and Directive 2
Patient ‐ Directed MAID Patient ‐ Directed Medical Assistance in Dying (MAID) means a situation whereby a physician, at the direction of the patient, intentionally participates in the death of a patient by directly administering the substance themselves, or by providing the means whereby a patient can self ‐ administer a substance leading to their death. 3
Patient ‐ Directed MAID is NOT: 1. Withholding or withdrawing treatments/interventions that: – have little or no benefit or – are overly burdensome to the patient. 2. Palliative Sedation ‐ Increasing pain medications at the end of life (leading to unintended side effects) with the intention of relieving pain using the principle of double effect. 4
Carter v. Canada February 6, 2015 ‐ In a landmark decision, the Supreme Court of • Canada unanimously declared the criminal prohibition against “physician ‐ assisted dying” unconstitutional. – Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Canadian Charter of Rights & Freedoms. 1 • “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. 2 – Criminal Code sections 241 (b) and 14 remain in effect for 12 months till Feb. 6, 2016. 1 Carter v. Canada (Attorney General) 2015 SCC 5 2 Canadian Charter of Rights and Freedoms s.7 5
Extension of Delay in Implementation • The Attorney General of Canada applied for a 6 month extension: – SCC decision on Jan 15, 2016 – 4 month extension granted (new date June 6, 2016) – During the 4 month extension period, the Court grants an exemption to those who wish to exercise their rights so that they may apply to the superior court of their jurisdiction for the right to access “Physician ‐ Assisted Dying”. 6
Legislation Affected by SCC Decision Canadian Criminal Code: Section 14 ‐ Consent to Death • – 14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. Section 241 (b) ‐ Counselling or aiding suicide • – 241. Every one who: – (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. 7
To whom does the SCC decision apply? 1. A competent adult who requests & consents; 2. An individual who has a grievous medical condition; 3. An individual with a condition that is not remediable using treatments that the individual is willing to accept; and 4. An individual whose suffering is intolerable to themselves. 8
Ethical Principles & Conflict (Ethical Dilemmas) 9
Principle of Respect for Autonomy Greek: auto = self and nomos = law • – one who gives oneself their own law 3 fundamental requirements: • – Liberty is the freedom from controlling influences which allows a decision to be made voluntarily. – Agency is the capacity for decision making & understanding. – Intent is the wish of the individual. Respect for an individual’s right to self ‐ determination such that • their views, decisions and actions are based on their personal values and beliefs. – Basis for Informed Consent 10
Beneficence Action done to benefit others: • – Contribute to the welfare of others, which may include preventing harm, removing harm, promoting well ‐ being, or maximizing good Moral Obligations: • – Protect the rights of others (vulnerable persons) – Prevent harm from occurring to others Medical Context: • – Taking actions that look after the best interest of patients. Paternalism (Soft & Hard): – To act like a father • MAID Conflict: Autonomy vs. Beneficence • – Health care professional’s paternalism: • includes negative or positive perceptions of quality of life – Social interests (society’s best interests – preservation, protection) 11
Non ‐ maleficence Latin: primum non nocere ‐ “First, do no harm” • – The Hippocratic Oath "to abstain from doing harm" – Obligations: Not to inflict harm Not to impose risk of harm Based on harms versus benefits assessment • – Harms should never outweigh the benefits. Typically overrides other principles: • Avoiding harm is favored over providing benefit • MAID Conflict: Autonomy vs. Beneficence vs. Non ‐ Maleficence • – Personal considerations (Conscientious Objection) • Sanctity of life (faith based) – Court precedence • Principle based (non ‐ faith based) – No court precedence 12
Justice Justice requires balancing the ethical principles of Respect for Autonomy, Beneficence and non ‐ maleficence. Appropriately balancing the rights of the society against the rights of an • individual by: – protecting the vulnerable with robust safeguards while allowing equitable access to MAID services. • i.e. proposed waiting period of 10 days 1 • i.e. allowing MAID for competent adults whose deaths are “reasonably foreseeable” due to a disability or illness. 1 – Appropriately balancing HCP’s rights to CO & Patient’s Rights to MAID – Procedural justice allowing for equal opportunity (as defined by law) to access MAID Services across SHR. • Fair access for all irrespective of location (Home, LTC, Acute Care) 1 BILL C ‐ 14: An Act to amend the Criminal Code and to make related amendments 13 to other Acts (medical assistance in dying), First Reading, April 14, 2016.
Conscientious Objection (CO) • “In the healthcare context, CO involves the rejection of some action by a HCP, primarily because the action would violate a personal, deeply held moral or ethical value.” 1 • Institutional Objection:“…institutions, like individuals, can truly harbor conscientious objections to various medical services.” 2 1 Odell J, Abhyankar R, Malcolm A, Rua A. Conscientious objection in the healing professions: A readers’ guide to the ethical and social issues. Scholarworks. Indiana University ‐ Perdue University Indianapolis. 2014. 14 2 Lynch HF. Conflicts of conscience in health care: an institutional compromise. Cambridge: MIT Press; 2008.
Ethical Duties of Institutions Ethical Duties of all Institutions (NOT legal duties, pending legislation): All institutions should be required to inform patients/residents of any • institutional position on Medical Assistance in Dying, including any and all limits on its provision. Non faith ‐ based institutions, whether publicly ‐ or privately ‐ funded, • must not prevent Medical Assistance in Dying from being provided at their facilities. Faith ‐ based institutions must either allow Medical Assistance in Dying • within the institution or make arrangements for the safe and timely transfer of the patient to a non ‐ objecting institution for assessment and potentially, provision of Medical Assistance in Dying. The duty of care must be continuous and non ‐ discriminatory. 15 Provincial ‐ Territorial Expert Advisory Group on Physician ‐ Assisted Dying (November 30, 2015). Final Report. Toronto.
Balancing HCP’s Rights & Patient’s Rights Canadian Charter of Rights & Freedoms: • HCP’s right to Conscientious Objection: – 2. Everyone has the following fundamental freedoms: • (a) freedom of conscience and religion; • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; • Patient’s right to access Patient ‐ Directed MAID: – 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 16
Health Care Provider (Professional) and Patient Relationship • Premise of ethical duties/legal duties of care and responsibilities towards the patient are established based on the health care provider ‐ patient relationship – Duties are governed by the professions code of ethics • Whenever a trust relationship exists, the common law imposes fiduciary duties on the person in the position of trust. • Fiduciary duties: “holding in trust” Legal or ethical relationship of confidence or trust between two or more parties. – Example: HCP and patient relationship Fiduciary Duty: http://en.wikipedia.org/wiki/Fiduciary 17
Duty of Care Legal obligation to adhere to a reasonable standard of care when one’s actions may foreseeably harm others. • Patient’s best interests always come first 18
Fiduciary duties: Fiduciary duties of Health Care Providers: • Must act in good faith • Must have loyalty towards the patient • Never place their own personal interest over the patients. Taking actions that look after the best interest of patients. 19
Duty • “due” meaning “that which is owing” • “Conveys a sense of moral commitment or obligation to someone or something. • The moral commitment should result in action, it is not a matter of passive feeling or mere recognition. When someone recognizes a duty, that person theoretically commits themself to its fulfillment without considering their own self ‐ interest.” Duty: http://en.wikipedia.org/wiki/Duty 20
Recommend
More recommend
