A RESIDENT’S RIGHT TO CHOOSE:

Implementing the first MAID death in Ontario

Long Term Care

Presented by: Jill Knowlton, Managing Director

Sarah Hind, Director of Clinical Services
Lisa Corrente, Partner, Torkin Manes LLP
Mrs. Wendy Taylor, Family Member

April 5 2017
Overview

• John’s Story
• Receiving the Request
• Examining Values and the Paradigm Shift
• Making a Referral
• Legislation, Policy + Legal Requirements
• Conscientious Objector Process
• Focus on the Resident + Supporting the Family
• Support to Co residents, Staff and Others
• Current Status of Legislation + Legal Challenges
John Taylor’s Story

Passion for
Rock
Climbing
John Taylor’s Story

A Daughter’s
Wedding
John Taylor’s Story

Solving a
Problem
John Taylor’s Story

Together from
beginning to
end
The Request

• March 28, 2016: First request for a Meeting

Exploratory
• April, 2016: Meeting with Medical Director
Outlining the Home’s position
Discussion of The Carter v. Canada Decision 2015
SCC suspended declaration of constitutional invalidity
until June 6, 2016
• May, 2016: Third Meeting –John’s Position is Clear
LTC is “ground zero” for a death at home
The Request
June 6, 2016: Fourth Meeting
Disappointment – assisted dying is legal…BUT
Begin discussion around applying to Superior Court
for an order allowing PAD on meeting Carter criteria
Lawyer now involved ---Court order is a practical
necessity
June 17, 2016: Fifth Meeting
Federal Bill C-14 receives Royal Assent
Celebration
July 1, 2016 to August 3, 2016: Multiple Meetings
Plan put in motion
Assisted death August 3
Why Delay?

Delays from request to implementation are problematic.

• Gaps in legislation and absence of regulations

• Home not ready: policy, forms, education, supports
• Vacations: Hospital Clinicians, Home Staff and Family
• Requirement for venous access: appointment at hospital for
PICC line as IV access was not achievable
• Medication orders and pharmacy access to drugs
Medication Schedule
Anxiolytic
• Midazolam 1 mg/mL concentration
• Provide 4 - 5 mL bottles
• Require 2 kits of 10 mg each (2nd kit to be returned unused)
• Need 2 - 10 mL syringes

Local Anaesthetic
• Lidocaine without epinephrine 20 mg/mL concentration
• 2 mL or 40 mg in a syringe
• Provide 1
Medication Schedule
Coma Inducing Agent
• Propofol 10 mg/mL concentration
• Provide 4 - 50 mL bottles
• Require 2 kits of 1000 mg each (2nd kit to be returned unused)
• Need 2 - 60 mL syringes

Neuromuscular Blocker
• Rocuronium bromide 10 mg/mL concentration
• Provide 4 - 10 mL bottles
• Require 2 kits of 200 mg each (2nd kit to be returned unused)
• Need 2 - 10 mL syringes
Also need NaCl 0.9% saline solution (1 litre) with IV tubing and extra 10
mL syringes and antiseptic swabs.
Role of Senior Leader

• MAID Lead – central point of contact: info in and out

• Liaise with Medical Director, Attending Physicians,
management team, corporate office, staff, resident, family,
MOH representatives, Chief Coroner’s office, legal counsel
• Guide and direct
• Ensuring policy in place and is known
• Ensuring external practitioners follow the Home’s policies
• Ensuring a process to conscientiously object
• Ensuring support to residents, families, staff and others
Paradigm Shift

