Canada may expand new PAD law; U.S. next?

Canada passed new legislation in June legalizing physician-assisted death (PAD) for citizens 18 and older deemed mentally competent and who have a “grievous and irremediable medical condition.”

The law defines such a condition as “a serious and incurable illness, disease or disability” that is “in an advanced state of irreversible decline in capability.”

The condition causes a person “enduring physical or psychological suffering that is intolerable to them” and cannot be relieved. The person’s natural death must be “reasonably foreseeable.”

Safeguards to prevent errors and abuse include a 15-day waiting period and having two independent witnesses present when the patient signs a PAD request.

Canada’s law contrasts with statutes in four U.S. states – Oregon, Washington, Vermont and California – that permit PAD only for the terminally ill.

Additionally, Montana, recognizes the consent of a terminally ill patient as a statutory defense to a charge of homicide.

“In Canada they’re a little broader. They’re thinking about suffering as the trigger, who is in terrible pain or terribly disabled in addition to being terminally ill,” said Arthur L. Caplan Ph.D., the Drs. William F. and Virginia Connolly Mitty Professor of Bioethics and director of the Division of Medical Ethics at New York University Langone Medical Center.

Caplan puts Canada in the middle of the PAD spectrum between the United States with the most restrictions and European countries like the Netherlands and Belgium with the least.

Canada’s law requires its Ministers of Health and Justice to initiate independent reviews to determine if PAD should be permitted for mature minors, people with mental illness as their sole underlying condition and people who anticipate a loss of capacity.

The reviews must start by Dec. 18, 2016, and be completed within two years. This second phase of the law follows recommendations in a February 2016 report by the Special Joint Committee on Physician-Assisted Dying.

A 2009 Supreme Court of Canada decision annulled laws that had restricted decision making for life and death decisions about medical treatment to those 16 and older.

Instead the court allowed for young patients to have a hearing before a judge for a determination.

In the U.S., determinations regarding maturity for minors are usually reserved for cases involving sexual reproductive behavior or sexual assault.

Expect to see considerable attention on Ottawa as lawmakers grapple with the mature minor’s issue.

“It certainly would be very controversial to extend decisions about ending your life to younger people even if they were quote-unquote mature,” Caplan said. “The argument would be you can’t be really sure they know what they’re doing. There’s some chance a younger person might be more susceptible to pressure from parents, from friends from peers to end their life. They’re not as independent, if you will.”

While the same arguments could be made about PAD requests by the elderly, Caplan said those determinations are made by looking for behavior consistent with beliefs previously expressed by the person.

“What we would say in ethics is authentic, because it really reflects who they are,” he explained. “You don’t have that with a younger person because they don’t have that track record.”

Harvard Medical School Associate Professor of Psychiatry John R. Peteet, M.D., who is fellowship site director for adult psychosocial oncology at Brigham and Women’s Hospital’s Department of Psychosocial Oncology and Palliative Care, has written that physicians have a moral and ethical responsibility to provide alternatives to suicide when patients request it.

Peteet was co-author of a widely reported study published last February in JAMA Psychiatry raising concerns about allowing PAD for psychiatric reasons based on a review of such cases in the Netherlands.

The review of 66 cases between 2011 and 2014 found the ratio of women to men receiving PAD was 2.3 to 1, essentially the reverse of the suicide ratio of women to men in the Netherlands.

Most cases involved chronic, severe conditions, with histories of attempted suicides and psychiatric hospitalizations.

Most also had personality disorders and were described as socially isolated or lonely. Depressive disorders accounted for 55 percent of cases with other listed conditions including psychotic, posttraumatic stress or anxiety, somatoform, neurocognitive and eating disorders, as well as prolonged grief and autism.

Requests were refused for almost one third of the patients seeking PAD, the study found.

One quarter of the cases led to disagreements among the physicians involved in the decision-making process. While the authors found extensive consultation with other physicians was common, 11 percent of cases reviewed had no independent psychiatric input.

Forty-one percent of physicians performing a PAD procedure were psychiatrists and 27 percent of patients received the procedure from a physician new to them.

“Hypothetically, if such a law were to be adopted in the U.S., the problems seem likely to be even more magnified given that we have a much more fragmented, under-funded mental health system than the Netherlands.” Peteet said via email.

“None of the reports of cases of PAD for psychiatric cases in the Netherlands which we read referred to cost or affordability of care, but as you know in the U.S., there is hardly a patient encounter that does not in some way raise issue of cost and affordability.”

Given that Canadian health care is largely delivered through a public system, Caplan suggested that Canada might be a “safer environment” in which to extend PAD to people with psychiatric conditions than the U.S.

“I think people here (in the U.S.) would be worried that people would kill themselves because they’ve run out of money. That’s just not on the table in Canada,” Caplan said.

The American Psychological Association Board of Directors appointed a Working Group on End of Life Issues and Care last December. The group, which was scheduled to meet during the association’s annual convention Aug. 4-7 in Denver, is charged with looking at the literature surrounding end-of-life, assisted suicide and palliative care but at press time no reports had yet been released.

The association’s assisted suicide policy adopted in 2001 is still the only official guidance for its members.

The policy encourages psychologists “to identify factors leading to assisted suicide requests (including clinical depression, levels of pain and suffering, adequacy of comfort care and other internal and external variables) and to fully explore alternative interventions (including hospice/palliative care, and other end-of-life options such as voluntarily stopping eating and drinking) for clients considering assisted suicide …”

The American Psychiatric Association has not produced an official position statement on PAD, though it remains supportive of palliative care. The American Medical Association opposes PAD participation.

Caplan predicts a slow trend toward legalizing PAD in more U.S. states. “I think the big test case is California,” he said of the End of Life Option Act that took effect in June in a state with greater demographic and economic diversity than in Oregon, Washington and Vermont.

“It will never become national, because it’s a state issue,” Caplan said. “I think if you’re in certain states you can expect to be at the end of the line, particularly states which have a strong Catholic church presence.”

The Oregon Death with Dignity Act passed in 1997 requires the Oregon Health Authority to publish an annual report with statistics on participating patients and the physicians who prescribe lethal doses of medications for them.

In a study of PAD requests and outcomes for patients with psychiatric disorders in Belgium published in 2015 in BMJ Open, 23 percent of patients whose requests were accepted decided to postpone or cancel the procedure.

They included eight patients “who said that knowing they had the option to proceed with euthanasia gave them sufficient peace of mind to continue their lives,” according to the study led by Lieve Thienpont, M.D., of University Hospital Brussels.

“There’s a certain argument that says actually with respect to suicide or taking or hastening your death, having the option is somewhat of a preventive,” Caplan said.

Wider acceptance of PAD would need to be linked up with having hospice available, Caplan said. “There’s got to be few financial barriers and there has to be the services. Oregon did a good job trying to expand its services,” he said.