Physician-Assisted Death: An Updated Status Report
Since the Supreme Court of Canada's seminal decision in Carter v. Canada, federal and provincial governments and regulators have struggled to determine how – not whether – Physician-Assisted Death (PAD) will be permitted and operationalized in jurisdictions across Canada. We prepared this "status report" on PAD in December to summarize the developments in PAD in 2015.
In the first month of 2016, PAD has continued to occupy the attention of the public, federal and provincial governments, physicians and their representatives, physicians' regulators and the Supreme Court of Canada. We have updated our "status report" on PAD to reflect these recent developments.
The Supreme Court of Canada’s Decision in Carter v. Canada
The biggest development with respect to PAD occurred with the February 6, 2015 release of the unanimous decision of the Supreme Court of Canada (SCC) in the case of Carter v. Canada (Attorney General)[2015] S.C.J. No. 5. As we summarized here, the SCC concluded that sections 14 and 241(b) of the Criminal Code were unconstitutional, to the extent that they prohibit PAD for certain persons, and declared theses sections to be void insofar as they prohibit PAD in those circumstances (the “Declaration”). However, the SCC suspended the effect of its decision for twelve months. Accordingly, unless the SCC agrees to extend the suspension of the Declaration, the Federal Government has until February 6, 2016 to amend the Criminal Code to comply with the decision, failing which, the prohibition on PAD would be of no force or effect.
The Federal Government’s Response
If the Federal Government chooses to enact legislation to permit PAD, it must at least permit PAD in circumstances where an individual:
Is a competent adult;
provides informed consent to PAD
has a “grievous and irremediable” medical condition (including an illness, disease or disability); and
believes that the suffering caused by their medical condition is intolerable.
CPSO
In response to the decision in Carter, the Harper Government established the External Panel on Options for a Legislative Response to Carter. The Panel’s mandate is to engage Canadians and key stakeholders on issues the federal government will need to consider in its response to the Carter ruling. The Panel submitted its report summarizing the results and key findings of its consultations is submitted to the Government on December 15, 2015. The Report was made public on January 18, 2016.The Ontario Government’s Response In view of the fact that health care is within the jurisdiction of Provinces, if PAD is not prohibited by criminal law in all circumstances, provinces may have a role in regulating PAD. For that reason, in August 2015 the Provincial and Territorial governments of Canada jointly established an expert advisory group on physician-assisted dying, After three months of consultations, this expert panel completed its final report on November 30, 2015. The expert panel made 43 recommendations with respect to access to PAD, eligibility criteria, the provision and availability of PAD, oversight, reporting, and education and training. The expert panel was particularly concerned with ensuring protection of vulnerable people and recognizing the conscientious objection of health care providers.The Government of Ontario continues to consider whether regulatory or other changes are required when the Declaration takes effect. It is developing a comprehensive strategy on end-of-life care that will focus on ensuring access to co-ordinated palliative care where patients want it and supporting families and caregivers. To that end, the Government of Ontario elicited people’s views on PAD and end-of-life care through in-person public consultations as well as through an online survey, which are now closed.The government will continue to work with the federal government, other provincial and territorial governments, and the College of Physicians and Surgeons of Ontario (“CPSO”) to develop a long-term plan for PAD in Ontario.The College of Physicians and Surgeons of Ontario’s ResponseThe CPSO similarly recognized that it has a role to play in the regulation of PAD, since the SCC does not have the authority to design an enabling regulatory framework for a regime in which PAD is permitted, and particularly since patients may apply to a judge for an exception to the current law until the Declaration takes effect. In that regard, the CPSO developed a draft guidance document, CPSO Interim Guidance on Physician-Assisted Death (the “Guidance Document”) for consultation, which was ultimately approved at its Council meeting on January 26, 2016. The Guidance Document is not intended as a substitute for a comprehensive regime to govern PAD. Rather, it is intended to provide guidance to physicians pending enactment of a new law or in the event that there is no regulatory framework in place in Ontario when the Declaration takes effect.The Guidance Document:
Summarizes the circumstances under which, according to the SCC, PAD should be permitted.
Prohibits physicians from charging fees in connection with PAD to patients directly
Acknowledges that physicians will not be compelled to provide PAD, but that physicians will have to comply with the CPSO’s Professional Obligations and Human Rights policy (for a review of this policy, see our article), which requires physicians who decline to provide PAD for reasons of conscience or religion:
Not to impede access to care, including PAD
To communicate any conscientious objection directly and with sensitivity, without expressing personal moral judgments about the patient or his or her choice
To provide the patient with information about all options for care that meet the patient’s clinical needs
To make an “effective referral” of the patient to another non-objecting physician or agency, in a timely manner.
