Consultations on Physician-Assisted Dying - Summary of Results and Key Findings
Part III – A Report on the Panel’s Consultations
Chapter 11. Participation and Compliance
Not all physicians will be willing or able to provide assisted death. Those who are may need adequate training. Physicians need clear protections to ensure that they will not suffer professional repercussions from participating or refusing to participate in assisted death. Further, all health care providers who choose to participate in assisted dying in accordance with the Carter decision and do so in good faith need assurance that they will not be subject to criminal prosecution. This section outlines these considerations and reviews the main points the Panel heard in the course of its consultations.
A. Conscience Protection
1. Physicians’ Conscientious Objection
Section 2(a) of the Canadian Charter of Rights and Freedoms guarantees the fundamental freedom of conscience and religion. In the Carter decision, the Supreme Court confirmed that physicians cannot be forced to provide assistance to an individual who is seeking assistance to die. The Court held:
In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.Footnote178
The Panel’s consultations revealed that the medical profession is divided over the issue of physician-assisted dying. While some physicians consider it an ethical imperative to provide assistance in dying if an individual with a grievous and irremediable medical condition wishes to end their intolerable suffering, others feel that it is fundamentally incompatible with a physician’s role in, and commitment to, the practice of medicine. Many stakeholders emphasized that the wide range of clinical, religious, ethical, and personal values held by physicians and other health care professionals (e.g. nurses and pharmacists) will lead some to conscientiously object to directly participating in assisted death. Physicians build relationships of trust with their patients. Consequently, some physicians believe that allowing physicians to facilitate or cause the death of a patient could erode this trust and affect perceptions of physicians’ role in, and commitment to, caring for individuals regardless of medical condition.
A related topic is the duty of physicians to refer an individual to another physician or to inform the individual about how to access assisted dying services. Many groups maintained that physicians should provide the individuals who request assisted dying with referrals. Conversely, many others noted that the act of providing a referral or information amounts to complicity, and that physicians should be free from any such obligation. In a written submission to the Panel, Dr. Michael Eleff, a psychiatrist from the University of Manitoba, stated:
I do not see it as appropriate to compel a physician to refer a patient requesting this procedure to a colleague who is not opposed to participating. … A mechanism of referral through the provincial Colleges, which might be invited to maintain a voluntary registry, would be less troubling. Essentially, this provides a mechanism for self-referral.
Some groups, such as a network of British Columbia physicians, also proposed that in order to ensure that access to physician-assisted dying is not limited as a result of conscientious objections, physicians should be required only to provide information.
Dr. Linda Ganzini, a psychiatrist and researcher in Oregon, suggested that psychiatrists who oppose physician-assisted dying not be allowed to evaluate individuals making such a request, because their moral beliefs could influence their assessment of an individual’s eligibility.
Despite the diversity of approaches, stakeholders were unified in the view that physicians and other health care professionals’ conscience rights must be respected and that those who choose not to participate must not face negative repercussions. A number of stakeholders argued that conscience rights are an important safeguard that insulates the medical profession from coercion that could lead to moral distress and burnout. It is important to note that the provincial and territorial colleges of physicians and surgeons establish specific protocols governing conscientious objection.
The Canadian Medical Association (CMA) emphasized that physicians who choose not to participate in assisted dying must not face discrimination. To balance these rights with eligible individuals’ need to access physician-assisted dying, the CMA suggested that physicians should be expected to provide individuals with complete information on all options available to them, including physician-assisted dying, and advice on how to access “separate central information, counselling and referral service.” Mr. Larry Worthen of the Christian Medical and Dental Society of Canada told the Panel that his organization had made a similar proposal to the CMA and added that many physicians would feel less personally implicated if a self-referral service were available.
The Canadian Pharmacists Association recommended that there be a mechanism allowing an objecting pharmacist to refer to a colleague. The Canadian Nurses Association (CNA) made a similar suggestion and stressed the need to avoid abandoning individuals in the event of a conscientious objection. According to CNA’s code of ethics, nurses who conscientiously object must continue to provide care while alternate arrangements are made. The CNA further specified that in the event of an objection, it is essential that the individual receive information about how to pursue physician-assisted dying.
Many groups suggested that robust protection be provided to those who decline to support or participate in physician-assisted dying. Mr. Sean Murphy of the Protection of Conscience Project, for example, suggested procedures to ensure that physicians are not compelled to participate in assisted dying during emergency situations. He also suggested that a physician who agrees to help an individual end their life by prescribing a lethal dose of medication that an individual would self-administer must also be willing to inject the lethal medication should complications arise, to ensure that the obligation would not fall on a colleague who may have a conscientious objection.
The medical regulatory bodies expressed a range of views on the matter. The Collège des médecins du Québec described the process outlined in Québec’s provincial legislation, An Act respecting end-of-life care. The law requires that an objecting physician ensure the continuity of care to the individual. In addition, a physician who objects must forward the request to the relevant director general, who is then responsible for finding a willing physician.Footnote179
The College of Physicians and Surgeons of Ontario took the position that physicians who object to physician-assisted dying requests have a positive obligation to make an effective referral. An effective referral, as described by the Ontario College, is a referral made in good faith to a non-objecting available and accessible physician, other health care professional, or agency. The College noted that the medical community has an obligation to ensure access and that conscientious objection should not create barriers. The College of Physicians and Surgeons of Saskatchewan suggested that when an objection to a procedure is made, the physician must provide the individual with the appropriate information regarding an agency that they may contact for advice. The College of Physicians and Surgeons of Manitoba agreed that while physicians who conscientiously object should not be required to provide a referral, they should have an obligation to provide timely access to another person or resource that will provide accurate information about physician-assisted dying.
Dr. Monica Branigan of the Canadian Society of Palliative Care Physicians highlighted how valuable a separate parallel access process could be to palliative care physicians and facilities. She noted that a separate system would not only serve professionals with a conscientious objection, but also reinforce the separation between physician-assisted dying and palliative care. She stressed that links between physician-assisted dying and palliative care should be avoided for the following reasons:
Palliative care providers have spent decades trying to reduce the fear around palliative care. Many equate palliative care with death and harbour concerns that our medications and our care will shorten their live. We must reassure our patients that the pain medications we prescribe won’t harm them. Equating hastened death with palliative care will destroy the [hard work we have done] to help patients and families accept our help at the end of life.
