Guidelines 800-9: Medical assistance in dying

• Corrections and Conditional Release Act (CCRA),sections 17(1), 85-89, 102 and 121(1)
• Corrections and Conditional Release Regulations (CCRR), section 9
• Criminal Code, sections 14, 226, 227, 241 and 245
• Access to Information Act
• Privacy Act, sections 3, 6(2) and 8(2)
• CD 800 Health Services
• CD 530 Death of an Inmate: Notifications and Funeral Arrangements
• CD 566-6 Security Escorts
• CD 701 Information Sharing
• CD 710-3 Temporary Absences
• CD 712-1 Pre-Release Decision-Making

To provide operational direction for medical assistance in dying

Applies to all health care professionals in the Correctional Service of Canada (CSC)

• Responsibilities
• Participate in the Medical Assistance in Dying Process
• Procedures
  • Inmate Request for Medical Assistance in Dying
  • Consent for Eligibility Assessment
  • First Eligibility Assessment by the Institutional Physician or Nurse Practitioner (Internal Assessor)
  • Early Release
  • Second Eligibility Assessment (External Assessor)
  • Provision of Medical Assistance in Dying
  • Following Provision of Medical Assistance in Dying
• Enquiries
• Annex-A-Cross-References and Definitions

1. The Regional Director, Health Services, will ensure there is a process within their region for the provision of medical assistance in dying (MAID) that is guided by patient-centered care, compassionate and humanitarian principles.
2. These Guidelines assume that the MAID procedure will be completed external to CSC, namely, in a community hospital or health care facility. In exceptional circumstances, at the request of the inmate, a Treatment Centre or a Regional Hospital may be used, provided:
   1. an exception has been approved by the Assistant Commissioner, Health Services, and
   2. the procedure includes a health professional external to CSC.
3. The inmate requesting MAID will make a written request to Health Services.
4. The Institutional Head is responsible for:
   1. medical escorts to community hospitals or health care facilities throughout the MAID process, which may require multiple appointments
   2. providing security and intelligence-related information to the Chief, Health Services, that could have had an impact on the inmate’s decision to request MAID and/or the voluntariness of the request (e.g., pressure from other inmates, debts, etc.).
5. The Chief, Health Services, is responsible for:
   1. notifying, within 24 hours, the institutional Physician or Nurse Practitioner, the Chief, Mental Health Services, and the Institutional Head when a request for MAID has been received from an inmate
   2. meeting with the inmate who submits a request for MAID, within five calendar days (alternatively, the institutional Physician or Nurse Practitioner will meet with the inmate)
   3. making arrangements, in collaboration with the Chief, Mental Health Services, for availability of support services to the inmate throughout the process, including support services for an inmate who has been assessed and deemed not to meet the eligibility criteria
   4. ensuring that security and intelligence-related information that may impact eligibility is provided to the institutional Physician (or other designated Physician) or Nurse Practitioner (in accordance with professional colleges standards) conducting the first eligibility assessment
   5. notifying the Institutional Head regarding appointments at community hospitals and the level of urgency related to the appointments
   6. collaborating with community hospitals with respect to appointments and any information that they may require throughout the MAID process
   7. providing the inmate with the appropriate provincial form for an official MAID request.
6. The institutional Physician or Nurse Practitioner is responsible for:
   1. notifying the Regional Primary Care Physician Lead and the Regional Psychiatrist Lead of a request for a MAID eligibility assessment
   2. informing the inmate of all other treatment options available to them, including hospice/ palliative care services
   3. conducting the first eligibility assessment for MAID, which may, if necessary, include consultation with psychiatry and/or other mental health professionals, and providing a written opinion on whether the inmate meets all of the eligibility criteria set out in the federal legislation
   4. collaborating with the Regional Primary Care Physician Lead in referring the inmate to an external Physician or Nurse Practitioner assessor for the second eligibility assessment. The institutional Physician or Nurse Practitioner must be satisfied that they and the other Medical Practitioner or Nurse Practitioner providing the second eligibility assessment are independent
   5. consulting the external Physician or Nurse Practitioner providing MAID.
7. The institutional Parole Officer is responsible for considering all release options per the process outlined in CD 712-1 – Pre-Release Decision-Making.

