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Legalization of Medical Assistance in Dying in Canada

The following is a guest post by Cynthia Chen, a foreign law intern currently working with Tariq Ahmad on research related to the laws of Canada at the Law Library of Congress.

Introduction

The Canadian Charter of Rights and Freedoms guarantees the right of every person to life, liberty, and security of the person.  Though the right to life is a fundamental right, the question arises as to whether a patient suffering intolerably from an incurable illness should have the right to end his or her suffering by dying as a result of euthanasia (painless killing) or physician-assisted suicide.

The death-bed of Wesley / engraved by John Sartain (1808-1897), Library of Congress Prints and Photographs Division, //cdn.loc.gov/service/pnp/pga/02600/02641r.jpg

The death-bed of Wesley / engraved by John Sartain (1808-1897), Library of Congress Prints and Photographs Division, //cdn.loc.gov/service/pnp/pga/02600/02641r.jpg

Two previous In Custodia Legis posts analyzed the topic of medical assistance in dying under different legal systems. Ruth blogged about Euthanasia under Israeli Law, and Tariq blogged about Physician-Assisted Suicide in Canada. In his post Tariq discussed the background and findings of Carter v. Canada, a landmark decision that legalized medical assistance for dying in Canada. The decision was issued by the Supreme Court of Canada on February 6, 2015.

This blog post provides a general overview of recently passed legislation in Canada that legalizes and regulates medical assistance in dying.

Background

In Carter v Canada the Supreme Court of Canada unanimously struck down the absolute prohibition on physician-assisted suicide and euthanasia in Canada. Prior to this decision, actively assisting someone in the taking of their own life was an indictable offense under section 241 (b) of the Criminal Code. Furthermore, section 14 of the Criminal Code stated that no person may consent to having death inflicted upon them.

In its decision, Canada’s highest court invalidated these sections as unconstitutional, but only to

the extent that they prohibit physician-assisted death for a competent adult person who

(1) clearly consents to the termination of life and (2) 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” (Carter v Canada, ¶ 147).

In order to allow the legislative and executive branches to enact new legislation and policies to govern medical assistance in dying, the Supreme Court had initially suspended the declaration of invalidity for a period of 12 months. Subsequently, the Supreme Court of Canada granted the Attorney General an extension of an additional four months, setting June 6, 2016, as the date that the invalidation came into effect.  On June 17, 2016, legislation on the federal level was finally passed, establishing a framework for medical assistance in dying across the country.

In Canada, the matter of physician-assisted suicide and euthanasia is of shared jurisdiction between the provincial and the federal legislatures. While the federal parliament has the authority to legislate in criminal matters under paragraph 91 (27) of the Constitutional Act of 1867, paragraphs 92 (7), (13) and (27) of the Constitution authorize the provincial parliaments to legislate in matters concerning health. As such, both the federal and the provincial levels of government may validly legislate on medical assistance in dying, depending on the circumstances and the focus of the legislation (Carter 2015, ¶ 53).

Federal legislation

On the federal level, legislation concerning medical assistance in dying was passed on June 17, 2016. After a very heated debate between the House of Commons and the Senate, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), received the royal assent and came into force. This new federal law amends the Criminal Code and establishes the conditions and the procedure under which one may receive medical assistance in dying. The legislation authorizes and governs active euthanasia as well as physician-assisted suicide. However, it appears that the scope of this law is much narrower than the ruling of the Supreme Court in Carter v Canada.

  • Eligibility Criteria and Other Conditions

In order to prevent suicide tourism, the federal government has established that only those who are eligible for health services funded by a government in Canada may receive medical assistance in dying. Other eligibility requirements include being 18 years old or older and being mentally competent. Additionally, one must have made a voluntary request free of external pressure and given informed consent to receive medical assistance in dying. This implies that individuals requesting such assistance must have received “information of the means that are available to relieve their suffering, including palliative care”. Lastly, in order to qualify for medical assistance in dying, one must have a grievous and irremediable medical condition (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) § 2, adding § 241.2 (1) to the Criminal Code).

According to the law, a person can only be considered to have a grievous and irremediable medical condition if he or she has a serious and incurable illness, disease, or disability and if he or she is in an advanced state of irreversible decline in capability. The illness, disease, or disability or that state of decline has to cause enduring physical or psychological suffering that is intolerable to the person and that cannot be relieved under conditions that the person considers acceptable. Finally, their natural death has to become reasonably foreseeable, taking into account all of their medical circumstances. A prognosis does not necessarily have to be made as to the specific length of time that they have remaining (Id. § 2, adding §241.2 (2) to the Criminal Code).

  • Procedure & Safeguards

The individual requesting medical assistance in dying services must sign a written request. In the case that they are incapable of signing, another person may do it in their place (Id. § 2, adding §§ 241.2 (3) and 241.2 (4) to the Criminal Code). The written request must be signed by two independent witnesses who will not knowingly benefit in any way, financially or other, from the death of the individual (Id. § 2, adding § 241.2 (5) to the Criminal Code). There is a waiting period of 10 days after the written request is made before medical assistance for dying can be provided (Id. § 2, adding § 241.2 (3) to the Criminal Code). The person requesting medical assistance in dying must be informed of his or her right to withdraw consent at any time. In the case that the individual has difficulty communicating, the practitioners providing the assistance must take all of the necessary measures in order to ensure that the individual understands the information provided and can communicate his or her decision. (Id.).

