Publication
No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)
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February 9, 2015
By Catherine D.A. Watson Coles, Partner at McInnes Cooper,
Jane O'Neill, Litigation Lawyer | Partner at McInnes Cooper,
Christa Bourque, Partner at McInnes Cooper
NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo medical-assisted dying must meet. Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) proposes legislation defining medical assistance in dying, the eligibility criteria to access it and the safeguards around it.
On February 6, 2015 the Supreme Court of Canada reached a watershed decision: the criminalization of physician-assisted dying in Canada violates the right to life, liberty and security of the person that the Canadian Charter of Rights and Freedoms guarantees. The healthcare profession, and physicians in particular, will be most directly impacted by the decision – but the ripple effect is wide, impacting healthcare and estate planning professionals and life, disability and health insurers.
The Canadian Criminal Code makes it a crime for a person to assist another to die in Canada. Ms. Taylor was diagnosed with a fatal disease. She sued the federal government of Canada, claiming this violates her right to life, liberty and security of the person that section 7 of the Charter guarantees.
In a watershed decision, all of the Supreme Court of Canada judges agreed: the Code is unconstitutional – and invalid – to the extent it prohibits physician‑assisted death for:
- a competent adult person
- who clearly consents to the termination of life and
- who has a grievous and irremediable (though the patient isn’t required to undergo treatments unacceptable to her) medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The decision will only take effect in 12 months to give the government time to come up with new or revised laws that comply with it; the current laws will remain in effect in the meantime. Both the federal government and each provincial government have the authority to enact laws over different aspects of physician-assisted dying. This could lead to different legal processes across Canada – and raises the issue of whether Canadians will be able to travel inter-provincially to end their lives, and the impact of this on medicare coverage for the service.
This decision will have a broad ripple effect:
Healthcare. Members of healthcare professions – and physicians in particular – are most directly impacted by this decision. The SCC was crystal clear: the decision only applies to “physician-assisted death” – and it doesn’t compel physicians to provide assistance in dying. The practical impact on physicians and other healthcare professionals will be fleshed out by physicians’ colleges and the federal and provincial governments, both of which the SCC confirmed have authority to enact laws respecting aspects of physician‑assisted dying. And it’s certain that new laws will and rules will follow in the decision’s wake. The SCC was also clear that a physician’s decision to participate in assisted dying is a matter of conscience and sometimes of religious belief – but cautioned that any laws and rules that flow must reconcile the Charter rights of both patients and physicians.
Healthcare Planning. Advance healthcare directives are legal in many provinces: documents where a competent person appoints a delegate to make healthcare decisions for her when she isn’t competent to make them herself, and usually providing an indication of her healthcare wishes. Many directives typically include an extensive “Refusal of Medical Treatment” section dealing with end of life decisions – but since physician-assisted was illegal, they didn’t deal with physician-assisted dying. Healthcare planning professionals – like lawyers – will need to figure out how to determine their clients’ wishes around physician-assisted suicide, and how to incorporate that into advance healthcare directives. One issue: an advance healthcare directive is only valid if the person giving it doesn’t have mental capacity; people will need to think hard about an advance healthcare directive authorizing a delegate to make a decision about physician-assisted dying on their behalf. Another issue: the SCC explicitly limited its decision to a “competent adult”. Legally, it’s not clear whether this means a delegate can’t even make such a decision for someone who doesn’t have mental capacity. Practically, it’s not clear whether a physician will act on a delegate’s request for physician-assisted dying when the patent is incompetent, even though she made the advance directive when she was. Physicians will likely be hesitant if there’s no new legislation giving a clear direction – and if there isn’t, another court case might be down the road.
Estate Planning. Estate and tax planning can be very precise when the main variable – time of death – is removed. For example, if spouses know the wife will die first, they can avoid probate by moving all assets out of her name before death – or they can move everything into her name so it all flows through the estate into a trust structure that will provide matrimonial protection for the survivor and certainty of eventual distribution amongst family members.
Life Insurance. Many life insurance policies typically exclude payment if the insured person commits suicide within a defined period of time after the policy takes effect. The question is whether this exclusion for suicide applies to physician-assisted dying. Life insurers will likely be reviewing – and possibly revising – their policies to make this clear.
Disability Insurance. Long-term disability insurance typically says that if an insured has a condition that causes her to be totally disabled from employment, the insurer will pay benefits until the insured person is 65. Many group disability insurance policies that employers offer employees end completely, or the benefits start to be reduced, when the insured person turns 65. The question is whether the SCC’s decision would motivate an insured person to accelerate her death by a short (or even long) time if she falls within the SCC’s parameters for physician-assisted death and is close to 65 – and how the disability insurance policy would deal with that.
Health Insurance. A person with health benefits could look to her health insurer to cover the costs of physician-assisted dying, either in her own province (if its medical laws don’t cover those costs), or in another province. Health insurers will also be reviewing and possibly revising their policies to make this coverage (or lack of it) clear.
Read the SCC’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 here.
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.
© McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.
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