In June 2016, the federal government passed a bill permitting doctors and nurse practitioners to legally end the lives of terminally ill patients who fulfill certain criteria. Since then, hundreds of Canadians have been able to end their lives with assistance from physicians and nurses. Recently, Ontario’s Privacy Commissioner has called for increased transparency with respect to assisted dying and has urged the provincial government to make information available about publicly funded facilities that provide medically assisted deaths.
Criteria That Must Be Met to Access Medical Assistance in Dying
In order to access medical assistance in dying, an individual must:
- Be eligible for publicly funded health services in Canada;
- Be at least 18 years old and capable of making decisions about their health;
- Have a “grievous and irremediable medical condition” (this includes an illness, disease, or disability);
- Make a voluntary request for medical assistance in dying that has not been influenced by external pressure; and
- Provide informed consent to receive medical assistance in dying after having been informed of the options available to relieve their suffering (including palliative care).
A person is considered to have a “grievous and irremediable medical condition” if:
- They have a serious and incurable illness, disease, or disability;
- They are in an advanced state of irreversible decline in capability;
- Their illness, disease or disability, or their state of irreversible decline causes them intolerable psychological or physical suffering that cannot be relieved under conditions they deem acceptable; and
- Their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, but without a prognosis necessarily having been made about the specific length of time they may have to live.
Statistics on Medically Assisted Dying
Recent data from the Ontario Coroner’s office reveals that, as of June 30, 2017, 548 Ontarians have died with medical assistance. 259 of these patients were women, 289 were men. In all but one of those instances, the medication used was administered by a physician. In one instance, the patient administered the medication themselves. The average age of these patients was 73 years. No information is available as to where these services took place.
Current Laws on Assisted Dying
Currently, information about medically assisted deaths does not have to be available outside of the institution where such procedures take place. The province’s freedom of information law allows hospitals, hospices, and long-term-care homes to refuse to disclose any information on whether or not they grant requests for medical assistance in dying.
The Privacy Commissioner’s Concerns
In a report issued in June, Ontario’s Privacy Commissioner indicated that excluding information that could identify facilities that provide such services is inconsistent with Ontario’s access and privacy laws, and could hinder the transparency and accountability of the province’s health system. The Privacy Commissioner has strongly urged the province’s health institutions to disclose whether or not they provide these services, since, in his opinion, “Ontarians should have the right to know what facilities are providing publicly funded services, including those relating to medical assistance in dying”. The Privacy Commissioner had previously recommended amendments that would keep the names of physicians providing assisted dying services anonymous, but the names of the facilities where these services took place, public.
In correspondence to the Toronto Star, a health ministry spokesperson has stated that the government views the protection of information about facilities that provide such services as “a logical and justifiable extension of protecting clinicians”, but that there is nothing preventing organizations from proactively releasing information about their assisted dying policies. The spokesperson further noted that the Ministry is not contemplating any changes at the moment.
We will continue to follow developments in this matter, and will blog about updates as they become available.
At Wise Health Law, we focus on health and administrative law. We assist health professionals, health organizations, and national and provincial health professional associations to find solutions to their legal and regulatory issues. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.