The Catholic Civil Rights League (CCRL) noted that some medical professionals consider it objectionable to even make a referral for physician-assisted dying. The CCRL added that requiring physicians and medical students to participate in referral and training regimes for physician-assisted dying could result in the “moral erosion” of the medical profession. On the other hand, Dr. Kevin Imrie of the Royal College of Physicians and Surgeons noted that physicians, regardless of conscience, have a professional responsibility to learn about physician-assisted dying so they may provide individuals with relevant and accurate information.
Dr. John Soles, President of the Society of Rural Physicians of Canada, raised some important considerations regarding rural and remote communities. Due to the limited number of physicians in such areas, he questioned whether it was fair to require individuals to travel great distances to inquire about and receive such services, and whether it was reasonable to require physicians to travel great distances to provide such services. In light of the unique challenges rural communities will face, Dr. Soles raised questions that will require consideration when establishing Canada’s physician-assisted dying framework. He asked:
if nobody in the community wishes to participate in this process, then what do you do? Do you have somebody come in to have a discussion with the patient? Do you send a patient who’s presumably unwell… to some distant place to have that consultation?
The Canadian Unitarian Council echoed concerns about access issues if physicians in remote communities opt out due to conscientious objection. The Council proposed a web platform enabling physicians to see and assess individuals as a way to alleviate access challenges in remote communities.
2. Institutional Objection
A number of groups suggested that institutions as a whole should be permitted to conscientiously object to providing physician-assisted dying services. The Euthanasia Prevention Coalition stressed that some health care facilities—for example hospices, long-term care facilities, and faith-based organizations—should be “safe places” and “places of trust” where individuals and their families can be certain that physician-assisted dying will not be raised as an option. Mr. Michael Kekewich, an ethics consultant for the Ottawa Hospital, echoed the sentiment that hospices may not want to engage in physician-assisted dying because it could create confusion about the roles of hospice and palliative care. Mr. Michael Shae of the Catholic Health Alliance of Canada noted that since physician-assisted dying is a direct contradiction of the institutional values and missions of Catholic health organizations, many will not participate in the practice in any form.
The British Columbia Civil Liberties Association argued that public hospitals and clinics are so integral to the health care system that they should not be permitted to conscientiously object. Dying with Dignity Canada made a similar observation: that institutional objections could severely limit access to assisted dying, particularly for individuals who reside in areas with limited health care facilities.
Mr. Jean-Pierre Ménard, Chair of the committee of legal experts Québec tasked with recommending legislative options for implementing medical aid in dying in the province, flagged a challenge that arose as a result of institutional objections. Section 8 of Québec’s Act respecting end-of-life care requires that
“every institution must offer end-of-life care,”Footnote180 which includes medical aid in dying. Section 65 of the Act permits palliative care facilities to opt out of this requirement if they offer palliative care exclusively.Footnote181 He noted that as a result of this exception, all palliative care hospices in Québec stated that they would not offer medical aid in dying. He suggested that this is problematic because as public institutions, they should not be allowed to object. In the meantime, a palliative care facility in Québec—Maison Aube-Lumière—has publicly stated it will offer such services.Footnote182
Institutional objection is permitted in OregonFootnote183 and Washington.Footnote184 Laws in both states permit institutions to prohibit a health care provider (a health care professional or a body within the institution, such as a pharmacy or clinic) from providing medication for the purpose of ending an individual’s life on the institution’s premises. Vermont also permits health care facilities to prohibit a physician from writing a prescription for a person who resides in the facility and intends to use the medication on the facility’s premises.Footnote185
B. Training and Licensing
The two bodies primarily responsible for establishing standards for physician training in Canada are the College of Family Physicians of Canada and the Royal College of Physicians and Surgeons of Canada. The College of Family Physicians is responsible for family doctors’ training standards, and the Royal College is responsible for specialists’ standards.
Following its discussions with the College of Family Physicians of Canada and the Royal College of Physicians and Surgeons of Canada, the Canadian Medical Association (CMA) has agreed to take the lead in establishing training materials for physicians to learn how to perform physician-assisted dying. According to the organization, general practitioners could perform physician-assisted dying because they already possess the required basic skills, although further training may be required. The CMA is not, however, adopting the position that specific accreditation is necessary.
The CMA noted that physicians would have to elect to train for physician-assisted dying and that, as in the Dutch model, ongoing education and follow-up would be provided. The training would cover not only the technical elements of physician-assisted dying, but also matters of consent.
The College of Family Physicians of Canada (CFPC) identified the competencies it plans to ensure are developed. Specifically, it noted that many individuals seeking assisted dying often raise concerns about loss of dignity. The CFPC said it would ensure that family doctors would discuss options for enhancing dignity through appropriate supports. The CFPC said it must remain cognizant of the scope of its responsibility in providing care to a patient. It also committed to ensuring that the:
skills and knowledge training for all aspects of this clinical role—communications, evaluation of the patient making the request, shared decision making where appropriate, prescribing, support for family members, among many others—are delivered and reinforced in residency training and continuing professional development.
The CFPC noted that while it believes that discussions about physician-assisted dying must be part of the core residency curriculum of family physicians, it has yet to determine whether the administration of physician-assisted dying will be part of the core curriculum.
The Royal College of Physicians and Surgeons of Canada told the Panel that it supports the CMA position that some additional training is needed, along with some confirmation that this training has been completed. Further, it noted that such training should be developed in consultation with the CMA and the CFPC to ensure that training for family and specialist physicians is consistent.
Some of the interveners in Carter argued that only physicians with federal licences created under the Criminal Code should be permitted to perform physician-assisted dying. The Association for Reformed Political Action (ARPA) was one such group, arguing that:
doctors would need to be licensed in order to make sure that they know the legislative regime, that they know all of the other options out there, like palliative care options, the proper system to ensure consent is found, to make sure that the entire process is properly recorded for verifying consent later on, and so on and so forth.
ARPA did not speculate on how federal licensure for physician-assisted dying might interact with the existing jurisdictional framework, in which the provinces and territories are responsible for licensing professionals, including physicians.
