On January 15, 2016, the Supreme Court of Canada granted a
four-month extension (to June 6, 2016) of the
suspension of its declaration in Carter v. Canada (Attorney General), 2015
SCC 5 ("Carter"),
that ss. 14 and 241(b) of the Criminal Code are of no
force and effect to the extent that they prohibit
physician-assisted death for competent adult persons that (1)
clearly consent to the termination of life, and (2) have a grievous
and irremediable medical condition that causes enduring and
intolerable suffering to the individual in the circumstances of his
or her condition. At the same time, during the four-month
extension, the Court granted an exemption from the prohibition on
physician-assisted death to persons that met the Carter
criteria so that they may apply to the superior court of their
jurisdiction for relief.
As set out in our previous post, Physician-Assisted Death
– An Update, the Supreme Court of
British Columbia recently issued a procedural checklist intended to
provide guidance to those intending to bring an exemption
application prior to June 6, 2016, including a summary of the
evidence required on such applications.
The first application for physician-assisted death was granted
by the Court of Queen's Bench of Alberta on February 29, 2016
in HS (Re), 2016 ABQB 121
("HS"), to a woman in the final stages
of amyotrophic lateral sclerosis (ALS). Although she was a resident
of Calgary, the physician assisted death was to be carried out on
private property in Vancouver by two local physicians. Of note is
that the approach taken by the Alberta Court of Queen's bench
in HS is more flexible than the procedure prescribed by the B.C.
The decision in HS provides further guidance to individuals
seeking to avail themselves of the exemption granted in the 2016
Carter decision, and establishes the following:
The Supreme Court's decision on January 15, 2016 granted
individuals that met the Carter criteria an automatic
exemption from the Criminal Code prohibition on
physician-assisted death. Accordingly, the court's role on
applications for relief prior to June 6, 2016 is simply to
determine whether a particular claimant is inside or outside the
group that benefits from that exemption.
An order granting authority to access physician-assisted death
need not require that competence be established both at the time of
the court application and at the time of death because an ongoing
determination of competence is part of and flows from the
physician-patient relationship. While "ongoing" consent
is required, a formal reassessment is unnecessary beyond the
obligations placed on physicians to obtain genuine, ongoing, and
informed consent to treatment.
Licensed pharmacists who prepare and provide medications are
necessarily protected under the term "physician-assisted
death", since what is contemplated in Carter is not
death by a doctor, but a physician-assisted process designed to
allow for a relatively painless and peaceful death through the use
of pharmaceuticals. Without pharmacists, physicians would be
incapable of providing medication and assisting in the manner
contemplated in Carter.
The Court in HS does not opine on whether the same protection
from criminal liability extends to nurses and other medical
practitioners that may provide assistance to physicians in this
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