Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying: SOR/2019-96

Canada Gazette, Part II, Volume 153, Number 9

Registration

SOR/2019-96 April 10, 2019

CRIMINAL CODE

Whereas the Minister of Health considers it necessary that the annexed Regulations be made;

Therefore, the Minister of Health, pursuant to subsection 241.31(3) footnote a of the Criminal Code footnote b, makes the annexed Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying.

Ottawa, April 5, 2019

Ginette C. Petitpas Taylor
Minister of Health

Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying

Amendment

1 Subsection 2(2) of the Regulations for the Monitoring of Medical Assistance in Dying footnote 1 is amended by adding the following after paragraph (a):

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Regulations for the Monitoring of Medical Assistance in Dying (the Regulations) set out federal reporting requirements for physicians and nurse practitioners who receive a written request for medical assistance in dying and pharmacists who dispense a substance for the purpose of medical assistance in dying. In some provinces and territories, health care professionals file the information required under the Regulations directly with the federal Minister of Health. For other provinces and territories, the Regulations specify that health care professionals must file with a designated provincial or territorial recipient, which is responsible for forwarding the information on to the federal government.

At the time of the final publication of the Regulations, no provincial body was identified as a provincial designated recipient in Quebec. This created the potential for a significant reporting burden on physicians involved in providing medical assistance in dying in the province, as most were already required to report similar information to Quebec’s Commission sur les soins de fin de vie.

Shortly following the coming into force of the Regulations, Health Canada and the Province of Quebec agreed to an interim arrangement whereby Quebec’s Deputy Minister of Health and Social Services would act in the capacity of a designated recipient. An amendment to the Regulations is required to formalize this arrangement.

Failure to amend the Regulations would perpetuate ambiguity for Quebec health care professionals seeking to fulfill their reporting requirements. This could in turn expose them to legal risk, as well as potentially compromise the quality and comparability of data collected for monitoring and reporting on medical assistance in dying across Canada.

Background

On June 17, 2016, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) came into force. It created exemptions to certain criminal offences in order to enable physicians and nurse practitioners to provide medical assistance in dying to eligible individuals, and to enable pharmacists to dispense a substance for this purpose.

The law also required the federal Minister of Health to make regulations he or she considered necessary respecting the provision, collection, use and disposal of information for the purpose of monitoring medical assistance in dying. The Regulations for the Monitoring of Medical Assistance in Dying came into force on November 1, 2018, putting in place a pan-Canadian monitoring system to collect and analyze data on medical assistance in dying, monitor trends, and provide information to the public on the implementation of the law through annual reporting.

Provinces and territories have an interest in the information collected under the Regulations for their own monitoring purposes, as well as for the general administration of health care services. In most jurisdictions, including Quebec, data on medical assistance in dying was already being collected prior to the development of the Regulations. To minimize duplication and reporting burden on health care professionals, provinces and territories were given the option of designating a provincial or territorial recipient of the information required under the Regulations. In order to be named a designated recipient, provincial and territorial bodies had to agree to meet specific requirements designed to ensure the consistency and comprehensiveness of the national monitoring regime.

In Quebec, the Commission sur les soins de fin de vie was already receiving data from physicians in accordance with provincial end-of-life care legislation. At the time of prepublication of the draft federal monitoring Regulations in the Canada Gazette, Part I, on December 16, 2017, it was anticipated that this body would be the designated recipient for Quebec. However, it was ultimately unable to meet the necessary requirements due to provincial legislative provisions preventing the collection of some of the information required under the Regulations. As a result, the Commission could not be named as a designated recipient for Quebec and the final version of the Regulations indicated that health care professionals in the province would report to the federal Minister of Health.

To avoid a situation where health care professionals would have to report duplicative information provincially and to the federal Minister of Health, Health Canada and the Government of Quebec agreed to an interim solution shortly after the Regulations came into force. Quebec’s Ministry of Health and Social Services developed an online tool to enable health care professionals to file federal and provincial data requirements in one location. A formal bilateral agreement was signed in January 2019 specifying that the Ministry of Health and Social Services would collect the information required under the Regulations and submit it to the federal Minister of Health. This agreement will be formalized through the amendment of the Regulations.

