A New Outlook on Physician-Assisted Death in Canada

In January, 2016, the Supreme Court of Canada granted a four-month extension of the suspension of its declaration in Carter v. Canada (Attorney General), 2015 SCC 5.  Carter is the decision that found ss. 14 and 241(b) of the Criminal Code to be 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.

The Federal Government has until June 6, 2016 to pass physician-assisted dying law.

The Court has also granted an exemption from the prohibition on physician-assisted death to persons that meet the Carter criteria so that they may apply to the superior court of their province for relief.

In Ontario, the Ontario Superior Court of Justice issued a Practice Advisory – Application for Judicial Authorization of Physician Assisted Death intended to provide guidance to those intending to bring an application prior to June 6, 2016, including a summary of the evidence required on such applications.  The Practice Advisory may be found at the following link:

http://www.ontariocourts.ca/scj/practice/application-judicial-authorization-carter/

The first application in Canada 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 to a woman in the final stages of amyotrophic lateral sclerosis (ALS). 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 second successful application for physician-assisted death was recently granted by the Ontario Superior Court of Justice on March 17, 2016 in A.B. v. Canada (Attorney General), 2016 ONSC 1912 to a man with advanced-stage aggressive lymphoma. In its decision, the Court referenced Ontario’s Practice Advisory, but held that the Practice Advisory was no more than suggestions, and that it was ultimately up to the application judge to make his or her own determination based on the Carter criteria.

Of note is the declaration sought by A.B. that the Coroner need not be notified of the circumstances of his death. Subsection 10(1)(f) of the Coroners Act requires every person who has reason to believe that a deceased person died from any cause other than disease to notify a coroner of the facts and circumstances relating to the death, while subsection (10)(1)(g) of the Coroners Act requires notification because the circumstance is one that requires investigation. A notification to the Coroner would lead to the Coroner issuing a warrant to seize A.B.’s body to conduct an autopsy, including the dissection of his corpse.

A.B. argued that the Coroner need not be notified because “his death would not be a death from a cause other than by disease, […] [nor would] his death be a circumstance that requires investigation.”[1] The Court agreed with A.B.’s submission. The Court found that “[t]he constitutional exemption [for physician-assisted death] is itself a product or consequence derivative of the illness, disease, or disability, and, thus, a person would not have reason to believe that the deceased person died from a cause other than the illness, disease, or disability.”[2] The Court further found that physician-assisted death was not a circumstance that would require an investigation because the information to be gathered by the investigation was already known and no useful public purpose would be served by gathering the information.

The recent decisions in HS and A.B. have paved the way for patients seeking relief from their intolerable suffering and clarified the court application process.  All of this could change on June 6, 2016.

[1]A.B. v. Canada (Attorney General), 2016 ONSC 1912 at para 61.

[2] Ibid at para 66.