Organizational + Individual Values and Beliefs

Do No Harm Assisted Suicide

Resident Rights Resident Rights

MAID Values and Beliefs

 Examine

STAFF – 2 sessions/1 week apart around the clock

• Small groups (no more than 8 to 10)
• Maximum 30 minutes
• By home area team or department – support one another, sit together
• Make it safe – create a “No Risk Table”
• Start with required information such as the legislation; resident rights;
CNO Guidelines; RNAO/RPNAO; Home’s policy and other resources
• Review the Home’s values
• Leave with a question: what are your personal values and beliefs?
• Provide mechanism for questions or further discussion and consider
access to all shifts
Examine
Staff: part 2 - Reflection
• One week later reconvene in small groups
• Sit together
• Use open ended questions
• Seek out responses to, “I feel, I sense, I value/believe”
• Be prepared to start the conversation
• Revisit key information – right to be a conscientious objector +
not necessary to state why/free from harassment
• Focus on resident’s right to privacy
• Make it safe + provide supports
Conscientious Objector

• Explain what this means

• Distribute forms and have them readily available
• Create a process that is confidential for return of forms
• Create a tracking sheet
• Organize the schedule for the day well in advance
• Consider allowing personal days, vacation days
• Consider that staff may change their minds
• Consider the safety of other residents – may require you have
extra staff on that day
Emotional Pitfalls
• Talking the resident out of it
• Talking to family members and visitors and attempting to
influence them to change the resident’s mind
• Harassing co workers who conscientiously object
• Holding Prayer Circles onsite and through social media
• Calling in sick
• Not respecting the resident’s privacy
• Attempting to influence co residents
• Attempting to influence co workers
Residents and Families

We are a Home
Consider:
• Education for residents and families
• Opportunity to discuss personal values and beliefs
• Opportunity to “conscientiously object”
• Informing them of the day’s routine; any staff changes
• Providing support and grief counselling
• Opportunity to be part of Honour Guard
Policy
Early days: Interim
Absence of regulations and gaps in legislation
Development – Relied upon:
• Interim guidelines published by CPSO, CNO, OCP
• CMA Principles-based Recommendations
• Discussion Papers by Joint Centre for Bioethics, U of T
• Provincial-Territorial Expert Advisory Group on PAD
• Report of the Special Joint Committee on PAD
• Palliative and End-of-Life Care Provincial Roundtable
Report
Policy

• Consultation with the Office of the Chief Coroner with special

mention of Dr. Dirk Huyer, Chief Coroner and the Ministry of
Health and Long Term Care
• Reviewed by our lawyer with input received
• Included required documentation forms supplied by the
Ministry of Health: “Clinician Aides”
• Consultation with feedback requested from Medical Director,
Consultant Pharmacist and members of the Interprofessional
Team
• Circulated to staff as “Interim”
External Practitioners
Ensure:
• Clear understanding of the Home’s policy and
requirements for documentation
• Informed of LTCHA and associated regulations that must
be followed
• Informed of primary contact (ie. MAID Lead)
• Provision of medication orders to pharmacist early
• Provision of list of supplies and equipment required
from the Home
• Communication with the Resident, Family (with consent)
and Home Staff
LTCHA + Regulations
Consider:
• Role of attending physician and external consultants
(O Reg. s. 83)
• Obtaining MAID drugs from the Home’s pharmacy
(O Reg. s. 122)
• Documentation requirements on the Resident’s Health Record
(O Reg. s. 231)
• Certification of Forms (LTCHA 2007 s. 80)
• Safe storage and destruction of MAID drugs (O Reg. s. 129,
136)
• Institutional Patient Death Record reporting (Coroners Act)
• Critical Incident reporting (O Reg. s. 7)
The Real Event
1. The request is made known to the Home’s staff
2. The Medical Director with the Managing Director meet
with the resident and confirm request
• The resident’s concerns about terminal condition are
explored
• Alternate treatment options are shared such as terminal
sedation and dialing down the respirator

