Office of the Chief Coroner Medical assistance in dying review team oversight approach

Monitoring and oversight are key components of the federal and provincial medical assistance in dying (MAiD) legislation. Under the Coroners Act, the Office of the Chief Coroner for Ontario (OCC) has responsibility for the monitoring and oversight of MAiD deaths in Ontario. The OCC reviews all MAiD deaths to evaluate compliance with legal and regulatory obligations and can undertake further investigative steps where indicated. Practitioners are responsible for providing the information required by the OCC to undertake a complete review of each death. Further information about the MAiD process is located on the Ministry of Health and Long-Term Care website.

During the mandatory OCC case review, we explore what was considered by the practitioner and their rationale for being satisfied that all legislative requirements were met. Overall, the provision of information by practitioners to the OCC has been timely and thorough. However, some case reviews have demonstrated compliance concerns with both the Criminal Code and regulatory body policy expectations, some of which have recurred over time.

Federal regulations came into effect on November 1, 2018 that require information be provided by practitioners and include penalties for failing to provide this information. A copy of the regulations can be accessed on the Health Canada website. The OCC acts as a Health Canada designated recipient for information required to be reported to Health Canada at the time of a MAiD death, i.e., the OCC collects the required information from the provider and submits on their behalf reducing reporting administrative burden.

Informed by our experience over the initial two years, the volume of cases, and the requirements of the Federal reporting regulations, on November 1, 2018, the team implemented a more structured approach to respond to concerns that arise about potential compliance issues regarding statutory requirements, regulations, and/or College (regulatory body) policies.

With the implementation of Bill C-7, there were changes to Federal legislation that came into effect March 17, 2021. As a result, we have updated our approach in responding to concerns that arise about potential compliance issues regarding statutory requirements, regulations, and/or College (regulatory body) policies. A copy of the legislation can be accessed on the Health Canada website.  The OCC approach may be subject to further update as revised Federal reporting regulations are anticipated for release in January 2023.

Appendix A provides a list of the Criminal Code and federal monitoring regulation requirements, and the approach to oversight for the OCC MAiD review team. Our approach will also reflect whether or not there has been a repeated issue with meeting requirements by the same practitioner.

For clarity purposes, we have provided definitions:

MAiD provider: a medical or nurse practitioner who administered a lethal medication to cause death.

MAiD assessor: a medical or nurse practitioner who provided a written opinion confirming that the person met eligibility criteria (e.g., includes both the MAiD provider and secondary assessor).

MAiD prescriber: a medical or nurse practitioner who provides medical assistance in dying by prescribing or providing a substance to the person for self-administration.

Below is a snapshot of changes made to the OCC MAiD Team approach:

  1. Removed outdated legislation pertaining to reflection period of 10 clear days.
  2. Added Bill C-7 legislation pertaining to Non-Reasonably Foreseeable Death and Invoking a Waiver of Final Consent.
  3. Added Bill C-7 legislation pertaining to Self-Administration.
  4. Added language pertaining to follow-up with MAiD assessors.

We are committed to ensuring transparency and open communication. We share the OCC MAiD review team approach to oversight to provide rationale and to understand the anticipated expectations and outcome of our review process.

Appendix A

Ranking system

  • Level 1: Informal conversation. Does not apply to issues with compliance with statutory requirements. Applies to issues with compliance with best practices and/or College (regulatory body) policies, guidelines, and standards (e.g., documentation/record-keeping practices, professionalism, etc.)
  • Level 2: Educational email.
  • Level 3: Notice email.
  • Level 4: Report to applicable regulatory body.  Requires team discussion and review with Chief Coroner prior to implementing.
  • Level 5: Report to police (and report to applicable regulatory body).

These rankings are subject to change based on exceptional circumstance.

The rankings noted below apply to the first time an issue with compliance with the applicable requirement is identified for a practitioner. Our approach will reflect whether or not there has been a repeated issue with meeting requirements by the same practitioner. For instance, if there is an issue with compliance on the same issue where a previous email has been sent, that would then typically result in a notice email (Level 3) being sent, and a third occurrence would lead to a report to the practitioner’s regulatory college. Where there are unrelated compliance concerns, the first two issues would be addressed consistent with the responses set out at Appendix A and a third (unrelated) event would lead to the response being escalated to the next level.

Example 1:

  • First issue with compliance with the requirement that witness is not a beneficiary = Level 3 (notice email).
  • Second issue with compliance with the same requirement that witness is not a beneficiary = Level 4 (report to applicable regulatory body).
  • Third occurrence of an issue with the requirement that witness is not a beneficiary = Level 4 (with potential for Level 5).

Example 2:

  • First issue with compliance with the requirement that witness is not a beneficiary = Level 3 (notice email).
  • First issue with compliance with the requirement for 90 clear days = Level 3 (notice email).
  • Second issue with compliance with either of the above requirements OR first issue with compliance with ANY of the other legislative requirements = Level 4 (report to applicable regulatory body).
  • Third occurrence of an issue with any legislative requirement = Level 4 (with potential for Level 5).

