Medical regulators who investigate doctors involved in assisted-dying cases should release their decisions – without any names – so Canadians on both sides of the ethical divide can see what kinds of patients have received the procedure, doctors and legal experts say.
The Coroners Service of British Columbia referred the deaths of 44 patients who received medical assistance in dying (MAID) to the College of Physicians and Surgeons of British Columbia between 2016 and 2018, but none of those cases were made public.
That is because none of the probes led to a formal disciplinary hearing against a doctor, the only circumstance in which provincial medical regulators are allowed by law to acknowledge investigating a physician.
“I think there needs to be more public awareness of the important, groundbreaking [college] decisions,” said Stefanie Green, the president of the Canadian Association of MAID Assessors and Providers. “I think that these are precedents, and I think they’re important precedents, and I think they need to be made more public.”
Colleges are not courts: Their decisions do not set legal precedents.
But they do provide guidance about what counts as acceptable medical practice – guidance that is especially important in a field as new and controversial as assisted dying. Regulatory colleges have the power to revoke a doctor’s licence. Releasing redacted versions of the decisions could also help patients to understand the criteria for an assisted death.
On Saturday, The Globe and Mail told the story of Mary Wilson, a 74-year-old Victoria woman who received an assisted death when her only medical condition was Alzheimer’s disease, a condition many thought would not meet the terms of Canada’s MAID legislation.
But the B.C. college, which reviewed Ms. Wilson’s case at the behest of the province’s chief coroner, concluded the three doctors who helped Ms. Wilson to die on Oct. 29, 2017, had practised in keeping with “current legislation and relevant college standards.”
Most of the nine-page, Dec. 6, 2018, letter dismissing the case explored whether Ms. Wilson satisfied the federal law’s eligibility criteria, including whether she was in an “advanced state of irreversible decline in capability,” and whether her natural death had become “reasonably foreseeable.”
The college concluded she met the eligibility tests.
The decision came to light because the advocacy group Dying with Dignity Canada, Ms. Wilson’s family and Konia Trouton, the doctor who presided over Ms. Wilson’s death, agreed to share it with The Globe.
Ms. Wilson’s case is not the first in which the B.C. college has weighed in on a contentious aspect of the federal assisted-dying law, which was passed in June, 2016, in response to a Supreme Court of Canada ruling.
Last year, the regulator cleared Vancouver physician Ellen Wiebe, one of the country’s most outspoken assisted-dying providers, of any wrongdoing for granting MAID to a 56-year-old woman with multiple sclerosis who did not meet the “reasonably foreseeable” test until she starved herself to the brink of death. (Last month, a Quebec judge struck down the reasonably foreseeable standard as unconstitutional, but suspended her ruling for six months to allow legislators to deal with its fallout.)
The B.C. college’s position would have remained secret had Dr. Wiebe not shared the decision letters with The Globe and others.
Heidi Oetter, the registrar of the B.C. college, stressed that the regulator’s decisions are not precedents. She said it is the job of law enforcement and the courts to interpret Criminal Code provisions on MAID – even though that is what the college was asked to do in some of the referrals it received before Oct. 31, 2018.
After that date, oversight of B.C.'s MAID program moved from the Coroners Service to the Ministry of Health. The change coincided with the adoption of new federal regulations on tracking assisted deaths.
“We had a real pause at that point,” Dr. Oetter said. “I think it is safe to say that the college weighing in on Criminal Code interpretations is absolutely not our responsibility." She said she expects the Ministry of Health will refer concerning cases to law enforcement in the future.
But Jocelyn Downie, a professor of law and medicine at Dalhousie University, said it would still be helpful if provincial regulators released MAID-related decisions, as long as they do not identify the doctors and patients.
“If they’re public,” she said, “then they can help with the public-education piece of it. People can know what is going on with the implementation of the law."
Dr. Green and Dr. Downie support assisted dying, but even people who oppose it need to know what’s happening, said Amy Hasbrouck, the executive director of Toujours Vivant-Not Dead Yet, a project of the Council of Canadians with Disabilities.
“I believe that this information does need to be made available,” Ms. Hasbrouck said, “because the federal government’s monitoring is inadequate to the job.”
Ms. Hasbrouck said the national system for tracking MAID cases that began on Nov. 1, 2018 – which is scheduled to release its first report next year – fails to collect information about patients’ living conditions and whether they had adequate personal support before choosing MAID.
Other provincial medical regulators seem not to have grappled with as many MAID cases as those in B.C., although their confidentiality policies make it hard to say for certain.
Spokespeople for the colleges in every province but Quebec told The Globe no doctors have faced official discipline over MAID cases. (In Quebec, which passed its own assisted-dying law shortly before the Supreme Court decision in 2015, an end-of-life commission reviews and reports on MAID cases.)
Of the 44 MAID-related cases that Jatinder Baidwan, B.C.'s chief medical officer and coroner, referred to the college that oversees doctors, two were also referred to the college that oversees registered nurses, and one to the body that oversees pharmacists, said Andy Watson, a spokesman for the Coroner’s Service.
Most of the referrals dealt with questions of eligibility, paperwork or compliance with safeguards, such as the independence of witnesses to MAID applications.
“Ultimately,” Dr. Baidwan said by e-mail, “when we see an opportunity for improvement or a potential public benefit through death investigations, we make that recommendation to a partner agency.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.