The Physicians’ Alliance against Euthanasia also advocated licensure for physician-assisted dying, comparing it with authority to prescribe methadone and medical marihuana. To prescribe methadone, physicians must be exempted under section 56 of the Controlled Drugs and Substances Act, and often need the support of their licensing body.Footnote186 The Catholic Health Alliance of Canada and the Evangelical Fellowship of Canada also recommended federal licensure. The Christian Medical and Dental Society of Canada recommended licensure, but did not specify which level of government should take on this responsibility.
C. Violations and Penalties
Almost without exception, individuals and groups that appeared before the Panel reiterated the need identified in Carter for a system of safeguards to protect vulnerable individuals. As detailed in the earlier sections of this report, many who appeared before the Panel suggested specific safeguards, but few indicated what consequences, if any, should follow if such safeguards are not respected.
Ensuring compliance with procedural safeguards is an important safeguard in and of itself. Safeguards could potentially be meaningless unless compliance is ensured. Most of the compliance obligations will fall to physicians, and the Panel recognizes that measures must also be taken to protect physicians who comply with the law. These protections are discussed in the following section.
It is also important to distinguish between criminal offences and penalties on the one hand, and professional discipline on the other. The Panel heard in Belgium in particular, as well as in the Netherlands and Oregon, that minor instances of regulatory noncompliance likely do not justify criminal sanctions. Each of Belgium, the Netherlands and Oregon have oversight and monitoring mechanisms in place, but never—until very recently in Belgium—had a case in any of these jurisdictions been referred to a prosecution service. This is not because every assisted death complied with regulations, but rather because minor instances of noncompliance were addressed by professional regulatory bodies. The Christian Medical and Dental Society of Canada proposed that instances of professional misconduct should lead to licence revocation and that physicians should be held criminally responsible if they fail to comply with procedural safeguards.
In Oregon, the Panel heard from Dr. Peter Reagan, a physician and member of the board of Compassion and Choices. He described some examples of minor noncompliance, such as not waiting 14 days to administer assisted dying, and discrepancies between the date of a witness signature and the date of the signature of the individual who obtained assisted death. These examples would not lead to criminal charges, but instead would be referred to Oregon’s Board of Medical Examiners. The Panel heard similar reports during a subsequent teleconference with Katrina Hedberg, State Epidemiologist for Oregon.
Media reports suggest that a Belgian case that was referred to prosecution involved more than a minor administrative irregularity. The case involved a physician who assisted in the death of an 85-year-old woman who allegedly had not met the eligibility criteria.Footnote187 The woman was suffering from grief following the death of her daughter three months earlier.
The Panel met with two lawyers who have separately prepared model legislation to respond to Carter. Although the two model bills diverge considerably with respect to procedural safeguards, they include similar offences and penalties for failing to comply with safeguards. Professor Jocelyn Downie told the Panel that she published her model bill soon after the Carter decision to demonstrate how Carter might be implemented easily and efficiently. Her bill would create offences for failing to comply with procedural safeguards. The bill drafted by David Baker adopted many of the same suggestions for related offences.
In her model legislation, Professor Downie created a number of offences, including the following:
- A person commits an offence if he willfully falsifies or forges a [written request for physician-assisted death] … with the intent or effect of causing the person’s death. A person guilty of an offence under this subsection shall be liable, on conviction, to imprisonment for a term not exceeding twenty-five years.
- A witness commits an offence if he willfully puts his name to a statement he knows to be false. A person guilty of an offence under this subsection shall be liable on conviction to imprisonment for a term not exceeding five years.
- A person commits an offence if he willfully conceals or destroys a [written request for physician-assisted death or a revocation of such a request] ... A person guilty of an offence under this subsection shall be liable on conviction to imprisonment for a term not exceeding five years.
- An assisting or consulting physician involved in the care of a patient commits an offence if he takes any part whatsoever in assisting a patient to die or in giving an opinion in respect of such a patient, or acts as a witness if he has grounds for believing that he will benefit financially or in any other way as the result of the death of the patient. A person guilty of an offence under this subsection shall be liable on conviction to imprisonment for a term not exceeding five years.
Offences 2 through 4 appeared in slightly different versions in Bill S-225, a Senate public bill tabled in 2014.Footnote188 David Baker adopts all of the above offences in his model legislation. It may be important to note that there are elements of knowledge and intentionality in all of these offences. Terms such as “willfully” and “believing” indicate intentional acts rather than errors or omissions. This is consistent with many other criminal offences.
David Baker adds the following offence, which appears in similar form in the Oregon and Washington legislation:
A person commits an offence if he encourages, coerces or unduly influences a Patient to choose Physician-Assisted Suicide. A person guilty of an offence under this subsection shall be liable, on conviction, to imprisonment for a term not exceeding twenty-five years.
This offence, while not directly related to procedural safeguards, could also act as a safeguard that deters coercion. It is similar to the current section 241(a) of the Criminal Code, which prohibits counselling suicide, although the penalty of up to 25 years in prison is significantly greater than the 14-year prison term included in section 241(a).
D. Good Faith Compliance Protections
In all U.S. jurisdictions that have enacted legislation regulating assisted dying, there are good faith compliance protections for physicians. Oregon has adopted the following provision:
No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with [this Act].Footnote189
Washington and California adopted similar provisions. Vermont adopted the following provision, limiting protection to physicians:
A physician shall be immune from any civil or criminal liability or professional disciplinary action for actions performed in good faith compliance.Footnote190
There are opponents to such protections. The Panel heard from Marilyn Golden, a senior policy analyst with the Disability Rights Education and Defence Fund. She called the Oregon provision deplorable, arguing that it unreasonably insulates physicians:
[I]t makes negligence by doctors legal because it says that no practitioner will be subject to any liability—criminal, civil—if they act in good faith, which is something nearly impossible to disprove, making all the other rules about assisted suicide in the Oregon model unenforceable. Even perhaps more serious, for everything else doctors do, they’re liable, at least in the U.S., if they’re negligent. But with assisted suicide, even if negligent, practitioners cannot be found violating the law as long as they practice in so-called good faith. So that’s a big problem.