Reviews physicians’ documentation requirements
Provides a sample process map for PAD
Proposes and advocates for the establishment of a formal oversight and reporting mechanism that would, pursuant to legislation, collect data on PAD
Refers to physicians' professional and legal obligations as set out in legislation and College policies and applies these to the PAD context
Provides guidance to physicians on practice-related elements specific to PAD
The CPSO solicited feedback from the public and the profession with respect to the Guidance Document, and amended it in several important respects before approving it. Of note,
the process map for PAD incorporated in the Guidance Document was clarified to reflect the CPSO's position that conscientious objectors are not required to assess whether the patient meets the criteria for physician-assisted death prior to making an effective referral; and
PAD can be provided to patients who are not residents of Ontario
A recommended waiting period of 15 days between a first and second request for physician-assisted death was removed, permitting the wait (period of reflection) to vary according to the circumstances of each case.
Developments in QuebecWell before the Supreme Court of Canada heard the Carter case, the Government of Quebec enacted legislation to permit PAD. Quebec’s Act Respecting End-of-Life Care came into effect on December 10, 2015. Adopted in June 2014 after six years of consultation, the law permits people to access PAD where they are terminally ill and suffering from unbearable physical or psychological pain. Interestingly, the language is inconsistent with the SCC’s ruling in Carter.Even before its effective date, however, the legislation was successfully challenged in the Superior Court of Quebec by a physician and a disabled woman who opposed euthanasia. In granting the injunction, Justice Michel Pinsonnault ruled that the Quebec law would violate the two provisions of the Criminal Code that were declared unconstitutional by the SCC. The Quebec Court of Appeal agreed to hear an appeal of the Superior Court’s decision urgently, and to suspend the decision to suspend the law pending the hearing of the appeal. Accordingly, the law took effect on December 10, 2015. The Quebec Court of Appeal subsequently allowed the appeal (overturning the Superior Court judgment), finding that the Quebec law doesn't contravene sections of the Criminal Code related to assisted dying because they were struck down by the SCC. The law has already been employed to permit at least one patient to die with the aid of a physician.Suspension of Declaration Extended On December 3, 2015, the federal government filed a motion in the SCC to extend, for a further six (6) months, the suspension of the Declaration. According to the government’s factum, the basis for the motion was the delay due to the intervening federal election and the difficulty of developing policy and legislation in a complex area.The federal government's motion was heard by the SCC on January 11, 2016. By a 5-4 majority decision dated January 15, 2016, the SCC granted the federal government's request for an extension of the suspension of the Declaration. However, the suspension of the Declaration was only extended for an additional four months, not six as requested by the government. The extension was granted in recognition of the fact that the delay in drafting new legislation to respond to the Declaration was due in part to the four month interruption in Parliament's work caused by the federal election. The SCC found that this interruption was an extraordinary circumstance that justified granting an extension of the suspension of the Declaration until June 6, 2016. However, the court exempted Quebec from this extension, allowing its recently passed PAD legislation (described below) to take effect, and crafted an exemption for individuals by permitting them to seek special permission from a superior court judge in their province to access PAD during the extended period of suspension.Access to PAD during Period of SuspensionIn its decision extending the suspension of the Declaration, the SCC granted an exemption for individuals wishing to seek assistance in ending their life during the extended period of invalidity. Such individual would be permitted to access PAD on the bases articulated in the Carter decision, as set out above.Although the SCC has given permission for individual to apply to their provincial superior court for an exemption in the circumstances set out above, it did not provide any guidance on how one would go about making such an application or what considerations would be involved. Accordingly, it is difficult to predict with any certainty what factors a court would consider in granting an exemption to an individual when face with an application of this nature, although we anticipate that the courts would be guided by any policies that have been released by provincial regulatory bodies. In Ontario, this would mean looking at the CPSO's Guidance Document.An application to the Ontario Superior Court of Justice would need to be initiated by the individual seeking assistance in ending their life. The application would likely need to be supported by affidavit evidence from the applicant and possibly a physician attesting to the fact that the applicant:
is a competent adult;
provides informed consent to PAD
has a “grievous and irremediable” medical condition (including an illness, disease or disability); and
believes that the suffering caused by their medical condition is intolerable to the individual in the circumstances of his or her condition.
The affidavit evidence would likely also include any steps taken or proposed to be taken in accordance with the PAD process proposed by the CPSO in the Guidance Document. Evidence regarding the nature of the individual's illness, disease or disability and any treatments proposed or undertaken would also be helpful, recognizing that the SCC held in the Carter decision that a person is not required to undertake treatments that are not acceptable to him or her in order for his or her condition to be considered irremediable.We will continue to monitor developments in the area of PAD. Please subscribe to our blog to be notified of updates.