MAiD: Mandatory legal requirements – Bill C-7 (eligibility & safeguards)

As MAiD assessor you have ensured the following:

Mandatory legal requirements

Criteria MAiD assessor

As MAiD assessor you have to ensure the following:

Ranking
You have confirmed that you are independent of the individual requesting MAiD (the “requester”).3
You have confirmed that you are independent of the other assessor’s purview.3
The requester is eligible for health services funded by government in Canada.2
The requester was at least 18 years of age.4
The requester was capable of making decisions with respect to their health.5
The requester had a grievous and irremediable medical condition: s. 241.2(2)
  1. the requester had a serious and incurable illness, disease or disability
  2. the requester was in an advanced state of irreversible decline in capability
  3. the requester was enduring physical or psychological suffering due to the illness, disease, disability or state of decline that was intolerable to them and that could not be relieved under conditions that they considered acceptable
4
The request was voluntary and not made as a result of external pressure.5
The requester provided informed consent after having been informed of means available to relieve their suffering, including palliative care.3
You prepared a written opinion confirming that the requester met eligibility criteria and if you were not the provider/prescriber, you shared the written opinion with the provider/prescriber.2
If the requester had difficulty communicating, you took all necessary measures to provide a reliable means by which the requester could have understood the information that was provided to them and communicated their decision.3
Safeguards
Criteria MAiD provider or prescriberRanking
As a MAiD provider or prescriber, you have formed the opinion that all of the eligibility criteria have been met.3
As provider/prescriber, you have ensured that the request for MAiD was made in writing.3
As provider/prescriber, you have ensured that the written request was signed and dated by the requester or their proxy.3
As provider/prescriber, you have ensured that the written request was dated by the requester or their proxy.2
As provider/prescriber, you have confirmed that when signed by a proxy, that person was independent by:
  1. confirming the proxy signor is not a beneficiary under the will of the requester
  2. confirming the proxy signor is not a recipient of a financial or other material benefit resulting from the death
3
As provider/prescriber, you have ensured that the written request was made after the requester was informed by a practitioner that they have a grievous and irremediable condition.2
As provider/prescriber, you have confirmed that the written request was signed and dated by the requester in the presence of an independent witness.3
As provider/prescriber, you have confirmed that the independent witness signed and dated the written request in the presence of, and on the same date as, the requester.3
As provider/prescriber, you have confirmed that the witness is independent by:
  1. confirming the witness is not a beneficiary under the will of the requester
  2. confirming the witness is not a recipient of a financial or other material benefit resulting from the death
  3. confirming the witness does not own or operate a health care facility where the requester resides or gets treatment
  4. confirming that the independent witness was not directly providing unpaid health care services or personal care to the person requesting MAiD (e.g., family/friend/extended family)
  5. confirming that an independent witness who is paid to provide health care services or personal care is not the MAiD provider/prescriber or a MAiD assessor
3
As provider/prescriber, you have ensured that the requester is aware they can withdraw their request at any time and in any manner.3
As provider/prescriber, you have ensured that there was a second independent written opinion from an assessor confirming the eligibility criteria were met.4
As provider/prescriber, you have confirmed the second opinion was independent by:
  1. ensuring there is no connection between the provider/prescriber and the assessor that could compromise independence (such as a mentor/mentee relationship)
  2. ensuring the assessor is independent of the requester (for example, not a beneficiary or any other relationship that would affect their objectivity)
  3. ensuring the provider/prescriber does not know or believe they are connected to the requester or the assessor in any way that would affect their objectivity
3
As provider/prescriber, you have ensured that the requester was given an opportunity to withdraw their request and gave their express consent to receive MAiD immediately before the procedure, with exception if a Waiver of Final Consent was invoked.3
As a MAiD provider/prescriber, if the requester had difficulty communicating, you took all necessary measures to provide a reliable means by which the requester could have understood the information that was provided to them and communicated their decision.3
As provider/prescriber, you have informed the pharmacist that the medication being sought is for the purposes of providing MAiD.2
Reasonably foreseeable natural deaths (RFND): Waiver of final consent
Criteria MAiD provider or prescriberRanking
As the provider, if invoking a waiver of final consent, you have ensured that:
  1. before the person lost capacity to consent, they met all of the eligibility criteria for MAiD
4
  1. the requester entered into a written arrangement that the provider would administer a substance to cause their death on a specified day
  2. in the written agreement, the requestor consented to the administration of a substance to cause their death on or before the day specified in the arrangement if they lose capacity to consent to receive MAiD prior to the day
  3. the person lost capacity to consent to receiving MAiD
  4. the requester did not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration
3
Non-reasonably foreseeable deaths
Criteria MAiD provider or prescriberRanking
As provider/prescriber, you have ensured that consultation occurred with a practitioner who has expertise in the condition that was causing the person’s suffering if neither the provider/prescriber or the assessor has expertise (and share the results with the other practitioner).3
As a MAiD provider/prescriber, you and the independent assessor have discussed with the requester the reasonable and available means to relieve their suffering, and both you and the other assessor agreed that the requester had given serious consideration to those means.3
As the provider/prescriber, you have ensured that there were at least 90 clear days between the day on which the first assessment began and the day on which medical assistance in dying occurred.3
As the provider/prescriber you ensured that if the reflection period was shortened this was due to an imminent loss of capacity to consent and both assessors were in agreement.3
Self-administration: Advanced consent
Criteria MAiD provider or prescriberRanking
As the MAiD provider, in the case that a person lost the capacity to consent to receive MAiD after they self-administered a substance and did not die within a specified period, the MAiD provider administered a substance to cause death of that person according to the terms of a written arrangement with the person.3