Medically-Assisted Dying – Where are we, and where are we going?

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Authors: Lynsey Gaudin, Erin Wolff, Kristél Kriel

There have been a number of recent developments in medically-assisted dying in Canada, but the rules that will apply remain unclear. This blog briefly examines the current state and future of medically-assisted dying in Canada.

What was the law?

Until last year, it was a crime in Canada under the Criminal Code for anyone to assist another person to end his or her own life. Consequently, persons suffering from grievous and irremediable illnesses were denied the ability to seek a physician’s assistance in dying to end their suffering.

How has the law changed?

The Supreme Court of Canada released its landmark decision on physician-assisted dying on February 6, 2015. In Carter v Canada (Attorney General), the Supreme Court of Canada struck down the provisions of the Criminal Code that created an absolute criminal prohibition against assisted dying in Canada. In particular, these provisions were declared invalid to the extent that they prohibited physician-assisted dying for: (1) a competent adult person; (2) who clearly consents; and (3) has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

An important component of the Carter decision is that physicians would not be compelled to provide assistance in dying. Instead, a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief. In particular, the Court emphasized that the Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to Carter.

Where we stand until the federal, provincial, and territorial governments respond

Initially, the declaration of invalidity was suspended for 12 months until February 6, 2016 to allow the federal, provincial, and territorial governments to respond, should they choose to do so, by enacting legislation consistent with the parameters sets out in the Carter decision.

On January 15, 2016, the Supreme Court of Canada suspended the declaration of invalidity for a further 4 months until June 6, 2016 to allow the federal government additional time to work on the legislative response to the Carter decision.

As such, subject to two important exceptions, it is still a crime in Canada for anyone to assist another person to end his or her own life until June 6, 2016 (unless legislation comes into force before that time). The two exceptions are as follows:

  • Québec, where physician-assisted dying is governed by legislation that came into force on December 10, 2015 to govern end-of-life assistance in Québec (Act respecting end-of-life care, CQLR, c. S-32.0001); and
  • for the remainder of Canada, anyone who wishes to seek assistance in ending their life on the bases articulated in Carter may apply to a superior court in their jurisdiction for relief during the extended period of suspension.

Earlier this year, the Ontario Superior Court of Justice issued a practice advisory to provide guidance on how individuals can seek assistance under the second of these exceptions. There have since been at least two cases (in Ontario and Alberta) where individuals have been granted permission to proceed with a physician-assisted death despite the current suspension of the declaration of invalidity of the Criminal Code provisions.

Guidance for the federal, provincial, and territorial governments

In November, 2015, the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying issued its Final Report, which outlined key recommendations for a pan-Canadian approach to physician-assisted dying.

In February, 2016, the Special Joint Committee on Physician-Assisted Dying issued its Final Report, which outlined key recommendations for the federal response on physician-assisted dying.

Response by professional bodies

In the absence of legislation, professional regulatory bodies have introduced guidelines for professionals faced with requests relating to physician-assisted dying. For example, such guidelines have been adopted by the Canadian Medical Association and by physician colleges in British Columbia, Alberta, Saskatchewan, Manitoba, and Ontario.

Proposed federal legislation

On April 14, 2016, the federal government introduced draft legislation to clarify the rules that will apply to physician-assisted dying. Bill C-14 (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)) proposes to make various amendments to the Criminal Code to exempt health care practitioners who provide, or help to provide, medical assistance in dying, from otherwise applicable criminal offences.

Some of the highlights of Bill C-14 include:

  • The legal approach to medical assistance in dying will be consistent across Canada.
  • Medical practitioners and nurse practitioners, those who assist them (including pharmacists), and other persons who assist patients in medically-assisted dying are exempt from Criminal Code offences provided the necessary conditions are met.
  • The criteria to be eligible for medically-assisted dying include that individuals must: be eligible for government-funded health services in a Canadian jurisdiction, be at least 18 years of age and have capacity to make health-related decisions, have a grievous and irremediable medical condition, make a voluntary request for medical assistance in dying, and give informed consent.
  • Individuals have a grievous and irremediable medical condition if: they have a serious or incurable illness, disease or disability, they are in an advanced state of irreversible decline in capability, they are caused enduring physical or psychological suffering that is intolerable and which cannot be relieved under conditions that they consider acceptable, and their natural death has become reasonably foreseeable.
  • Some key safeguards in medically-assisted dying include a medical practitioner or nurse practitioner opinion that all eligibility criteria are met, a written, signed, and independently witnessed request (made after natural death has become reasonably foreseeable), the opinion of a second independent medical practitioner and/or nurse practitioner, a minimum 15-day time period between the date of the request and the medically-assisted dying, the ability to withdraw the request at any time, and the opportunity to withdraw the request immediately prior to the medically-assisted dying.
  • Medical professionals involved in medically-assisted dying are required to provide information to the Minister of Health or other designated recipients.
  • Criminal offences exist for failing to comply with required safeguards, forging or destroying documents, and failing to provide required information.
  • A parliamentary review of the legislation five years after it becomes law.

It is important to note that Bill C-14 is not yet law. Before Bill C-14 becomes law, it must go through a number of stages in both the House of Commons and Senate. This includes, among others, debates and more detailed studies. It is also important to note that various amendments to Bill C-14 can be proposed and adopted before it becomes law. At the time of writing, Bill C-14 had been referred to the Committee on Legal and Constitutional Affairs for pre-study.

You can read more about Bill C-14 and the federal government’s approach in the announcement and Backgrounder recently published by the federal government.

So, where are we and what can we expect in the future?

At a very high level, the following is a snapshot of where we are and what we can expect in the future for medically-assisted dying in Canada:

  • Until June 6, 2016 or until the proposed federal legislation comes into force, it remains a crime in Canada (subject to important exceptions) to assist another person to end his or her life.
  • The federal government has proposed legislation that will assist in clarifying the rules that apply to medically-assisted dying in Canada. The proposed legislation must go through various stages before it becomes law.
  • Various professional regulatory bodies have provided guidance to their members which will further assist in clarifying how requests for medically-assisted dying will be treated.

In addition to these items, the federal government has committed to studying related contentious items such as mature minors, advanced directives, and situations where mental illness is the sole underlying condition. These items are not currently addressed in the proposed legislation.

As such, going-forward, a number of items will shape the rules that apply to medically-assisted dying in Canada. The development of these items, along with the associated developments in palliative and end-of-life care, will likely be key items to watch for in the coming months.