Only independent medical practitioners or independent nurse practitioners who are not related to the individual in a way that would affect their objectivity may provide medical assistance in dying. (Id. § 2, adding §§ 241.2 (3) and 241.2 (6) to the Criminal Code). Therefore, those who know or who believe that they may benefit in a material way from the death of the requester, may not provide the services. (Id.). Before providing services for medical assistance in dying, the physician or the nurse practitioner must determine that the individual suffers from a grievous and irremediable medical condition and that the individual fulfills all of the conditions of eligibility for physician-assisted suicide or euthanasia that are established by the law. (Id.). This must be confirmed in writing by another medical practitioner or nurse practitioner and there must be no relationship of supervision or mentorship between the practitioner providing the services and the one confirming the eligibility. (Id.). The relationship between the two practitioners must not affect the objectivity of their opinions. (Id.). Pharmacists, health care providers, and other people of the individual’s choosing may help the physicians and the nurse practitioners in providing medical assistance in dying. (Id. summary).

  • Criminal liability

As long as they comply with the safeguards set out in the Criminal Code, medical practitioners and nurse practitioners, as well as the people who assist them, would not be criminally liable for providing medical assistance in dying to an eligible patient. However, if the practitioner provides medical assistance in dying with the knowledge that the conditions set out in the law are not all fulfilled and the safeguards are not all followed, they will face criminal liability. (Id. §2, adding § 241.3 to the Criminal Code). In the case that a practitioner mistakenly or wrongly determines that all the conditions are fulfilled and their belief was reasonable and rooted in good faith, they will not be held criminally liable. Such a mistake must be one that the average practitioner could have reasonably made. The practitioners providing medical assistance in dying must also ensure that they abide by the laws, rules, and policies that are established by the provinces and the territories in which they practice.

  • Additional Issues

According to the federal law, in order to receive medical assistance in dying, the medical practitioners must be of the opinion that the patient’s natural death is “reasonably foreseeable” (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) § 2, adding §241.2 (2) d). However, the law is extremely imprecise and does not offer a time-frame nor any guidelines as to what constitutes a “reasonably foreseeable” death. Furthermore, the individual requesting medical assistance in dying must also be “in an advanced state of irreversible decline in capability”. These cumulative conditions are much narrower than the criteria set out in Carter and may only allow those in advanced stages of a terminal illness to receive medical assistance in dying.

A suit challenging the constitutionality of the narrow criteria established by the federal law was filed on June 27, 2016 by a woman suffering from Spinal Muscular Atrophy along with the British Columbia Civil Liberties. This lawsuit is based on the argument that the law contradicts the Carter decision as it prevents those who are suffering with no immediate end in sight from receiving medical assistance in dying.

  • Monitoring and Follow-up

Regulations regarding the monitoring of physician-assisted suicide in Canada have yet to be established. A monitoring system is essential as it would allow for the generation of high-quality data concerning medical assistance in dying in Canada. This is necessary for the evaluation and the eventual improvement of the legal framework surrounding medical assistance in dying. The federal government and the provincial and territorial governments will work together to develop regulations for a monitoring system. Additionally, they will work together to establish an interim system until a permanent process is in place. (Id.).

In five years’ time, the federal government will hold a parliamentary review of the newly adopted law in order to address the issues of mature minors, patients suffering solely from mental illness, as well as advance directives. (An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) § 9 (1), adding § 9.1 to the Canadian Forces Members and Veterans Re-establishment and Compensation Act).

Provinces and Territories

Provinces and territories also have the power to legislate and regulate on physician-assisted suicide and euthanasia, as long as they do not enter in conflict with the federal law. While the majority of provinces and territories have adopted guidelines and policies regarding medical assistance in dying, Quebec is the only province to have adopted a law governing medical assistance in dying.

In fact, the province of Quebec was the first jurisdiction in Canada to have legislated on the matter of medical assistance in dying, even before the Carter decision was rendered. Quebec had adopted its Act Respecting End-of-Life Care in June 2014. Since this Law was adopted prior to the Carter decision and thus prior to the invalidation of sections 14 and 7 of the Criminal Code, the provisions concerning euthanasia were initially declared to be of no force or effect. With the rendering of the Carter decision, the law came into effect in the province of Quebec on December 10, 2015, and was declared constitutional. Contrary to the federal law, however, Quebec’s Act Respecting End-of-Life Care does not permit the patient to administer the lethal medicine themselves through physician-assisted suicide. Quebec’s law only permits euthanasia.

Furthermore, while the federal law requires that one’s natural death be “reasonably foreseeable”, Quebec’s law is broader and allows patients who are suffering from an incurable illness and at the “end of life” to request euthanasia. In response to the adoption of the new federal law, Quebec will likely need to modify its Act Respecting End-of-Life Care in order to harmonize it with the federal legislation.

 

 

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