The Liberal government introduced a bill on Thursday that would legalize medical assistance in dying. The Supreme Court ruled in February, 2015, that a blanket ban on assisted death was unconstitutional, saying the sanctity of life includes “the passage into death.” The bill needs to be debated and passed in Parliament. Here are some things to know about this watershed moment in Canadian history.
What parameters did the Supreme Court set out on assisted death?
A competent adult, clearly consenting, who has “a grievous and irremediable 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 government went along with most of that, but insisted the patient must be on the way to a ‘reasonably foreseeable’ death. Is that constitutional – will the Supreme Court accept it?
Highly questionable. The central figure before the Supreme Court was Kay Carter, 89, who had spinal stenosis, a degenerative condition, but was not dying. Joseph Arvay, a Vancouver lawyer who represented Ms. Carter (who obtained an assisted death in Switzerland before the case was concluded) and her family, said it is inconsistent with the evidence on which the court based its ruling. “There are people with illnesses such as multiple sclerosis and Parkinson’s and Huntington’s and even ALS [amyotrophic lateral sclerosis] who can live a long time and whose death may not be reasonably foreseeable.” Jocelyn Downie, a professor of law and medicine at Dalhousie University, agrees. “The court established: ‘Here is the category of people you cannot prohibit from having access.’” But some constitutional specialists take another view. Robert Leckey, who teaches law at McGill University, said on first look it appears at odds with the court ruling. But the court struck down the ban because it was absolute; it might be willing to accept “reasonable limits,” he said. “It also said that Parliament needs some leeway in legislating about this,” said Sébastien Grammond, a University of Ottawa law professor.
Quebec’s law is even narrower – people must have a terminal condition. What happens to that law now?
It can stand, barring a legal challenge. These are health laws and fall under a shared provincial-federal jurisdiction. Ottawa says the provinces are free to add on to the federal rules.
What happens to the mentally ill, and those facing the onset of dementia who want to give advance consent? Didn’t a parliamentary committee recommend they be eligible – and that government address the issue of mature minors within three years?
It’s fuzzier than it appears. While the bill contains nothing that would allow assisted death for those who are mentally ill but have no physical sickness, Prof. Downie argues that nothing explicitly precludes it. Death might be foreseeable, she said, for people with anorexia nervosa, for instance. The bill limits access to people 18 and over. The Supreme Court said “competent adults,” and that is not the same as saying the age of majority, she says. So there could be a constitutional challenge on that aspect of the bill some day. The bill provides no mechanism for advance consent.
Did the government say whether it would require Catholic hospitals to provide medically assisted dying?
An official said at a briefing that Ottawa is leaving that to the provinces. The Coalition for HealthCARE and Conscience, representing 110 facilities and 5,000 doctors, and including the Catholic Archdiocese of Toronto and the Catholic Health Alliance of Canada, criticized the bill for not protecting conscience rights of health-care workers and hospitals. Gerald Chipeur, a Calgary lawyer, said he sees no need for conflict with faith-based health-care institutions. Ambulances move patients between institutions daily, he said, and could do so for a request from within a Catholic institution for an assisted death. “Just let every person act according to their conscience and no one will be denied the opportunity to have what they want.”
How will patients know where to go for help if their doctor does not want to be involved?
The government says it will work with the provinces to create a system to connect patients with willing medical practitioners. (As a side benefit, the creation of this system would “support the personal convictions of health-care providers who chose not to participate,” a government backgrounder says.)
What is the process for someone seeking an assisted death?
Patients make a written request (or have someone do it for them if they are too ill to write). Two independent witnesses sign it. And two independent physicians or nurse practitioners evaluate the request.
What would ensure that vulnerable people are not pressured into acceptance, and can change their minds?
Patients would be given at least 15 days to reflect, unless death or loss of their capacity to consent is imminent. And they would need to consent again at the time of the procedure. Also, no one could be an independent witness if they are a beneficiary of the patient’s will, or the operator of a health-care facility in which the patient is living or being treated, or if they are directly involved in providing care to the person making the request.
What exactly does medical assistance in a death mean?
Medical practitioners may directly administer a substance to a patient intended to end their life, or give the substance to patients to use themselves.
What do doctors say about it?
About 30 per cent of doctors have said in surveys they would be willing to participate, a number far greater than in either the Netherlands or Oregon, both of which have legalized medical assistance in dying, according to Jeff Blackmer, vice-president of medical professionalism for the Canadian Medical Association. He believes the new bill reflects its advice that the government go slow. “The CMA urged a measured and cautionary approach in introducing a very novel and complex intervention that physicians of Canada have no experience with. It’s impossible for me to overstate how big a change it is. It represents a completely different expectation for physicians when it comes to conversations around death and dying. It introduces almost an infinite number of complexities into those considerations.”
Aren’t cases still before the courts? What happens to them?
Until the law takes effect – likely several weeks away – Canadians may continue applying to Superior Court judges for permission for an assisted death. After June 6, if the law is not in place, the Criminal Code ban on assisted suicide will be deemed no longer to exist.
The government has about five weeks to debate, study and pass the bill through the House of Commons and Senate before the Supreme Court’s June 6 deadline. Liberal House Leader Dominic LeBlanc believes it can be done – with co-operation from the opposition. “We have made, I think, a considerable offer with my opposition counterparts about extending hours for the debate, about asking the House of Commons to sit later into the evenings,” he said on Thursday. Conservative MP Michael Cooper said his caucus also wants a bill passed before the deadline to prevent Canada ending up with no law at all, which he called “an unacceptable situation.” He said he has not decided whether to support the bill. And NDP MP Murray Rankin said he hopes the justice committee has time to study and propose amendments. The three main parties say they will allow their MPs a free vote, although the Liberal cabinet will support the bill.
SEAN FINE – JUSTICE WRITER
The Globe and Mail
Published Thursday, Apr. 14, 2016 8:56PM EDT
Last updated Thursday, Apr. 14, 2016 9:17PM EDT