This article was first published on the Ontario Bar Association’s website. It is an update to an earlier article which was first published on Rabble.ca.

February 6, 2016 marked one year since the Supreme Court released its ruling in Carter v. Canada, 2015 SCC 5. That decision struck down the constitutionality of Sections 14 and 241(b) of the Criminal Code, which prohibit assisted suicide, on the basis that they infringed on the individual’s right to life, liberty and security, and the right to equal protection under the law, in a manner that could not be justified under Section 1 of the Charter of Rights and Freedoms. Carter was a departure from the Court’s earlier ruling in Rodriguez, in which the provisions prohibiting assisted suicide were found to violate the individuals’ right to life, liberty and security, but in a manner that was justified under Section 1 of the Charter.

The Supreme Court initially suspended its declaration of invalidity of these provisions of the Criminal Code, granting the government 12 months in which to craft new legislation. However, on January 6, 2016, the Court granted a further 4-month extension, on a motion by the Attorney General. In its reasons, the Court cited the dissolution of Parliament during the election months as grounds for granting the relief. A majority of the Court agreed that the exemption would not apply to Quebec, which is the only province that has already enacted legislation governing end of life assistance.

The Court also confirmed that individuals seeking physician assistance in dying would be able to apply for a court order for relief during the interim months. A Practice Advisory for the “Judicial Authorization of Physician Assisted Death” states that the patient’s application would be heard not less than 15 days before the application is commenced, but no more than 30 days later. As part of the application, the patient must present evidence by the attending physician, the consulting psychiatrist, and the physician proposed to assist death in support of the application.

Consultation Mechanisms: The Panel Report and Committee Review

In July 2015, prior to the election, the government commissioned an external panel to consult with the interveners in Carter, speak with medical authorities, and conduct public consultations with the goal of providing recommendations to the legislature on the form of legislation. In November 2015, the Liberal Government amended the panel’s mandate from providing recommendations to simply delivering its “key findings.”

The resulting 132-page Report, which was released in January, provides a comprehensive overview of Carter and the decisions preceding it. The panel requested meetings with each of the 26 interveners in the Carter decision and with the Carter claimants themselves. The panel further spoke with key medical researchers, experts in bioethics, law, and medicine, and lawyers specializing in health law and palliative care in Canada and other jurisdictions where assisted suicide is legal. In addition, it reviewed written submissions from individuals and organizations across the country and analyzed the approximately 15,000 responses it received in response to its “Issue Book,” in which participants were provided with background reading, and were asked to provide their opinions on various legal and ethical dilemmas that might arise in the context of physician-assisted suicide based on fictional scenarios.

In early 2016, a joint senate committee was struck to review the report, hear from medical and legal experts, and to develop recommendations for the legislature. The committee, which is composed of senators and eleven MPs from multiple parties, has until February 26, 2016 to deliver its recommendations.

Crafting Legislation: A “Double Blancing Act”

Creating legislation to regulate physician-assisted suicide will engage a double balancing act: first, between the federal and provincial governments, both of which have power over matters of health and healthcare; and second, promoting individual access to physician assisted suicide while ensuring vulnerable members of the population are adequately protected.

a) Balancing Federal and Provincial Powers

The division of powers as between federal and provincial legislatures to make laws around health and healthcare is far from clear. While the Constitution assigns provinces responsibility over ‘hospitals’, the authority of the federal government derives from its power over taxation, spending, public property, criminal law, and more broadly, “making laws for peace, order and good governance”.

In a recent statement, a deputy minister in the Department of Health underscored the importance of “a reasonable degree of consistency across provinces and territories [to] support the underlying values of the Canada Health Act” such that ” all Canadians […] have comparable access to needed healthcare services without barriers associated with financial means or geography.” Constitutional law expert Peter Hogg supported this view in his submissions before the joint committee, enjoining the Canadian government to draft “all-encompassing” legislation in the event that certain provinces do not legislate the issue of physician assisted suicide.

By contrast, a Quebec-based expert on medical law has cautioned the joint committee against passing a law without the consent of the provinces. In his submissions, Jean-Pierre Ménard proposed that the government amend the Criminal Code in compliance with the deadline set by the Supreme Court, and then consider a “second legislative process” for the provinces.

b) Balancing Access with Protection

A further balancing act lies in ensuring access to physician-assisted suicide while protecting vulnerable, or marginalized persons. Much hinges on the interpretation of key terms: who is a “competent adult”? What does it mean to “clearly consent”? What is captured by the description of a “grievous and irremediable medical condition”?

Unsurprisingly, stakeholders have expressed highly variable, and sometimes opposing views of what constitutes a “grievous and irremediable medical conditions,” how to assess competence, and what is required for a patient to consent.

In its stakeholder report to the province of Ontario, the British Columbia Civil Liberties Association (the “BCCLA“) suggests that Carter does not require that the individual be competent at the time that consent is provided, and states that physicians should be allowed to rely on “advance directives” provided by the patient. The BCCLA further suggests that “grievous and irremediable” is sufficiently defined in the Criminal Code, and any further qualifications of medical conditions will cause complication, exclusion from access, and costly legal challenges. Finally, the BCCLA opposes the mandatory implementation of a “cooling off” period following the individual’s first request for assistance.

By contrast, the Canadian Medical Association, in its draft report on physician-assisted suicide, defines consent as a “an evolving process requiring physicians to communicate continuously with the patient,” requiring that patients be mentally capable of making a decision at the time of the request. The CMA does not comment on whether the legislation should restrict the definition of “grievous and irremediable” conditions, but sets out a process map which integrates “cooling off” periods following the patient’s oral requests for physician-assisted suicide.

The College of Physicians and Surgeons of Ontario has published “Interim Guidelines” to be applied by doctors in Ontario to patients who qualify for publicly funded healthcare, and are seeking physician assisted suicide. Those guidelines confirm that physician assisted suicide is only available to adults who understand and appreciate the certainty of death, and have a clear intention to end their lives after due consideration. Part IV of the Guidelines sets out the following process map: a first request by the patient; a 15-day waiting period; a second (formal) request by the patient for assistance in the termination of life witnessed by two persons who can confirm that the individual is capable, acting voluntarily, and free from coercion; and finally, a second opinion by a consulting physician on the patient’s capacity.

Notably, the Guidelines prohibit physicians from accepting advance directives, but allow for self-administration of a fatal dose by the patient. They also permit “conscientious objections” to physician-assisted suicide, provided that the objecting physician provides a referral to another healthcare provider.

Conclusion

It remains unclear how the government will resolve the competing interests at play in the crafting of this legislation, and the extent to which the individual provinces will be able to enact their own legislation. It is likely that the task of defining key terms (i.e. consent and eligibility) will form part of the federal government’s legislative mandate– thereby ensuring some level of consistency across the country– while prescribing the actual process will fall to the provinces. At the very least, the expedited timeline for recommendations by the joint committee suggests that this government, unlike its predecessor, intends to meet the deadline prescribed by the courts.

Filed in: Civil Rights

Tags: Canadian Charter of Rights and Freedoms, medical assistance in death, Supreme Court of Canada