Just over a year ago, Canada’s highest court unanimously invalidated provisions preventing physician-assisted death (“PAD”). The landmark decision Carter v. Canada, 2015 SCC 5 (“Carter”) gives Canadian adults, who are deemed mentally competent and suffering intolerably, the right to a doctor-assisted death. The decision allowed for a 12-month suspension of Criminal Code provisions related to PAD, time intended for parliament to craft federal legislation. On January 15, 2016, the Supreme Court of Canada granted a four-month extension of the suspension, introducing a new deadline of June 6, 2016. Of interest, Quebec implemented its own regime to address PAD in December 2015 and is exempt from the suspension.
In the interim period between January and June, the Supreme Court has granted exemptions for individuals who wish to exercise their right to PAD having met the legal criteria set out in Carter:
- The applicant must be a competent adult person;
- who clearly consents to the termination of life;
- has a grievous and irremediable medical condition; and
- is experiencing enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The Professions React
In British Columbia, the College of Physicians and Surgeons (the “CPSBC”) has released interim guidelines to establish a process for physicians to follow, pending the release of PAD legislation. Amongst these are:
- Physicians may make a personal choice to assess patients for and/or perform PAD;
- Physicians objecting to PAD on the basis of values and beliefs are required to provide an effective transfer of their patients by advising of alternate physicians;
- The process of engaging in PAD requires the opinion of two independent physicians;
- Physicians must be satisfied that the patient has repeatedly expressed a desire for PAD over a “reasonable period of time” (in most cases 15 days would be considered a “reasonable period”);
- Both physicians must be satisfied that the patient is mentally capable of making a free and informed decision, and capable of giving free and informed consent to PAD (consent cannot be given through an alternate or substitute decision maker); and
- Consent must be voluntary, and the patient must have a “clear and settled intention” to end his or her life after making an informed decision.
The College of Pharmacists of British Columbia recently notified members that they must first be authorized by court order to be able to dispense drugs as part of the PAD process in each individual case. The Canadian Pharmacists Association, recognizing the profound impact of Carter on the pharmacy profession, had earlier released a policy statement to provide guidance with respect to the development of legislation addressing PAD.
Similarly, the Association of Registered Nurses of British Columbia released a position statement encouraging nurses to seek the advice of the College of Nurses of British Columbia or legal counsel prior to taking any action with respect to a PAD case.
The first PAD in Quebec took place in January 2016 and since then there have been approximately 20 cases in that province. Outside of Quebec, applicants have been successful in obtaining exemptions to exercise their right to die in Ontario, Alberta, Manitoba and most recently in British Columbia.
The first application for PAD in British Columbia was heard on March 23, 2016. In the decision handed down on April 1, Supreme Court Chief Justice Hinkson defined a medical condition that is “grievous and irremediable” as one that is permanent, irreversible and that “greatly or enormously interferes with the quality of that person’s life and is in the range of critical, life-threatening or terminal.” Chief Justice Hinkson’s ruling exempts the family physician, registered nurse and pharmacist involved in the PAD process for the applicant from prosecution under the Criminal Code.
What is Next?
The Supreme Court of Canada in Carter called for the development of a “complex regulatory regime” in order to balance PAD with the protection of vulnerable persons from committing suicide at a time of weakness. The far-reaching consequences of the Carter decision are undeniable and will have a real impact upon the administration of healthcare both at the federal and provincial level.
Parliament will need to address a myriad of fundamental questions when crafting the federal legislation, among these are:
- What is the process for requesting PAD?
- How will legislation address methods of administrating PAD?
- Do family members and close others have a say?
- Should patients have to consult with a mental health expert prior to submitting a request for PAD?
- What is the role of healthcare professionals in the process?
- How are PAD requests determined? Should each request be submitted to a court, an independent panel of review, or should decisions be made by individual physicians?
Tags: Roshni Veerapen; Article; Physician-Assisted Death