Anna MacQuarrie, Director of Global Initiatives, Policy and Human Rights with Inclusion International expressed similar concerns. Such protections are not unprecedented in Canadian law. For example, the following is a Criminal Code provision protecting health care providers who must carry out warrants to collect blood:
No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person ..., and no qualified technician acting under the direction of a qualified medical practitioner, incurs any criminal or civil liability for anything necessarily done with reasonable care and skill when taking the sample.Footnote191
Because physician-assisted dying is an exemption to the Criminal Code prohibition on assisted suicide, a physician who does not comply with the requirements of the exemption could face a charge of assisting suicide and the associated penalty of up to 14 years in prison. The Saskatchewan College of Physicians and Surgeons raised the question of whether there will be protection for physicians in the context of “legitimate differences in perspective as to whether a patient does or doesn’t have certain of the criteria that are determined by Carter.” The College argued that physicians need assurance that if they comply with the requirements and believe in good faith that their patient met the criteria, they will not face criminal charges.
The Ontario College supported the Saskatchewan College’s position, as did the Manitoba College, which noted that physicians deserve to feel comfortable in the procedures they perform and that it would be bad for the public if physicians do not feel this comfort. Dr. Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada and Registrar of the College of Physicians and Surgeons of Nova Scotia called good faith protections for physicians “really necessary.”
The Canadian Nurses Protective Society (CNPS) recommended that a clear exemption be created that explicitly acknowledges that physicians and nurses may discuss physician-assisted dying with patients. This concern arose because of the intact section 241(a) of the Criminal Code, which prohibits counselling suicide. The CNPS point out that discussions about physician-assisted dying could arise during an individual’s care and that it should be appropriate for a health care professional to be engaged in such discussions, regardless of whether an individual meets the eligibility criteria.
If a provision were enacted that protected good faith compliance, it could nonetheless be accompanied by additional provisions that prohibit willful noncompliance and criminal behaviour. For example, while the Oregon Act protects good faith compliance, it also creates offences related to coercion, altering or forging requests for assisted dying, contemplates “civil damages resulting from other negligent conduct or intentional misconduct by any person” and does not “preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions” of the Act.Footnote192
As with several other topics addressed in this chapter, if protections are created for physicians, it may be important to consider whether to extend such protections to other health care professionals who may be directly or indirectly involved in physician-assisted death.
E. Providers’ Concerns over Criminal Offences not Addressed in Carter
To adequately protect physicians who are prepared to provide assisted death, and other health care providers who may participate in the procedure, certain sections of the Criminal Code not addressed in Carter may warrant scrutiny—specifically, the section prohibiting counselling a person to commit suicide, and the one prohibiting the administration of a noxious thing.
1. Prohibition on Counselling a Person to Commit Suicide
Much of the focus of the Carter litigation was on section 241(b) of the Criminal Code, which prohibits aiding or abetting suicide. Receiving significantly less attention was section 241(a), which prohibits counselling a person to commit suicide, and calls for the same maximum penalty of a 14-year prison term as does section 241(b). In fact, the Supreme Court in Carter held that
“section 241(a) of the Criminal Code does not contribute to the prohibition on assisted suicide.”Footnote193
Although section 241(a) is not as directly relevant as 241(b), the Canadian Nurses Protective Society expressed serious concern to the Panel about section 241(a) in the context of physician-assisted dying. Nurses are often the health care providers who have the most direct contact with patients, and may sit with anxious people late into the night discussing treatment options. The Canadian Nurses Protective Society emphasized that if a person wanted to address the option of assisted dying with a nurse during one of these discussions, such a discussion should not lead to criminal charges for the nurse.
The Supreme Court has held in other contexts that “counselling” is a “deliberate encouragement or active inducement.”Footnote194 Although this use of the term “counselling” may differ from its use in a therapeutic context, confusion could persist among health care providers. The Catholic Civil Rights League strongly recommended that these provisions be maintained. However, the Canadian Nurses Protective Society explicitly acknowledged that section 241(a) does not capture therapeutic interactions. The Canadian Nurses Protective Society argued that there could be a chilling effect, whereby nurses and other health care providers might avoid these discussions out of fear of potential criminal implications.
Nurses and other health care providers engage in a great deal of counselling as part of their therapeutic relationships with patients. They must feel confident that they may discuss any legal treatments that a patient chooses to explore. It may therefore be important to consider whether legislative changes are necessary to protect this aspect of care, while at the same time protecting people who may be vulnerable to coercion or undue influence.
2. Administering a Noxious Thing
Individuals and groups also expressed concerns about section 245:
245. Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence and liable
- (a) to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person; or
- (b) to imprisonment for a term not exceeding two years, if he intends thereby to aggrieve or annoy that person.
This section was not addressed in Carter, but the Catholic Civil Rights League raised it as a matter of potential concern. This section has been applied in the medical context. In 1992, a nurse administered a lethal dose of a substance to a 78 year-old man unable to live without life support to alleviate the man’s suffering. The nurse was charged with manslaughter, but pled guilty to the lesser offence of administering a noxious thing.Footnote195 In 1993, a physician who performed a similar act on a 70 year-old woman near death was charged with second-degree murder and also pled guilty to administering a noxious thing.Footnote196 It may therefore be important to consider whether legislative changes are necessary to protect physicians administering assisted dying from prosecution under section 245.
Chapter 12. System Oversight
Almost every group and individual to appear before the Panel agreed about the need for adequate oversight. Advocacy groups, medical regulators, supporters and opponents all recognized that mechanisms must be in place to ensure that physician-assisted dying occurs in a transparent, safe and respectful manner. Dying with Dignity Canada argued that
“every single case of assisted dying needs to be reported” and each case should be reviewed after death occurs. It also called for systemic review:
“this is a matter of public interest. We need to know what’s going on.”
A. Oversight Body
Implementing, administering and overseeing physician-assisted dying, which implicates aspects of criminal law and health care delivery, presents a unique challenge in Canada’s federal system. The criminal law falls neatly under federal jurisdiction, but health law is, as the Supreme Court noted in Carter, an area of concurrent jurisdiction, with the provinces having jurisdiction over health care delivery. Ensuring that a physician-assisted dying framework operates smoothly and is well monitored will require collaboration between the federal government and the provinces and territories.
1. Existing Models
Many jurisdictions that permit assisted dying have formal oversight mechanisms in place. In three jurisdictions, independent bodies monitor assisted dying. The Netherlands has five regional euthanasia review committees; Belgium has the Commission fédérale de contrôle et d’évaluation de l’application de la loi sur l’euthanasie; and Québec has the Commission sur les soins de fin de vie. American jurisdictions that have legalized assisted dying task their state departments of health with collecting relevant data.