This meeting is documented in the resident’s chart

Awaiting passage of Bill C-14 by the Senate

The Real Event

3. Home considers its ability to implement MAID death in the

absence of regulations and gaps in legislation. Resident
rejects death in hospital.
4. Home consults with lawyer and advised that it best to
proceed and focus on the Resident’s Right to die at Home.
5. Resident consults his ethicist and physician contacts at the
hospital (made his own referral).
The Real Event
6. Two physicians from the hospital who are considered
independent of each other schedule an appointment to
meet with resident in the Home. Arrive with hospital policy,
forms in hand. Chart entry is not made on the health record
in the Home.
Resident eligibility for MAID is confirmed and informed
consent obtained, primary medical practitioner confirms
eligibility and reflection period followed by secondary
medical practitioner
Still NO Notes on the Health Record
The Real Event

7. MAID Lead meets with resident. Informs of requirements of

the Home. Director of Clinical Services contacts lead physician
and explains documentation requirements and requests that
the Home’s forms are completed and faxed to the Home.
8. Clinician forms A, B and C are now executed.
9. Notes being added to the Health Record.
10. Attending physician is added as a cc to all communications.
11. Drugs are ordered from the Home’s contracted pharmacy.
12. Drugs are stored in separately, locked location – 2 kits
Reporting to the MOHLTC

• Lawyer communicates with the MOHLTC on behalf of the

Home informing them of the MAID request and eligibility.

• MOHLTC advises that the Home ensure the MAID request is

in the plan of care; advises that the Home’s concerns
regarding certain regulations will be overlooked with the
focus on the Resident’s Right to an assisted death at Home.
Notifying the Coroner

Lawyer communicates with Chief Coroner

• New Interim process in place until regulatory changes are
made – due Jan 1, 2017.
• Only 3 coroners handling death by MAID – Dr. Huyer as the
chief and 2 of his deputies – this has CHANGED
• Do not complete IPDR - emphasized
• The MD who administers MAID will notify the Coroner
• Home must document in the resident health record that the
MD made the call and the report to the office of the Chief
Coroner
The Real Event

• Home prepares all documents relating to the request for

MAID:
• Chart notes
• Consults
• Opinions
• This is all faxed to the office of the Chief Coroner.
• Note: the request for MAID, the assessment for eligibility and
2 witness statements have been confirmed by the Chief
Coroner as required on the Home’s chart.
The Real Event

• Coroner will call the family and ask if funeral home

arrangements are made to have the body transferred to a
regional pathology centre. If no funeral arrangements, then
the Coroner’s office will make arrangements at their expense
to transport the body to the regional pathology centre.
• Arm band identifying the resident must be on the body. Have
one ready to put on the body.
• Coroner will examine the body at the pathology unit and
extract a blood sample – NOW: at the discretion of the
Coroner
The Real Event

• Won’t do anything more intrusive unless needed

• Will have the body for about 24 hours and notify the family
when it is ready to be moved to the funeral home
• Death Certificate will be completed by the Coroner at the
Regional Pathology Centre and will state the cause of death
as: SUICIDE. Second level cause will be the disease.
• The Home is to report the cause of death as Suicide to Service
Ontario.
• It is not reported as a Critical Incident.
Best Practices

• Walk through day’s events with team two to three days in advance
and with family one day in advance
• Prepare for the final question
• Add additional PSW and registered staff on the Home Area
• Provide more frequent breaks for staff involved if time out is
required
• Assign a senior staff member to the family and visitors ensuring
they are supported
• Hospitality – stay over suite available, refreshments and meals,
dedicated room for visiting if large numbers expected
• Flowers for the family
 Best Practices
• Honour the resident’s last wishes – Scotch Party! Persons present at
time of death and request passage to be read at Honour Guard
• Communicate daily with your care team members, resident and
family
• Provide a point of contact for staff for more information
• Create a checklist for equipment, supplies and required
documentation
• Confirm all documentation is complete prior to clinicians leaving
the Home
• Provide a structured debrief for staff and ongoing
• Invite residents and visitors to be part of the Honour Guard
Lessons Learned

• Provide education to residents and families so they are

generally informed about MAID
• Provide supports for residents who may hold incompatible
values and beliefs
• Plan to have activities off the Home Area for residents who
wish to be out of the area
• Provide follow up support and grief counselling to
co residents
• Support residents to memorialize the deceased person
Challenge

“Be prepared for MAID and what else the future

holds.”

