Edmonton

Alberta government must quash Covenant Health assisted-dying policy, professor says

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Prof. Ubaka Ogbogu says policy infringes on a patient’s right to safe, appropriate care

As she pursued a dignified end to her life, Doreen Nowicki had to be transported to a facility she didn't know, because her continuing care centre, operated by Covenant Health, refuses to facilitate medically assisted deaths.

A Covenant Health policy that allows the Catholic health provider to force patients from its facilities for their medical-assistance-in-dying assessments infringes on a patient's right to safe and appropriate care, a University of Alberta law professor says.

Prof. Ubaka Ogbogu, an expert in public health law, offered that opinion in response to a CBC News investigation that revealed a 66-year-old Edmonton ALS patient was forced to have an assessment on the sidewalk after Covenant Health abruptly revoked permission for her to have it on Covenant property.

"To say you can't receive that [on-site assessment] as a patient, I think is just flat-out wrong," said Ogbogu, who sits on the Council of Canadian Academies' expert panel on medical assistance in dying (MAID).

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Ogbogu said if necessary the Alberta government must force Covenant Health to abandon its current policy, which he said creates legal liability for the province and is "terrible" for patients and their families.

Alberta Health Minister Sarah Hoffman was not available for an interview. In an emailed statement, she said Covenant Health had assured her a similar situation would not happen again, and she invited feedback from Albertans whose relatives have gone through the MAID process.

Like many Catholic health providers across Canada, Covenant Health refuses to facilitate medical assistance in dying for religious reasons. The provincial government has exempted the publicly funded organization from having to provide those services.

But Covenant Health's MAID policy extends beyond its refusal to allow medically assisted deaths in its facilities. The health provider's default position is that its patients also cannot undergo on Covenant Health property the two Alberta Health Services (AHS) assessments necessary to determine if they legally qualify for the procedure.

Assisted-death discussion held on street

Covenant can — and has — allowed on-site assessments by AHS staff in "exceptional circumstances" that take into account the medical fragility of the patient.

Its policy, however, is equivocal: Even if a patient is "extremely medically fragile" and is unable to stop treatment or be transferred without risk of harm, Covenant Health still only "might" allow the patient to be assessed on its property. The policy is not set to be reviewed for another two years.

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Ogbogu said nowhere are the problems with this ambiguous policy better illustrated than in the case of Doreen Nowicki.

In May 2017, Nowicki was a patient in palliative care at the Edmonton General Continuing Care Centre, a Covenant Health facility. She had ALS, a neurological disease that gradually paralyzes people, and her health had deteriorated to the point where she couldn't walk or speak, and could barely eat. Nowicki decided to pursue a medically assisted death.

Because she was so ill, Covenant Health management initially made an exception and gave Nowicki permission — two weeks in advance — to have her MAID assessments conducted at the Edmonton General.

An hour before Nowicki's first assessment, however, her family learned Covenant had abruptly changed its mind and she would now need to leave the property. Nowicki's daughters had to wheel her off the property, to street benches near the busy Edmonton main street Jasper Avenue, so she could keep her appointment with the AHS assessor.

She was too distraught, however, to complete the assessment.

"It was a disaster," said Ogbogu, who sits on the board of the Health Quality Council of Alberta. "There is too much going on here that is discretion based; there is too much uncertainty."

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"You can't have a policy that doesn't give the patient some certainty about what kind of health care they are going to receive," Ogbogu said, adding patients and their families could sue the province for negligence if the patients suffered harm by being forced off Covenant property.

Further, he said there must be more discussion about whether a publicly funded health provider like Covenant Health can legally refuse to provide MAID. Ogbogu said Canadian law isn't settled on that issue.

'Holding everyone to ransom': professor

In an interview, Covenant Health's chief medical officer, Dr. Owen Heisler, admitted the health provider failed Nowicki, who eventually did receive an assisted death after being transported off the Covenant site. He refused to say who ultimately decided to revoke permission for an on-site assessment, and why.

Heisler defended the current policy and said Covenant often allows patients to have on-site assessments, though he admitted the health provider doesn't track how many patients are forced to have their assessments off site.

But Ogbogu said the Catholic health provider has conflated the assessments with assisted death itself. He said assessments, which sometimes conclude a patient doesn't qualify for MAID, reveal critical information about the kind of health-care services a patient needs, including palliative care.

For that reason, Ogbogu said he believes non-objecting Covenant Health staff should provide the MAID assessments to their patients, rather than AHS staff.

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The law professor said under its current policy, Covenant Health is preventing the MAID process from functioning as efficiently as it should, and is "holding everyone to ransom, including the patient and AHS," in health-care situations that are incredibly time sensitive.

Ogbogu said the provincial government must step in to protect patients' rights.

"The stakes are quite high because we have one of the largest health-care providers within the province saying they won't provide a service," he said.

If you have information about this story, please contact us in confidence at cbcinvestigates@cbc.ca.

@jennierussell_