In the Netherlands and Belgium, legislation mandates the composition of the bodies that review data. In the Netherlands, the committees must be composed as follows:
A committee is composed of an uneven number of members, including at any rate one legal specialist, also chairman, one physician and one expert on ethical or philosophical issues. The committee also contains deputy members of each of the categories listed in the first sentence.Footnote197
The review committees in the Netherlands publish a code of practice, which, according to lawyer and academic Johan Legemaate, summarizes
“all of the thousands of verdicts [the committees] have given over the past 12, 13 years, summarizing the main focus points of these committees when looking at the legal criteria for assisted dying.” There is also a complete review of the operation of the legislation every five years. While the Panel heard assurances that this committee provides fair and impartial oversight, others expressed concern about the implications that the committee had not, to date, forwarded one case for prosecution.
In Belgium, the Commission must include among its 16 members eight physicians, four lawyers, and four members familiar with end-of-life care. As indicated by Belgian Senator Jean-Jacques De Gucht, the Commission must table a report in the legislature every two years that presents statistics on assisted dying, the operation of the legislation and any recommended improvements.
During its discussion with Jean-Pierre Ménard, chair of the committee of legal experts tasked with recommending legislative options to implement medical aid in dying in the province of Quebec, and Michelle Giroux, Professor of Law and also a member of the above-mentioned committee, the Panel heard about the commission that will establish standards and monitor the practice of medical aid in dying in Québec. Some aspects of the commission’s operation are set out in Québec’s Act respecting end-of-life care.
2. Federal or Provincial Oversight?
Although there was a great deal of support for oversight bodies, there were differing views on whether such oversight could or should be performed at the federal level. In its submission to the Panel, the Canadian Bar Association argued for oversight bodies at the provincial level, likely acknowledging the provinces’ jurisdiction over health care delivery. Mr. Howard Shapray, a lawyer in private practice and the husband of assisted-dying advocate Elayne Shapray, also called for data to be gathered and analyzed provincially rather than federally. He did, however, note that data could be “dealt with cooperatively between the provincial and federal authorities.”
Dr. James Downar, a palliative care physician and executive member of Dying with Dignity Canada’s Physicians Advisory Council, argued for separate oversight bodies:
There are two concepts. The individual case review would have to be provincial. It’s going to be plugging into local colleges. If you report a case and there’s a problem that’s got to be referred locally either to the authorities, the police, or referred to the college for professional ramifications. Both of those operate at the provincial level.Oversight in terms of population-wide reporting and trends in end-of-life care, looking to the effect on palliative care with the legalization of assisted death, that’s something it makes more sense to do federally. I could see that happening at two different levels, the individual case oversight and the general research oversight.
Although the Ontario College of Physicians and Surgeons strongly supported the need for monitoring, it did not take a position on whether this function should be performed at the national or provincial level.
Many groups that proposed an oversight body supported the establishment of a national body, noting the need for consistent data collection across the country. The Canadian Nurses Association was one example:
Health care providers need to have the same access to the same information and resources needed for assisted death treatment. We all need to speak the same language ... a national oversight body to ensure a uniform standard of care and practice, and to ensure consistency of data monitoring and reporting, is required. In this way, trends and adverse events can be tracked and analyzed. Such an approach would allow physician-assisted death to be evaluated properly, and we can make sure it is being provided in a safe, competent, and ethical manner.
The Canadian Federation of Catholic Physicians’ Societies called for a national body, not only for consistency, but also for greater transparency and accountability. The Canadian Civil Liberties Association called for a federal body to set best standards for the delivery of physician-assisted dying and to publish data on how the system operates. It noted that an advantage of a federal body could be avoiding complications related to the restrictions on data sharing set out in provincial privacy legislation.
The Saskatchewan College of Physicians and Surgeons argued for a national body over a provincial one:
If it can be done nationally, I think it's going to be a whole lot better than maybe ... an oversight board in Saskatchewan established by Saskatchewan with its own mandate and maybe there won't be one in Manitoba and there will one in Ontario with a different mandate, which I think just creates that patchwork that we’re hoping that we can avoid in some way.
Professor Jocelyn Downie, a health lawyer and academic, also suggested that oversight should be at the national level; in model legislation she published soon after the Carter decision was released, she proposed the “Commission to Monitor and Report on Physician-Assisted Dying in Canada.”Footnote198 The Commission would consist of a chair and ten other commissioners, among them:
- Two members are to be physicians (one of which must be from the palliative care community)
- One member is to be a nurse
- One member is to be a pharmacist
- Two members are to be health lawyers
- Two members are to be health care ethics experts
- Two members are to be lay members of the public
Former Member of Parliament Steven Fletcher proposed a similar body through a private member’s bill.Footnote199
3. Alternate Canadian Models
Aside from Québec’s newly created Commission, there are existing bodies in Canada that could serve as models for an oversight body. Dr. Downar of Dying with Dignity Canada suggested that a useful model might be an arm’s length corporation, such as Canadian Blood Services
“funded separately with a specific public mandate.” Professor Jocelyn Downie made a similar suggestion. The Saskatchewan College of Physicians and Surgeons proposed oversight bodies similar to the specialty societies in medicine that provide standards and guidance to specialist physicians.
There were also suggestions that existing federal entities could take on the role of an oversight body. Dr. Downar suggested that Health Canada could do so, provided that it had separate, guaranteed funds, and the Canadian Nurses Protective Society suggested that the Canadian Institute for Health Information could take on this role.
Although some very useful suggestions were made, not all of the existing bodies seemed willing to take on the proposed responsibility. For example, the Panel met with a network of physicians in British Columbia that suggested that the colleges of physicians and surgeons could act as oversight bodies. The colleges did not appear receptive to this idea, however. The Panel heard that some physicians may be hesitant to engage with their college, and so might be less likely to comply with reporting requirements if the colleges perform oversight.
Dr. Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada and Registrar of the College of Physicians and Surgeons of Nova Scotia noted that he had approached the Nova Scotia Medical Examiner Service about its willingness to play an oversight or monitoring role, but he was not sure whether it would agree. Similarly, the Ontario College approached Ontario’s Office of the Chief Coroner, and the Office was not willing to be involved.