For John, he showed his courage and strength by

ensuring MAID was available in LTC. His disease
controlled him but he would not allow it to
control his final decision – his death.
He wanted this to be his LEGACY.
 MEDICAL ASSISTANCE IN DYING:
The Past, the Present and the Future

Together We Care – April 5, 2017

Presented by: Lisa Corrente

TORKIN MANES LLP

Overview

• The Past : Lessons Learned

• The Present: Recent Statistics and Ongoing Legal

Challenges/Reviews

• The Future: Bill 84

The Past: Lessons Learned

Timelines

• Typical timeline – on average, 2 weeks from signing the patient’s

written request, including:
 assessments for eligibility by 2 independent practitioners

 10-day reflection period

• In my experience, timelines have been longer for long-term

care/retirement homes
 transfers to hospital (e.g. PICC line)

 conscientious objections / availability

 resident’s wishes
The Past: Lessons Learned

Refection Period

• Must be 10 clear days between resident’s written request and

provision of medication, unless:
 resident’s loss of capacity or death is imminent

• There have been cases in which medical practitioners have

improperly shortened reflection period in other circumstances
 e.g. patient was in too much pain, patient wanted treatment
earlier

• Home’s MAiD lead has to stay informed and oversee process

to ensure compliance
The Past: Lessons Learned

Witnesses

• Requirement for 2 independent witnesses

• Witnesses cannot:
 directly provide health care services or personal care to the resident

 be the owner or operator of any health care facility

 know or believe they are a beneficiary under a will (excludes most family members)

• Difficult to identify independent witnesses in LTC/retirement settings?

 Friends (willingness, availability, etc.)

 Health care provider in the home, if they do not own the home and are not directly involved in
resident’s health care or personal care

• Home’s policy

• Staff feeling pressured by resident requests

The Past: Lessons Learned

Conscientious Objections

• Not uncommon for medical practitioner (e.g. medical director or

attending physician) or nurse practitioner to conscientiously object
 moral objection

 lack knowledge or experience

 uncertainty regarding “natural death has become reasonably

foreseeable”

• Use of Clinician Referral Service or resident’s specialist (outside of

home)

• Need to familiarize outside practitioners of home’s obligations and

policies
The Past: Lessons Learned

Record-Keeping

• Coroner’s Office has expressed concern about variation in record-

keeping
 reduced amount of documentation

 insufficient detail

• Medical and nurse practitioners have not documented effective

referrals

• Use of Ministry’s Clinician Aids has been helpful – keep in resident’s file

• Document process and interactions in progress notes and plan of care

• Outside practitioners should be documenting in resident’s records

The Past: Lessons Learned

Drug Protocol

• All health care providers involved in MAiD process must

coordinate and communicate with one another
 appropriate drug protocol (CPSO website)

 early notification of the pharmacy service provider

• No self-administration within the home

 The Present: Most Recent Statistics

• Sex:
– Female: 151
– Male: 154

• Age:
– Average Age: 74
– Youngest: 35
– Oldest: 101

Office of the Chief Coroner/Ontario Forensic Pathology Service

MAiD Data
 The Present: Most Recent Statistics
County MAiD Cases County MAiD Cases

Brant County <5 Muskoka District Municipality <5

Niagara Regional Municipality 9
Bruce County <5
Nipissing District <5
Cochrane District <5
Northumberland County <5
Dufferin County <5
Ottawa Division 35
Durham Regional Municipality 5
Parry Sound District <5
Elgin County <5
Peel Regional Municipality 17
Essex County <5
Peterborough County 10
Frontenac County 12
Prescott & Russell United Counties <5
Grey County <5 Rainy River District <5
Haldimand-Norfolk Regional Municipality <5 Simcoe County 13
Halton Regional Municipality 11 Stormont, Dundas & Glengarry United Counties <5
Hamilton Division 17 Greater Sudbury Division <5

