The right to determine what should be done with one's own body is a fundamental right in our society. In Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of Canada confirmed that, for a competent adult suffering from a grievous and irremediable medical condition, this right includes a right to die with assistance from a physician.
What is presently unclear, and what is of particular import to those who seek access to physician-assisted dying, is:
- which criteria must be met to access physician-assisted
- who will assess whether those criteria have been met;
- who will administer end-of-life drugs;
- what support services will be available for patients and their
families at the end-of-life; and
- whether life insurance claims will be paid for deaths resulting from physician-assisted dying.
On February 25, 2016, the federal government's Special Joint Committee on Physician-Assisted Dying (the "Joint Committee") released a report with recommendations about how the federal government should respond to the Carter decision. The Joint Committee's recommendations with respect to the issues outlined above can be summarized as follows:
The Joint Committee recommended that physician-assisted dying be available to any person who satisfies the following criteria:
- Medical condition - The person must have a
"grievous and irremediable medical condition" that causes
enduring suffering that is intolerable to the individual in the
circumstances of his or her condition. As "grievous and
irremediable medical condition" will not be defined, such a
condition can be physical condition, a mental condition or some
combination of both. Ultimately, whether a specific condition
constitutes a "grievous and irremediable medical
condition" will depend, at least in part, on the subjective
assessment of the assessing physicians. Notably, the Joint
Committee specifically rejected the imposition of a requirement
that the condition be "terminal".
- Age and capacity - The person must be 18 years
of age and must be capable of providing informed consent to
physician-assisted dying. Capacity to provide informed consent
should be assessed using existing medical practices, emphasizing
the need to pay particular attention to vulnerabilities in
end-of-life circumstances. The Joint Committee recommended that the
federal government immediately commit to studying whether
"mature minors" (i.e. persons under 18 years of age who
are capable of providing informed consent to health care decisions)
should be permitted to access physician-assisted dying.
- Clear consent - The person must clearly
consent to the termination of their life. Where possible, a request
for physician-assisted dying should be made in writing and should
be witnessed by two people who have no conflict of interest.
- Advance consent - The Joint Committee
recommended that advance requests for physician-assisted dying be
allowed but only after a person has been diagnosed with a
condition that is reasonably likely to cause loss of competence or
after a diagnosis of a grievous or irremediable condition but
before the suffering becomes intolerable. In effect, this draws a
legal distinction between the withdrawal of life-saving medical
services (which can be consented to before a person becomes ill)
and the provision of life-ending medical services (which can only
be consented to after a person becomes ill).
- Waiting period - The Joint Committee
recommended that the federal government work with the provinces and
territories and their medical regulatory bodies to ensure that any
period of reflection for physician-assisted dying that is contained
in legislation is flexible and based, in part, on the rapidity of
progression and nature of the patient's medical condition as
determined by the patient's attending physician.
- Advance consent - The Joint Committee recommended that advance requests for physician-assisted dying be allowed but only after a person has been diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable. In effect, this draws a legal distinction between the withdrawal of life-saving medical services (which can be consented to before a person becomes ill) and the provision of life-ending medical services (which can only be consented to after a person becomes ill).
- Eligibility for publicly-funded health care services - The person must be eligible for publicly-funded health care services in Canada (i.e. no medical tourists allowed).
Assessment of eligibility criteria
The Joint Committee recommended that a request for physician-assisted dying only be carried out if two physicians who are independent of one another have determined that the person meets the eligibility criteria for physician-assisted dying. While the Joint Committee did not clarify this point, "independent" likely means that, at a minimum, the two assessing physicians cannot be in the same practice group, as recommended by the College of Physicians and Surgeons of British Columbia in its Interim Guidelines on Physician-Assisted Dying. It remains unclear whether this requirement will act as a barrier to access in smaller communities, which may have fewer physicians willing to provide physician-assisted dying.
Administration of end-of-life drugs
The Joint Committee recommended that physicians, nurse practitioners, and registered nurses working under the direction of a physician, be permitted to administer end-of-life drugs. It also recommended that pharmacists and other health care practitioners who provide services relating to physician-assisted dying be exempted from the criminal prohibition against aiding or abetting a person to commit suicide. The Joint Committee did not make any recommendation with respect to whether patients should be permitted to self-administer end of life drugs. In its report, the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying recommended permitting self-administration. However, in our view, that recommendation likely warrants further consideration, particularly in light of the risk that complications and adverse events may occur without a health care professional present at the end of life.
End-of-life support services
The Joint Committee noted the need for improved supports and services to accompany the provision of physician-assisted dying, particularly for individuals with psychological conditions and for Indigenous patients. To this end, the Joint Committee recommended that the federal government:
- support the pan-Canadian mental health strategy, Changing Directions, Changing Lives, developed
by the Mental Health Commission of Canada and work
with the provinces, territories and civil society to ensure that
appropriate mental health supports and services are in place for
individuals requesting physician-assisted dying;
- work with the provinces, territories and civil society
organizations to develop a pan-Canadian strategy to improve the
quality of care and services received by individuals living with
dementia, as well as their families; and
- work with the provinces and territories, and their medical regulatory bodies, to ensure that culturally and spiritually appropriate end-of-life care services, including palliative care, are available to Indigenous patients.
The Joint Committee stated that physician-assisted dying should not affect life insurance. We agree. Life insurance payments can be critically important to beneficiaries after a patient has died. Provinces and territories should ensure that beneficiaries do not have life insurance claims rejected solely on the grounds of the benefactor receiving physician-assisted dying.
At present, it's not clear whether federal and provincial regulators will act on the Joint Committee's recommendations. At a minimum, regulators should carefully consider the recommendations, which were based on oral testimony and written submissions provided by a wide variety of Canadians, with different views on physician-assisted dying.
This post concludes our four part series on physician-assisted dying. However, we will continue to monitor this important issue and update you as the law in this area develops.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.