8. For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

9. Within five calendar days of an inmate’s request for MAID, the Chief, Health Services, or institutional Physician or Nurse Practitioner will meet with the inmate. During this meeting, the Chief, Health Services, or institutional Physician or Nurse Practitioner will:
   1. determine the inmate’s reasons for requesting MAID
   2. provide the inmate a copy of the eligibility criteria and a copy of this policy
   3. offer referral to support services provided by a mental health professional, Chaplain, Elder/ Spiritual Advisor, etc. (these support services will be available to the inmate throughout the MAID process)
   4. schedule the inmate to be seen within seven calendar days, or sooner depending on the inmate’s health status, for the purpose of performing the first eligibility assessment for MAID. This assessment will be conducted by the institutional Physician or Nurse Practitioner (internal assessor) or, if necessary, by an external Physician or Nurse Practitioner.
10. Access to the community for MAID purposes will be facilitated via temporary absences per CD 710-3 – Temporary Absences.

11. If the inmate is physically able, the inmate must submit a request for MAID eligibility assessment, using the appropriate provincial form. The form must be completed and signed by the inmate and one independent witness.
12. If the inmate is physically unable to make a written request for an eligibility assessment, someone else may do so in the inmate’s presence on their behalf and under the inmate’s express direction, provided that this person is at least 18 years of age; understands the nature of the request for MAID; and does not know or believe that they are a beneficiary in the inmate’s will, or a recipient, in any other way, of a financial or other material benefit resulting from the inmate’s death. Other inmates are prohibited from assuming this role on behalf of the inmate requesting MAID eligibility assessment. The reason for the inmate’s inability to make a written request must be documented.
13. The inmate may, at any time and in any manner, withdraw their request for MAID.

14. In order to meet eligibility criteria, all of the following must be true:
    1. the inmate is at least 18 years of age and capable of making decisions with respect to their health
    2. the inmate is suffering from a grievous and irremediable medical condition, meeting all of the following criteria:
       1. the inmate has a serious and incurable illness, disease or disability
       2. the inmate is in an advanced state of irreversible decline in capability
       3. that illness, disease or disability or that state of decline causes the inmate enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that the inmate considers acceptable
    3. the inmate has made a voluntary request for MAID that, in particular, was not made as a result of external pressure
    4. the inmate gives informed consent to receive MAID; however, MAID may be provided to an eligible individual whose natural death is reasonably foreseeable and who has lost the capacity to consent before MAID is provided, on the basis of a prior written agreement the individual entered into with the practitioner.
15. If the inmate does not meet the eligibility criteria, the internal assessor will notify the inmate in person that they do not qualify for MAID and offer referral to support services (i.e., a mental health professional, spiritual support, etc.).

16. All release options will be considered per the process outlined in CD 712-1 – Pre-Release Decision-Making.

17. If the inmate has met the eligibility criteria during the first assessment, they will be referred to an external Physician or Nurse Practitioner (external assessor) for a second eligibility assessment as soon as practicable. If the result of the first assessment is that the inmate is determined not eligible for MAID, there will not be a referral for a second eligibility assessment.
18. Information respecting the inmate’s medical condition and any relevant security and intelligence information will be shared with the community hospital in conformity with CSC's Guidelines for Sharing Personal Health Information and/or CD 701 – Information Sharing.

19. If the inmate meets the eligibility criteria, set out in the federal legislation, during the first and second assessments, arrangements will be made with a community hospital or health care facility for provision of MAID.
20. For individuals whose natural death is not reasonably foreseeable, there must be a period of at least ninety (90) clear days from the date of the first assessment where the person is deemed eligible to the day that MAID is provided to them; however, this period can be shortened if the individual is about to lose the capacity to make health care decisions.
21. MAID will be provided at a community hospital or health care facility, normally by the second assessor. The provision of MAID will be in accordance with the policies and procedures of the community hospital or health care facility and in conformity with provincial requirements.
22. Efforts will be made, according to the inmate’s wishes and CSC security requirements related to public safety, to accommodate the presence of family, friends, next-of-kin or other persons identified by the inmate, subject to the policy of the community hospital or health care facility.