Objective

This amendment to the Regulations will

Description

This amendment designates the Deputy Minister of Health and Social Services in Quebec as the recipient of medical assistance in dying information reported under the Regulations by Quebec health care professionals.

Regulatory development

Consultation

The draft Regulations for monitoring medical assistance in dying that were prepublished in the Canada Gazette, Part I, named the Commission sur les soins de fin de vie as the recipient of reports from health care professionals in Quebec. During the consultation period, Quebec stakeholders and government officials affirmed the importance of minimizing the reporting burden on health care professionals and flagged the potential for duplicative reporting with the information already being collected by the Commission under provincial legislation.

Specific to this regulatory amendment, in-depth bilateral discussions took place with the Ministry of Health and Social Services in Quebec in the period leading up to and immediately following the final publication of the Regulations in the Canada Gazette, Part II, on August 8, 2018. A series of exchanges between Health Canada and the Ministry of Health and Social Services resulted in the signed agreement confirming that the Ministry was able to meet the requirements of a designated recipient for Quebec.

This regulatory amendment was not prepublished in the Canada Gazette, Part I. Through the recent and comprehensive consultations on the Regulations, including the prepublished version that named a provincial-level recipient of reports in Quebec, Canadians have had the opportunity to provide comments on its direction. In addition, ongoing engagement with the provincial government and health care stakeholders in Quebec in the period following prepublication has affirmed the direction of the amendment. The amendment formalizes a pre-existing agreement between Health Canada and the Ministry of Health and Social Services in Quebec, so there will be no practical effect on those implicated.

Instrument choice

A non-regulatory instrument was put in place through the bilateral agreement between Health Canada and the Quebec Ministry of Health and Social Services; however, this is an interim measure. Reporting on medical assistance in dying in accordance with the Regulations is a requirement of the Criminal Code and a regulatory amendment is necessary for health care professionals in Quebec to be fully compliant with their obligations.

Regulatory analysis

Benefits

Medical assistance in dying in Canada is permitted through exemptions to the Criminal Code, which prohibits intentionally ending or helping to end another person’s life. It is critical that the Regulations governing the monitoring of medical assistance in dying in Canada are robust and consistent. This amendment will improve the coherence of the monitoring regime by aligning the relationship with Quebec with that of other provincial and territorial designated recipients.

Improved clarity with respect to reporting requirements is expected to increase rates of reporting by health care professionals in Quebec, enabling more comprehensive data collection and improving the comparability of the data with that of other provinces and territories. This amendment will also remove any potential legal risks that health care professionals may face by not adhering to the letter of the requirements of the Regulations, which currently specify that they must report to the federal Minister of Health.

Costs

This amendment is not predicted to create any additional costs to implicated parties. Given that the amendment formalizes an existing arrangement, it is anticipated that there will be no appreciable impact on Quebec health care professionals or the Ministry of Health and Social Services.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this amendment, as it does not impose any new administrative costs.

Small business lens

The small business lens does not apply, as there are no new administrative costs imposed.

Strategic environmental assessment

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal.

Implementation, compliance and enforcement, and service standards

Implementation

This amendment comes into force upon the day of registration. The Ministry of Health and Social Services in Quebec has taken steps to ensure that health care professionals are aware of their reporting requirements, and the amendment does not change those requirements.

Compliance and enforcement

The Ministry of Health and Social Services in Quebec, as the designated recipient, is responsible for reviewing reports and following up on missing, incomplete or erroneous filings as appropriate. Health Canada will collaborate with the Ministry as needed to support the effective monitoring of medical assistance in dying.

Contact

Sharon Harper
Policy Director
Strategic Policy Branch
Health Canada
200 Eglantine Driveway, 4th Floor, Room 411A
Tunney’s Pasture
Ottawa, Ontario
K1A 0K9
Email: hc.eolc-sfv.sc@canada.ca