4. The Role of an Oversight Body
The Panel heard many suggestions about potential roles for an oversight body, with data collection, policy leadership and reporting being the most common. The rest of this chapter addresses several of these issues. Professor Jocelyn Downie outlined the following as mandatory roles for the oversight commission she proposed:
- develop a form that the patient must complete and give to the assisting physician for inclusion in the patient’s medical record. This form shall solicit non-identifying information including but not limited to information about the patient including demographics (age, sex, marital status, education level, income level), medical condition, and reasons for seeking assistance;
- collect and analyze data from the submitted forms;
- generate and make available to the public an annual statistical report of information collected under this Act;
- oversee the application of the specific requirements relating to assisted dying set out in s. 241.1; and
- carry out any other mandate given to it by the Minister.
Professor Downie further suggested the following tasks the commission could undertake at its discretion:
- conduct or commission research it deems necessary in accordance with relevant federal, provincial, and territorial law and policy;
- solicit the opinion of individuals or groups on any assisted dying issue;
- call on outside experts to report on any assisted dying issue; and
- make recommendations to the Attorney General of Canada about potential law and policy reform with respect to assisted dying in Canada.Footnote200
A national oversight body might also take on a policy leadership role. During the Panel’s meeting with the Federation of Medical Regulatory Authorities of Canada, the Saskatchewan College of Physicians and Surgeons recommended that a national oversight body could make
“recommendations—if it turns out that there are some issues that aren’t being appropriately addressed or complications that weren’t really anticipated—[on] improving the system.” A national oversight body that reviews trends and draws conclusions might be in an ideal position to inform and shape the future of physician-assisted dying across the country. The Saskatchewan College also suggested that the oversight body provide flexible policy leadership in the future and give guidance on various evolving medical issues.
The Panel met with Linda Voortman and Renske Leijten, members of Parliament in the Netherlands and of the Parliamentary Committee on Health, Welfare and Sport, who explained that their country’s regional euthanasia review committees are an appropriate venue to discuss controversial assisted dying cases. In their view, the committee was the right place for this discussion, rather than the Dutch Parliament.
Dr. Thomas Foreman, Director of the Champlain Centre for Health Care Ethics at the Ottawa Hospital, proposed that establishing a robust oversight mechanism could alleviate the concerns of groups speaking on behalf of potentially vulnerable individuals by demonstrating that their concerns are being addressed in a concrete and thoughtful manner:
[We] need to be respectful and considerate of the opinions of communities that feel as though this practice could bleed out and cause vulnerable people to be even more vulnerable. And so I think as a way of giving a nod to the legitimacy of that concern, having a fairly robust system of review post facto will help the system be able to say we’ve heard what you’ve said, we’ve considered what you said and in practice we are controlling for that by having a review. So if we start to see bleed-out, we have an ability to check and stop it.
Dr. Jennifer Tong, from a network of BC physicians who
“are deeply concerned regarding the significant risks to vulnerable patients and society at large” as a result of the Carter ruling, raised a related point about building trust among those who oppose physician-assisted death:
what we would like to see is that there would be representation of physicians such as ourselves at policy level, so that there could be dedicated time, protected time to … carefully look into all the details because, as the saying goes, the devil’s in the details. And we’re concerned to see that … these details are carefully looked at, not just by physicians who are proponents for physician[-assisted dying], but also those who have concerns.
B. Anonymized Data
Many groups emphasized that data should be collected anonymously, citing the need to protect individuals’ privacy and to promote physician compliance in reporting. On the issue of privacy, the College of Physicians and Surgeons of New Brunswick noted that in smaller communities, it could be easy to identify individuals from details in their medical files;
“nothing is done without running into your second cousin here.”
Marilyn Golden, a senior policy analyst with the Disability Rights Education and Defense Fund in California, argued that data collection is important for researchers, but noted that the data need not include identifying information. The Canadian Nurses Protective Society noted that it was
“very convinced [that] anonymized data” would be used and
“would be of great interest to researchers of all kinds.” The Euthanasia Coalition-B.C. also argued that data could be “decoupled” from personal information.
Dr. Isabelle Marcoux, a psychologist and Assistant Professor with the University of Ottawa, raised the issue of anonymity to ensure physician compliance. She has conducted research in the Netherlands, where physicians’ reporting of assisted dying was initially quite poor. She recommended anonymous data to ensure that physicians do not avoid reporting out of fear of reprisals due to noncompliance.
The Panel had two models of data collection presented to it: those of Belgium and Oregon. In both, the assisting physician is responsible for reporting. In Oregon, the consulting physician, pharmacist, and if applicable, psychiatrist or psychologist also have reporting obligations.Footnote201
In Belgium, the Panel heard from Jacqueline Herremans, a lawyer and member of the Commission de contrôle et d’évaluation de l’euthanasie. She explained that physicians must fill out a two-part form after assisting an individual to die:
One part is confidential, and is sealed. So [members of the Commission] don’t open automatically the first part. It’s the part with the name of the patient, the name of the doctor, the name of all the people involved, consultants and so on. The second part is not confidential... the part you have to examine, but without names, without the name of the doctor, without the name of the patient.
The identifying portion of the form remains sealed unless the Commission suspects noncompliance with the law. If noncompliance is suspected, the Commission unseals the confidential portion of the form and seeks further information from the assisting physician.
The Panel also heard from Dr. Katrina Hedberg, a physician and State Epidemiologist for Oregon who described data collection in her state. Physicians in Oregon fill out forms to record the individual’s medical history, along with some demographic data and the individual’s stated reasons for seeking assisted dying. These forms contain identifying information about the individual and the physician. Data from these forms are uploaded into a database in an anonymized manner, and analyzed to identify and evaluate trends, but the original forms are destroyed after one year.
C. Which Data Should be Collected and from whom?
In the course of its meetings, the Panel learned about some of the relevant data collected in other jurisdictions. In Oregon, all data collection occurs through forms available on the Oregon Health Authority’s website.Footnote202 The forms seek information from attending and consulting physicians (including mental health professionals, if applicable) and pharmacists. There is a form for an individual’s use, called the Patient Request Form, but it asks only whether they have informed their families of their decision. Demographic data and data about motivation are collected from assisting physicians, not from the individuals themselves. Dr. Katrina Hedberg, State Epidemiologist for Oregon, noted that state law requires data collection only up to the point of prescribing lethal medication, with a follow-up form from the pharmacist stating the specific medication dispensed.