23. Procedures following the death of an inmate will be per CD 530 – Death of an Inmate: Notifications and Funeral Arrangements.
24. After the death of an inmate through MAID, there is no requirement for CSC to convene a board of investigation or a mortality review.
25. Within 15 days of the completion of the MAID process, the Chief, Health Services, will perform a Quality Management Review to:
    1. assess adherence to this policy
    2. identify potential areas for improvement.
26. The Chief, Health Services, will schedule a debrief and invite those with an interest in the process (e.g., Nurses, Physicians, Nurse Practitioners or Parole Officers).

Enquiries

27. Strategic Policy Division
    National Headquarters
    Email: Gen-NHQPolicy-Politi@csc-scc.gc.ca

Assistant Commissioner,
Health Services

Original signed by:
Jennifer Wheatley

Annex A
Cross-References and Definitions

CD 041 – Incident Investigations
CD 530 – Death of an Inmate: Notifications and Funeral Arrangements
CD 566-6 – Security Escorts
CD 701 – Information Sharing
CD 710-3 – Temporary Absences
CD 712-1 – Pre-Release Decision-Making
CD 800 – Health Services

Advanced state of irreversible decline in capability: when combined with the requirements that death be reasonably foreseeable and that the person be suffering intolerably, the requirement to be in an advanced state of irreversible decline ensures that medical assistance in dying would be available to those who are in an irreversible decline towards death, even if that death is not anticipated in the short term. This approach to eligibility gives individuals who are in decline toward death the autonomy to choose their preferred dying process.

Clear days: Subsection 27(1) of the Interpretation Act states that “Where there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded.” (This means that the day of the first assessment where the inmate is deemed eligible and the day that MAID is provided are not calculated towards the 90 days.)

Grievous and irremediable medical condition: a person has a grievous and irremediable medical condition only if they meet all of the following criteria:

1. they have a serious and incurable illness, disease or disability
2. they are in an advanced state of irreversible decline in capability
3. that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

Independent Medical Practitioner and Nurse Practitioners: with respect to the independence of the first medical or Nurse Practitioner from the second one, the Criminal Code provides that they cannot be connected to each other in any way that could impair their objectivity, such as by being in a business or mentoring relationship with each other. They would also need to be independent of the patient, in the sense that they could not be a beneficiary under their will, or be otherwise connected to the patient in a manner that could affect their objectivity.

Independent witness: witnesses are considered independent unless they:

1. know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death
2. are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides
3. are directly involved in providing health care services to the person making the request
4. directly provide personal care to the person making the request, or
5. are another inmate.

Informed consent: a medical term that means that a person has consented to a particular medical treatment after having been given all of the information they need to make that health care decision. Information that is necessary to provide includes their diagnosis, their prognosis, and available forms of treatment and the benefits and side effects of those treatments. It also requires that the person be mentally competent or capable, i.e., that they be able to understand the relevant information and the consequences of their choices.

Medical assistance in dying: the administering by a Medical Practitioner or Nurse Practitioner of a substance to a person, at their request, that causes their death; or the prescribing or providing by a Medical Practitioner or Nurse Practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.

Medical practitioner: a person who is entitled to practise medicine under the laws of a province.

Mentally competent or capable: a person is mentally competent or capable when they have the capacity to understand the nature and consequences of their actions and choices, including decisions related to medical care and treatments.

Nurse Practitioner: Nurse Practitioners have the authority to deliver many of the same medical services as family Physicians; they can assess, diagnose, prescribe and treat patients. They can act independently in every jurisdiction except Quebec, where they practice under the authority of a Physician.

Reasonably foreseeable death: in the context of medical assistance in dying, it means that there is a real possibility of the patient’s death within a period of time that is not too remote. In other words, the patient would need to experience a change in the state of their medical condition so that it has become fairly clear that they are on an irreversible path toward death, even if there is no clear or specific prognosis. Each person’s circumstances are unique, and life expectancy depends on the nature of the illness, and the impacts of other medical conditions or health-related factors such as age or frailty. Physicians and Nurse Practitioners have the necessary expertise to evaluate each person’s unique circumstances and can effectively judge when a person is on a trajectory toward death. While medical professionals do not need to be able to clearly predict exactly how or when a person will die, the person’s death would need to be foreseeable in the not-too-distant future.