Canadian Government Introduces Assisted Dying Law
Today, April 14, 2016, marks a historic day as the Canadian government tabled long-awaited legislation in the House of Commons regarding a deeply personal issue for Canadians – medical assistance in dying (“MAID”). As explained by the Minister of Justice and Attorney General of Canada in a press conference this morning, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), would give dying patients the dignified choice of a peaceful, medically-assisted death.
The new legislation was developed and introduced in response to the landmark decision of Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”), in which the Supreme Court of Canada (“SCC”) declared the Criminal Code provisions on assisted suicide to be unconstitutional in so far they prohibit competent adults who have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition from consenting to a physician-assisted death. The SCC has given the Federal government until June 6, 2016 to enact legislation to comply with the Carter decision, at which time the prohibitions on physician-assisted dying in Carter-specified circumstances will become invalid.
Overview of the New Legislation
In general, Bill C-14 would amend the Criminal Code provisions to outline exactly how MAID may be carried out, including for whom and by whom. As specifically explained by the government, the new legislation does not oblige any health care professional to provide MAID. Instead, it exempts physicians and nurse practitioners, and any person who aids them, from facing criminal consequences for assisting a person in bringing about their death where they do so in accordance with the process set out in the legislation. Under the legislation, MAID includes both administration of a substance by a physician or nurse practitioner that causes death, as well as prescribing a substance for self-administration.
Eligibility for Medical Assistance in Dying
Bill C-14 provides that a person may receive MAID only if they meet all of the following criteria:
they are eligible for publicly-funded health services in Canada;
they are at least 18 years of age and capable of making decisions with respect to their health;
they have a grievous and irremediable medical condition;
they have made a voluntary request for MAID that was not made as a result of external pressure; and
they give informed consent to receive MAID.
No MAID for Minors or non-Residents
These criteria exclude mature minors and non-Canadian residents from accessing MAID. This means that a 17 year-old with a grievous and irremediable medical condition, who is capable of making decisions with respect to his or her health care and meets all other eligibility criteria, would not have the right to access MAID. Equally, the legislation effectively precludes “suicide tourism” whereby citizens from other countries would travel to Canada to end their life with the help of a medical professional.
Meaning of Grievous and Irremediable Medical Condition
Of particular importance (and likely contention) are the parameters that the Federal government set out in Bill C-14 around the term “grievous and irremediable medical condition”. Under the new legislation, a person has a grievous and irremediable medical condition if:
they have a serious and incurable illness, disease or disability;
they are in an advanced state of irreversible decline in capability;
that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Several of these limitations do not fit squarely with the SCC’s decision in Carter, which did not indicate that a person must be at the end of life, have an incurable or terminal diagnosis, or be at an advanced stage of disease. Furthermore, these requirements are inconsistent with the reports of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying (2015) and the Federal Special Joint Committee on Physician-Assisted Dying (2016), which recommended that access to MAID not be limited to individuals with a terminal illness. On its face, it is very unclear what a “reasonably foreseeable” death means. The Minister of Justice and Attorney General of Canada indicated that the legislation will look to physicians and nurse practitioners to impart their expertise in order to determine what a “reasonably foreseeable” natural death means in each individual case. What is reasonably foreseeable in our view, however, is that this particular criterion will inevitably lead to considerable problems and uncertainty, and possible further litigation.
Safeguards for Vulnerable Individuals
Bill C-14 also contains number of safeguards that appear to be aimed at protecting vulnerable Canadians. These safeguards include the following requirements:
Two independent health practitioners must confirm that the person requesting MAID meets all of the eligibility criteria
The request for MAID must be in writing and signed by two independent witnesses
A 15 day mandatory “reflection period” must occur between the date on which the request was made and the day on which MAID is provided
Immediately before providing MAID, the physician or nurse practitioner must give the person the opportunity to withdraw their request and ensure that the person gives express consent
Physicians, nurse practitioners and pharmacists must provide certain prescribed information to a prescribed recipient or, where no recipient has been designated under the regulations, the Minister of Health
There is to be a review of the provisions of Bill C-14 every 5 years
Advance Requests, Mature Minors, and Psychiatric Conditions
In its February 2016 report, the Federal Special Joint Committee on Physician-Assisted Dying recommended that Canadians should have the right in certain circumstances to make an advance request for MAID and that within three years the right to MAID should also be extended to mature minors. These particular individuals would not meet the requirements for access to MAID under the new legislation as currently drafted and advance requests are not permitted. In addition, under Bill C-14, individuals would be ineligible for MAID where a psychiatric condition is the sole underlying illness, disease or disability. The government indicated, however, that it will be moving forward with further research regarding these contentious areas if the legislation passes.
What’s Next?
While there are many reasons to applaud the government’s choice to introduce legislation in advance of the impending deadline, some are concerned that the legislation is too restrictive and takes an approach to MAID that is inconsistent with the SCC’s decision in Carter. There may of course be changes made to the newly proposed legislation as it makes its way through the House of Commons and there will undoubtedly be fervent debate on this issue amongst politicians, medical practitioners, and the general Canadian public in the weeks and months that follow.
Until the new law is passed, individuals are required to seek authorization from a Provincial Superior Court if they wish to access MAID. For more information on the new legislation or court applications for MAID, please contact us. We will provide updates on our blog as the Bill proceeds through Parliament and the discussion surrounding it unfolds.
