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On January 15, 2016, the Supreme Court suspended the operation of its declaration in Carter v. Canada permitting physician-assisted death until June 6, 2016. This is to allow the federal government additional time to decide upon its response. Until then, physician-assisted death remains generally prohibited by the Criminal Code. However, as part of its ruling, the Supreme Court decided that if a person (other than a resident of Quebec) wants physician-assisted death, that person may apply to Court for an order allowing it. Such an order would create an exemption from the application of the Criminal Code provision against assisted suicide. Furthermore, the Supreme Court ruled that residents of Quebec seeking medical aid in dying (as it is called in Quebec) may do so, unaffected by the extension of the suspension of the law on physician-assisted death in Carter. They do not have to seek a Court order because Quebec has already adopted legislation on when and how medical aid in dying can be provided. The legislation is called an Act respecting end-of-life care. It came into effect on December 10, 2015.
Once the federal government’s response is known, provincial/territorial governments and health regulatory bodies will have to decide upon their own courses of action. That work is already underway. Your nursing licensing body may have already provided its members with practice direction on physician-assisted death.
What does the introduction of physician-assisted death mean for Canadian nurses right now?
At present, nothing about nursing practice has changed. Nurses working with patients who are making decisions about end-of-life care can continue to care for these patients as they have done up to this point. However, care should be taken in discussing physician-assisted death with patients. This is because the Carter case did not address s. 241(a) of the Criminal Code, which makes counselling to commit suicide a criminal offence.
For the purposes of the Criminal Code, “counsel” includes procure, solicit or incite. This is important because health care professionals often use the word “counsel” within a therapeutic relationship to mean communication with elements of information-sharing, active listening, patient education, and provision of appropriate psychological or emotional support (also, provincial health insurers may have a billing code for when a physician counsels a patient). Health care professionals should not stop these activities but be mindful not to encourage or incite a patient to physician-assisted death. In the current circumstances, nurses may be best able to demonstrate they have acted responsibly by refraining from raising the issue of physician-assisted death with patients but responding to inquiries by directing patients to their doctor or to health institution personnel in a position to respond to questions about services available at the institution. If the person has a health record, the person’s inquiry and the nurse’s response may be recorded in it. Referring the person’s inquiry does not prevent a nurse from addressing any underlying patient care needs.
The Supreme Court acknowledged that the Charter rights of patients (physician-assisted death) and doctors (freedom of religion) will have to be balanced. The Court stated that nothing in its decision compels physicians to provide assistance in dying. This decision focussed on physicians as primary care providers. It did not consider the role of other members of the health care team. The Canadian Nurses Association Code of Ethics contains information on ethical considerations in addressing expectations that are in conflict with one’s conscience.
Nursing regulatory bodies and nursing interest groups are assessing what formal direction, if any, they will offer their member nurses as a result of the Carter decision. Nurses may become involved in such professional initiatives, to help prepare the nursing profession for their role in physician-assisted death.
Nurses’ time-honoured professional practice with those who are dying will continue. Given the nature of this legal change, nurses will have to ensure that they are knowledgeable about any corresponding changes to their own practice, which may be established by legislation, professional standards, or both.
For Your Information
The CNPS made written submissions to the Special Joint Committee on Physician-Assisted Dying in order to bring to the attention of parliamentarians certain legal implications of the Carter decision for nurses.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.
Published February 17, 2016.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.