From Watershed Decision to Watershed Law: Government Proposes Physician-Assisted Dying Law in Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)
April 15, 2016
By Ryan Baxter, Lawyer at McInnes Cooper,
Marjorie Hickey, QC, Partner at McInnes Cooper,
Jane O'Neill, QC, Litigation Lawyer | Partner at McInnes Cooper
On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo medical-assisted dying must meet. The result of a unanimous landmark 2015 Supreme Court of Canada decision in Carter v. Canada (Attorney General) striking down the legal ban on physician-assisted dying, Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) is the government’s first cut at legislation defining medical assistance in dying, the eligibility criteria to access it and the safeguards around it. The Bill doesn’t, however, explicitly deal with several issues, including access to medical-assisted dying by “mature minors” or people suffering from mental illness and whether people can put in place advance directives respecting access to medically assisted death. The government has committed to appointing an independent body to evaluate some of these outstanding issues – but only after it meets the June 6, 2016 deadline to have a new law on physician-assisted dying in place. And just as the Supreme Court’s decision striking down the criminalization of physician-assisted dying had a broad ripple effect, so too will Bill C-14 and any subsequent amendments to it; members of the healthcare, healthcare planning, estate planning, life insurance, disability insurance and health insurance professions will be carefully assessing the impact of Bill C-14 and watching closely for further clarification.
Here are the key elements of Bill C-14.
“Medical assistance in dying”. The Bill defines “medical assistance in dying”, the new terminology to describe physician-assisted dying, as:
- The administration of a substance by a medical practitioner or authorized nurse practitioner that causes the person’s death.
- The prescription or provision of substance by medical practitioner or authorized nurse practitioner that the person self-administers to cause her death.
5 Eligibility criteria. An individual can only access medical assistance in dying if she meets all of these five criteria:
- She is eligible for health services funded by a government in Canada. The Bill effectively excludes individuals not funded under Canada’s health care system; thus citizens from other countries can’t travel to Canada for the procedure.
- She is at least 18 years of age and capable of making decisions with respect to individual health. Significantly, the Bill excludes individuals under the age of 18, precluding “mature minors” from accessing medical assistance in dying.
- She has a “grievous and irremediable medical condition” (as the Bill defines it).
- She makes a voluntary request.
- She gives informed consent.
“Grievous and irremediable medical condition”. The Bill defines an individual as having a grievous and irremediable medical condition – one of the mandatory criteria to access medical assistance in dying – if she meets all of the following four conditions:
- She has a serious and incurable illness, disease or disability.
- She is in an advanced state of irreversible decline in capacity.
- The medical condition causes enduring physical or psychological suffering that is intolerable to her.
- Natural death is reasonably foreseeable.
Safeguards. To protect patients, the Bill includes five safeguards before a medical practitioner or nurse practitioner provides a patient with medical assistance in dying:
- Two written independent medical opinions confirming the patient meets all of the eligibility criteria.
- A request from the patient in writing (or by proxy if the patient can’t write) signed before two independent witnesses.
- The patient must be informed of her right to withdraw the request at any time.
- A 15-day waiting period between the date the request is written and the date on which the medical assistance in dying is provided (unless death or loss of capacity is imminent); this reflection period is intended to prevent patients from making a rash decision after receiving a terminal diagnosis.
- Express consent must be confirmed immediately before medical assistance in dying is provided.
Criminal liability exemptions. The Bill removes the possibility of prosecuting any of the following people for assisting an individual to die in accordance with it:
- Nurse practitioner.
- A person who aids a medical practitioner or nurse practitioner.
- Another person who aids a patient to self-administer the relevant substance.
However, a medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply with any of the safeguards is guilty of an offence and is liable to imprisonment.
Federal benefits. No loss of federal pensions and benefits would result from medical assistance in dying.
Areas for future review. The government has committed to appointing an independent body to evaluate some outstanding issues not explicitly dealt with in the Bill, including whether the legislation could cover mature minors, individuals who only suffer from mental illnesses and the use of advance directives that would grant individuals access to medically assisted death should they not be competent to give consent at a later time. Under the current formulation of the Bill, consent must be confirmed immediately before medical assistance in dying is provided, which effectively eliminates the use of advance directives or any form of advance requests.
June 6, 2016 deadline. The Bill will go to committee for further study then to the House of Commons for a vote; the Senate must approve it before it becomes law. The Supreme Court of Canada has given government until June 6, 2016 to have the new law in effect. In the meantime, an individual wishing to access medical assistance in dying can make an individual application to a court in her respective province to seek approval for such assistance pursuant to the Supreme Court’s January 2016 decision in Carter v. Canada (Attorney General).
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Health Law, Estates & Trusts or Insurance Teams to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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