Superior Court Direction on Physician-Assisted Death Applications
As we previously reported on our blog, on January 15, 2016 the Supreme Court of Canada (“SCC”) granted an extension of the suspension of the invalidity of the Criminal Code prohibition against physician assisted death (“PAD”) until June 6, 2016. At the same time, the SCC carved out an exemption, permitting individuals to apply to a superior court judge for an order that would allow them to access a PAD during the period of extension in accordance with the criteria set out in the decision of Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”).
On January 29, 2016, the Ontario Superior Court of Justice (the “Court”) released a Practice Advisory on applications for judicial authorization of PAD. Given that such applications to the Court are entirely novel, the Practice Advisory provides invaluable guidance to counsel and parties who wish to seek an exemption to the Criminal Code prohibition against PAD over the next few months. In particular, the Practice Advisory contains information on how to commence an application, who must be served, the evidence to be presented, and the orders available to the judge hearing the application.
Commencing an Application
An application for authorization for a PAD must be commenced by notice of application under Rule 14 of the Ontario Rules of Civil Procedure. The Practice Advisory sets out the specific requirements for the content of the Notice of Application, including that it set out if the applicant intends to seek a publication ban, an order to have the application heard in the absence of the public, or an order to seal the file, as well as the grounds for seeking such an order. This requirement appears to be indicative of the Court’s willingness to preserve the private nature of applications for a PAD. It is not yet clear, however, what would be required for such an order to be granted by the Court.
At least seven days before the hearing of the application, the applicant must serve and file an Application Record and Factum (i.e. a written argument).
Providing Notice of the Application
The Attorney General of Canada and the Attorney General of Ontario must be served with the Notice of Application. In addition, the Practice Advisory indicates that under certain circumstances the Court may require that Notice of the Application be served on the applicant’s spouse/partner, children, parents, grandparents, siblings, and any other person who will be affected by the order sought.
The Evidence
The evidence will be set out in the application record. The Practice Advisory requires that the application record include evidence in the form of affidavits from the following individuals:
The applicant, including information concerning:
the applicant’s biographical information (i.e. birth date, place of residence, etc.)
the applicant’s medical condition and suffering (addressing the criteria from Carter);
the reasons for the request;
whether the applicant commenced the application after having been fully informed about his or her medical condition, diagnosis, prognosis, treatment options and palliative care options and their respective association risks, and the risks associated with a PAD;
the manner, means and timing of the PAD;
whether the applicant is aware that the request may be withdrawn at any time; and
whether the applicant is aware that if the authorization is granted, the decision to use or not use the authorization is entirely the applicant’s decision to make.
The applicant’s attending physician, which must address, among other things, the following:
the applicant’s grievous medical condition;
the applicant’s suffering as a result of the medical condition;
whether the applicant was fully informed about his or her medical condition, treatment options and the associated risks, including those associated with PAD;
the applicant’s mental capacity;
whether the applicant is or will be physically able of ending his or her life;
whether the applicant consents with coercion, undue influence or ambivalence; and
whether the applicant is aware that he or she may withdraw the request at any time.
The applicant’s consulting psychiatrist attesting that the applicant, among other things:
has a grievous and irremediable medical condition (illness, disease, or disability) that causes the applicant to suffer;
has the mental capacity to make a clear, free, and informed decision about a PAD; and
consents without coercion, undue influence, or ambivalence to a PAD.
The physician who will be authorized to assist death, who could be the applicant’s attending physician or another physician, addressing:
the manner, means and timing of the PAD;
the physician’s willingness to assist the applicant in dying if PAD is authorized by court order;
whether the physician believes that providing assistance would be clearly consistent with the applicant’s wishes; and
whether the physician understands that the decision to use or not use the authorization is entirely the applicant’s decision to make.
While reference is made to the types of evidence discussed in Carter, it is noted in the Practice Advisory that the onus ultimately rests with the applicant to confirm and meet the evidentiary requirements set out in Carter.
Interestingly, the College of Physicians and Surgeons of Ontario’s Interim Guidance on Physician-Assisted Death policy and the Canadian Medical Association’s Principles-based Recommendations for a Canadian Approach to Assisted Dying only require that the second opinion be from another physician, not a psychiatrist. However, the exemption that Justice Lynn Smith of the British Columbia Supreme Court carved out for Gloria Taylor in the Carter case did include a requirement that Ms. Taylor’s attending physician and a consulting psychiatrist each attest that she was competent and that her request for physician-assisted death was voluntary.
Disposition of the Application
Following the hearing of the application, the Superior Judge may:
Grant the relief sought (i.e. authorize the PAD);
Dismiss the application;
Adjourn the application for further evidence to be filed; or
Make such other order as is just.
For advice or assistance with court applications respecting PAD, please contact us.