Hastings County <5 Timiskaming District <5

Lambton County <5 Toronto Division 81

Lanark County <5 Thunder Bay District <5

Waterloo Regional Municipality 6
Leeds & Grenville United Counties 8
Wellington County <5
Kawartha Lakes Division <5
York Regional Municipality 15
Kenora District <5

Middlesex County 13
The Present: Legal Challenges/Reviews

• Lamb v. Canada – constitutional challenge to federal legislation

filed by the BCCLA
• Faith groups representing over 4,700 Christian doctors across
Canada have launched a judicial review application in the Ontario
Divisional Court arguing that the CPSO’s MAiD policy, requiring
effective referrals to be made by physicians who have a
conscientious objection, is a Charter violation.
• Council of Canadian Academies is undertaking a review of
circumstances outside of the current scope of MAiD:
 requests by mature minors

 advance requests

 requests where mental illness is the sole underlying medical condition

• Reports expected in 2018
The Future: Bill 84

• Medical Assistance in Dying Statute Law Amendment Act, 2017

• Proposed provincial legislation which provides some clarity regarding

decriminalization of medically assisted death

• Introduced on December 7, 2016

 Passed 2nd Reading – March 9, 2017

 Standing Committee on Finance & Economic Affairs held public meetings on March
23 and 30, 2017

• If passed, will amend 6 Ontario statutes

 No amendments proposed to the LTCHA or RHA

The Future: Bill 84

• Excellent Care for All Act

 The fact that a person received MAiD cannot be invoked to deny a benefit or
other sum provided under contract or statute

• e.g. life insurance benefits, WSIB survivor benefits, pension benefits

 No action or other proceeding for damages can be commenced against a

physician or nurse practitioner or any other person assisting them for acts or
omissions done in good faith relating to MAiD

• except an action or proceedings based in alleged negligence

• no immunity from civil action against health facilities

The Future: Bill 84

• Workplace Safety & Insurance Act

 Amended to state that the cause of death of a person who receives MAiD will
be the underlying illness or injury

• FIPPA & MFIPPA

 Acts do not apply to identifying information relating to MAiD

 Amendments would protect against access to information requests identifying

clinicians and “facilities” providing MAiD

• Term “facility” not defined in Bill or existing legislation

• MFIPPA covers municipally-run LTC homes

• PHIPA continues to apply to homes

The Future: Bill 84

• Coroners Act
 Where a person dies from MAiD, physician or NP who administered
treatment must notify the coroner
• Must provide any information about the facts and circumstances relating to
the death that Coroner considers necessary

• Any other person with knowledge of the death must provide such
information on the request of the coroner

 Coroner will have discretion as to whether an investigation will ensue

into the circumstances of death
• Based on the information provided

 Role of the coroner in MAiD to be reviewed by Minister of MCSCS

within 2 years
The Future: Bill 84

• Vital Statistics Act

 Amendments set requirements respecting coroner’s documentation
of MAiD deaths

 Clarifies that coroner does not need to sign the medical certificate of
death for MAiD deaths, unless the coroner investigates
Ontario’s Care Coordination Service

• Province is proposing to establish a Care Coordination Service

 to assist patients and caregivers in accessing additional information
and services for MAiD and other end-of-life options

• Service would supplement the Clinician Referral Service

• MOH to share further information about CCS in early 2017

Outstanding Issues

• Amendments to the LTCHA and RHA in order to “fill-in the gaps”

• Conscientious objections to providing MAiD by faith-based homes

• Nurse practitioners prescribing narcotics

• Data and information gathering

Lisa Corrente
Partner, Employment & Labour Group/Health Law Group

Phone 416 643 8800

Email lcorrente@torkinmanes.com

Torkin Manes LLP

151 Yonge Street, Suite 1500
Toronto, ON M5C 2W7
www.torkinmanes.com