Dying with Dignity may challenge Ontario law exempting religious hospitals from offering assisted death

While more than 630 Ontarians to date have legally ended their lives with the help of a nurse or doctor, none have been able to do so within the walls of a hospital that has historic ties to the Catholic Church.

But advocates for medically assisted dying argue that since these are public-funded health-care centres, they are bound to offer the option — even though Ontario law currently exempts any person or institution that objects.

It's legislation that Dying With Dignity Canada may challenge in court, according to the group's CEO.

"What Ontario did is they gave an opt-out to basic and essential health care to hospitals that don't want to provide for the dying," says chief executive Shanaaz Gokool.

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Instead, the law states that the hospitals, hospices and long-term care centres unwilling to perform medically assisted death must transfer a patient to a facility that will. They must do the same in cases of abortion, which is also forbidden by the ethical guidelines set out by the Catholic Health Alliance of Canada. 

While such transfers might be possible for a woman of child-bearing age, Gokool said that switching facilities may not be as easy for someone at the end of life who is older, more frail and likely already in pain.

"It really depends on how precarious their physical medical condition is," she said. "And if they are in a precarious state physically, then that can cause them more trauma."

The advocacy organization supports the idea that individual nurses or doctors can choose not to provide the service, but said that the legal right to object should not extend to an organization.

Dying with Dignity's potential legal challenge would not only tackle that exemption, Gokool said, but also a clause in Bill 84 that restricts freedom-of-information access around medically assisted dying.

Secrecy around where it's available

The clause forbids freedom-of-information officers from releasing information that names which facilities assist — or do not assist — in patients ending their lives. Not only does that limit the data given to social justice organizations, but it makes it harder for patients or family members trying to navigate their end-of-life options, Gokool said.

Ontarians should have the right to know what facilities are and are not providing publicly funded services.- Ontario Information and Privacy Commissioner Brian Beamish

"We won't be able to use freedom-of-information requests to hold the government accountable in terms of what is happening with these kinds of transfers," she said.

Ontario's information and privacy commissioner Brian Beamish vehemently opposed the access-to-information clause in Bill 84 when it came up for debate last spring. Beamish said the proposal wasn't based on any evidence that the release of the information would cause any harm.

'The right to know'

In Alberta, hospices and hospitals can also refuse a patient's request for a medically assisted death. But there, public health institutions not only have to provide a transfer, but they have to publish the data each week showing how many people have had to go elsewhere for a medically assisted death.

"Making information about facilities available to the public will, as a practical matter, assist individuals in making choices about where they may receive services, as well as highlight any barriers," Beamish wrote in March. 

"This transparency will assist in preventing incidents similar to the one endured recently by a resident of British Columbia who experienced an 'excruciating transfer' after the hospital to which he had been admitted refused his request for medical assistance in dying."

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The case mentioned by Beamish is similar to that of Horst Saffarek, a Comox, B.C., man who chose and qualified for an assisted death last year.

But the only hospital in the rural community was a Catholic facility and would not provide the service. That meant Saffarek had to take an hour-long drive by ambulance to Nanaimo.

"I'm thinking, 'Is he going to survive it?'" his daughter Lisa Saffarek told CBC News in June. "This dying, elderly man was stuck in the back of an ambulance so he could access his dying wishes."

Saffarek died the next day without the assistance of his medical team.

It's unclear how many such transfers have happened in Ontario, given the fact that the province doesn't collect this information and the law would prohibit the privacy commissioner from releasing it.

Which hospitals offer it now?

Providence Healthcare, the umbrella organization that runs three Toronto hospitals: St. Michael's, St. Joseph's and Providence, told CBC News this week that no one can receive medical assistance in dying at any of its sites.

It will arrange for a patient to go elsewhere, but its spokesperson Beth Johnson said the organization has not transferred any patients from those hospitals or from its long-term care centre, Cardinal Ambrozic Houses of Providence.

However, that statement does not appear to include patients that were transferred from St. Michael's or St. Joseph's before they joined the health consortium last week.

Freedom-of-information documents provided to CBC Toronto by Dying with Dignity Canada indicate that at least one person was to be transferred from St. Michael's to another site in October 2016 in order to undergo a medically assisted death.

The information — released before the changes that came with Bill 84 — shows that the hospital would not perform assisted dying at its site, but it did allow two palliative-care internists to go with their patient elsewhere when he chose to die.

Toronto Grace Health Centre, operated by the Salvation Army, also does not perform assisted dying, hospital CEO Mary Ellen Eberlin confirmed by email. She could not say whether anyone had been transferred in order to have an assisted death.

Because hospitals are not legally required to reveal whether patients can undergo medically assisted death, it's hard to know exactly where it's available. 

The four major health centres under Toronto's University Health Network do offer medical assistance in dying — a policy clearly stated on the organization's website. Hamilton Health Sciences does the same. And 179 medical professionals in the province have performed one, according Ontario's Ministry of Health. 

Making it accessible

Health Minister Eric Hoskins said that anyone interested in learning more about medical assistance in dying can contact the "care co-ordination service" launched by the province last May. 

It will connect them with health-care staff who are willing to carry out the procedure. 

Hoskins said he believes people can now access medically assisted death without any need to compel certain facilities to offer it. He acknowledged its accessibility is different than that of abortions, but said he's confident the current system is working. 

"We're obviously monitoring it very, very closely and currently don't have those concerns in terms of access," he said. "And about half of medical assistance in dying happens at home, it happens in no institution."