Québec lawyer Jean-Pierre Ménard drew the Panel’s attention to section 8 of Québec’s Act respecting end-of-life care, which sets out the data that must be collected under the Act:
[Translation] The report must include the number of end-of-life patients who received palliative care, the number of times continuous palliative sedation was administered, the number of requests for medical aid in dying, the number of times such aid was administered as well as the number of times medical aid in dying was not administered, including the reasons it was not administered.
The report must also state, where applicable, the number of times continuous palliative sedation and medical aid in dying were administered at the patient’s home or in the premises of a palliative care hospice by a physician as a physician practising in a centre operated by the institution.
Many groups that met with the Panel argued that the amount of data collected in jurisdictions that monitor assisted dying is insufficient. Marilyn Golden of the Disability Rights Education and Defense Fund critiqued data collection in Oregon as lacking in depth and breadth. She argued that:
Restricting access to information about the indications for assisted suicide, patient data, radiologic documentation, and specific drug therapy limits the opportunity to establish an objective standard of care, provides excessive protection to the physician, and, in the name of confidentiality, leaves patients vulnerable.
Ms. Golden also called for collecting data from sources other than those currently involved in Oregon, including physicians who deny requests for assisted dying; allied health care workers, including nurses and social workers; and family members of the deceased.
A number of other groups and individuals made specific recommendations about data collection:
- Dr. Isabelle Marcoux, psychologist and Assistant Professor with the University of Ottawa, called for data to help researchers determine what motivates people to seek physician-assisted dying. Almost all other groups that called for data collection indicated a need to better understand motivation.
- The Canadian Nurses Protective Society called for data to understand “the profiles of patients who are requesting or receiving” physician-assisted death and “the length of time between request and assistance.”
- The Council of Canadians with Disabilities called for data to “
track and report on first of all the number of requests, secondly the reasons given, thirdly using aggregate data like medical condition, socio-economic circumstances and demographic factors associated with persons making requests and those whose requests are authorized or denied.”
- The Euthanasia Prevention Coalition (Canada) called for interviews with people seeking assisted dying for a more in-depth understanding of motivation.
- Dr. Katrina Hedberg, State Epidemiologist for Oregon, suggested collecting data about support for family members, as did the Canadian Hospice Palliative Care Association.
- Dr. Hedberg suggested collecting data in several other areas, such as
“more in-depth information about the patients, both from the time of diagnosis to the decision making and what kind of supports they need all the way up until death;”“
understanding that not only what’s going into the patient’s consideration, but what’s going into family members and the healthcare system;”
“knowledge, attitude, practices ... What do they think? What are their choices? What kinds of things do they go through?”
- Brian Mishara, Professor of psychology at the Université du Québec à Montréal and Director of a research and intervention centre on suicide and euthanasia (Centre de recherche et d'intervention sur le suicide et l'euthanasie (CRISE)) suggested that suicide rates be monitored. When questioned on a potential association between assisted suicide and suicide rates, Professor Mishara responded that there was no such indication from jurisdictions where assisted suicide is permitted, and that, as a result, increased efforts in suicide prevention may not be required when physician-assisted suicide is implemented. However, several groups raised concerns about a potential link between the two concepts and monitoring the situation could help provide reassurance.
D. Reporting Timelines
To be effective, reporting must be timely. Québec’s Act respecting end-of-life care mandates reporting to the Commission sur les soins en fin de vie (the Commission) after a physician administers medical aid in dying. The Act requires that a physician give notice to the Commission, in the manner prescribed by regulations, within ten days following the administration of medical aid in dying.Footnote203
In her draft legislation, Professor Jocelyn Downie proposes a federal oversight body: the Commission to Monitor and Report on Physician-Assisted Dying in Canada. She proposes that an individual who requests physician-assisted death must fill out any forms that the Commission requires and that these forms must be submitted to the Commission within 14 days of their being placed in the individual’s medical record. Any further information the Commission requires would have to be submitted within 14 days of the individual’s death.Footnote204
E. Death Certificates
A crucial role of any oversight body is to collect, analyze and report on data. Many groups, including the Canadian Medical Association, mentioned death certificates as a primary source for data collection. The Panel heard divergent opinions about whether death certificates should list cause of death as physician-assisted dying, or reference the underlying illness, disease or disability.
At the outset, it is important to note that the regulation of death certificates falls under provincial jurisdiction. For this reason, it is difficult to foresee a national oversight body having direct influence on provinces’ management of death certificate systems. Nonetheless, the Canadian Medical Association told the Panel that pan-Canadian guidelines are necessary to foster clarity and consistency in these important records.
Medical regulators also addressed the issue of death certificates. Dr. Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada and Registrar for the College of Physicians and Surgeons of Nova Scotia, indicated that physicians will need clear guidance on filling out death certificates and on the life insurance implications of physician-assisted death.
1. Recording Physician-Assisted Death on Death Certificates
Dr. Isabelle Marcoux and Marilyn Golden recommended that physician-assisted death be listed on death certificates to promote accountability and transparency. The Council of Canadians with Disabilities, the Canadian Federation of Catholic Physicians’ Societies and the Catholic Civil Rights League all shared this view.
The Euthanasia Prevention Coalition and a network of British Columbia physicians also recommended this approach, and further suggested that death certificates also record information about the underlying condition, the administering physician and the facility where the procedure took place.
Dying with Dignity Canada supported the idea of recording comprehensive and detailed information on death certificates. The group noted that death certificates are not widely circulated, reducing the likelihood that listing the actual cause of death could compromise individual privacy. Dying with Dignity Canada also suggested that individuals who choose physician-assisted dying should be protected from potential financial losses or loss of insurance benefits by compensation mechanisms.
Experts in Belgium, including researchers Luc Deliens and health lawyer and academic Herman Nys, told the Panel that physician-assisted death is never listed as the cause of death in that country’s death certificates. They advised that death certificates in Canada should list physician-assisted dying as the cause of death for accurate data collection and reporting, and recommended that an oversight body receive all of the information on death certificates in cases of physician-assisted dying.
In Switzerland, Bernhard Sutter, Executive Director of Exit, a society that facilitates assisted dying for Swiss citizens, indicated that death certificates in that country identify assisted suicide as the immediate cause of death, whereas Switzerland’s Federal Office of Statistics records the underlying illness.
2. Reporting the Underlying Medical Condition on Death Certificates
Several stakeholders indicated that listing assisted death on death certificates is inappropriate because it violates individuals’ privacy and could deprive loved ones of benefits from insurance policies and other contracts.
Dr. Katrina Hedberg from Oregon noted that her state’s Public Health Division recommends that physicians list the underlying illness as the cause of death on the death certificate, but that the final decision rests with each physician.Footnote205 This recommendation stems from concerns about patient confidentiality, and from the fact that the primary purpose of the death certificate is to act as a legal document allowing others to settle the estate of a deceased. Peg Sandeen, Executive Director of the Death with Dignity National Centre, noted that in the state of Washington, it is mandatory to record the underlying condition on death certificates.
The province of Québec established a mechanism whereby three different notifications arise from the administration of medical aid in dying: an attestation of death (constat de décès), a death certificate (bulletin de décès), and a notice to the Commission sur les soins de fin de vie. Death certificates list the underlying medical condition as the cause of death and copies are sent to the Institut de la statistique du Québec. Medical aid in dying is not to be listed on the certificates to protect privacy and to avoid prejudice.
The Commission sur les soins de fin de vie, not the Institut de la statistique du Québec, is responsible for keeping a statistical account of medical aid in dying. Consequently, Québec’s Act respecting end-of-life care requires that after physicians provide medical aid in dying, they must
“give notice to the Commission within the next 10 days and send the Commission, in the manner determined by government regulation, the information prescribed by regulation. This information is confidential and may not be disclosed to any other person.”Footnote206 The mandatory notices are the Commission’s primary source for data on medical aid in dying. This approach, the Panel was told, helps protect confidentiality and maintain accurate statistics.
F. Open Data and Targeted Funding
The Panel heard that to be useful, data must be accessible and targeted funding must be made available for research and analysis. Johan Legemaate, a lawyer and researcher, indicated that in the Netherlands, data are collected and a systemic review is conducted every five years. The government funds this research; researchers apply for grants and an independent body evaluates their proposals.
Some experts and groups suggested that funding must be set aside to ensure that the practice of physician-assisted dying is properly evaluated in Canada. Dr. Katrina Hedberg noted that Oregon’s Death with Dignity Act does not set aside funding for data collection and analysis. She indicated that the current level of data collection and analysis is generally considered adequate by all except those opposed to assisted dying. She also indicated that if more extensive data were to be collected and analyzed, earmarked funding would be necessary. Professor Jocelyn Downie advocated earmarked funds, as did Dying with Dignity Canada’s Dr. James Downar.
Professor Jocelyne St-Arnaud, a bioethicist at the Université du Québec à Montréal, called for earmarked funding to support independent evaluation of physician-assisted dying. Similarly, Anna MacQuarrie, Director of Global Initiatives, Policy and Human Rights with Inclusion International addressed the importance of making data on physician-assisted dying public so that civil society groups could conduct independent evaluations.
G. Periodic Review of Legislation
As mentioned above, oversight bodies in the Netherlands and Belgium conduct periodic reviews and produce regular reports about assisted dying. Many groups in Canada recommended periodic review and some would require tabling reports in Parliament. The Council of Canadians with Disabilities, for instance, suggested annual reports to Parliament, while Dying with Dignity Canada advocated regular reviews to help identify abuses of the law and potential barriers to access.
Many federal Acts require reports to Parliament. Under some legislation, such as the Canada Health Act, a minister must report annually;Footnote207 other legislation, such as the federal Access to Information Act requires a commissioner to report to Parliament.Footnote208 The federal Privacy Act mandates a permanent review of the Act by Parliamentary committee.Footnote209 Legislation on physician-assisted dying could also include provisions for regular parliamentary review.
Several groups described review processes to the Panel. The Association for Reformed Political Action, for instance, proposed that a judicial panel evaluate physician-assisted dying legislation every three years:
[I]f a judicial panel finds that the rules are not being followed, or that people are being assisted in their suicide who never gave proper consent, or any sort of slipping or sliding is happening at all, that we have the power built into the legislation to stop or at least re-evaluate the legislation. And certainly those who are afraid of a slippery slope would feel much more at ease if there were a proper judicial review every three years.
The Catholic Civil Rights League recommended that either Parliament or a federally appointed panel conduct a review every three to five years. The Evangelical Fellowship of Canada suggested that a federal oversight body be established and that this body should:
collect relevant data, report regularly to Parliament and [this] information needs to be made public so that we can keep ... accurate statistics of what’s happening, what kind of requests are being made, what are the circumstances.
H. Enforcing the Obligation to Report to an Oversight Body
Some groups called for a law making it a criminal offence to improperly report a physician-assisted death. Marilyn Golden with the Disability Rights, Education and Defence Fund in the United States has suggested that reporting requirements can lack “teeth” unless there are penalties for physicians who fail to report properly. The Council of Canadians with Disabilities indicated that voluntary reporting by physicians is insufficient. Similarly, Dr. Isabelle Marcoux noted that voluntary data collection would not ensure proper monitoring because physicians may not report practices that do not conform exactly to legislated requirements, perhaps due to fears of facing prosecution.
To counteract this effect, it may be necessary to create an offence for intentionally failing to report to an oversight body. Professor Jocelyn Downie’s model legislation would make it an offence for a physician to wilfully fail to submit required information, such as forms completed by the requesting individual. The offence would be punishable by up to five years in prison.Footnote210 Professor Jocelyne St-Arnaud suggested another way to prevent noncompliance would be to emphasize training rather than punishment.
In cases of delayed reporting, or other minor instances of noncompliance, professional discipline may be more appropriate than criminal sanctions. The Panel heard from Dr. Katrina Hedberg, State Epidemiologist and State Health Officer of Oregon, that Oregon’s Public Health Division is responsible for reporting noncompliance to the appropriate licencing board. The licencing board (of physicians, nurses or pharmacists) undertakes its own investigation and imposes any sanctions it deems appropriate.
In Québec, physicians who fail to notify the Commission sur les soins en fin de vie that they have administered medical aid in dying are subject to professional disciplinary measures. A person who is aware of a breach of a reporting requirement must bring it to the attention of the Collège des médecins du Québec.Footnote211
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