In April 2017, the CBC reported that over 1,300 people in Canada have died with medical assistance since the Criminal Code was amended in 2016 to legalize medical assistance in dying ("MAID"). While this statistic points to the importance of MAID for many Canadians, the new legislation has not settled the ongoing debate concerning the right to die. Recent litigation on various fronts has highlighted continuing controversies, including questions about the role of medical professionals in MAID, limitations on who will have access to medically assisted dying, and ambiguity in the criteria for access.
The Current Law
On June 17, 2016, Parliament enacted Bill C-14, amending the Criminal Code to legalize MAID. Under the new legislation, MAID, which includes both assisted suicide and voluntary euthanasia, is legal if the criteria and procedural safeguards set out in s.242.2 of the Criminal Code are followed by the doctors or nurses involved.
Under S. 241.2(1) of the Criminal Code, a person may receive MAID if he or she:
- Is at least 18 years of age and capable of making decisions with respect to his or her health;
- Has requested MAID voluntarily and not as a result of external pressure or undue influence;
- Has provided informed consent to receive MAID, after having been informed of other options to alleviate suffering, including palliative care;
- Is eligible for publicly funded health care services in Canada; and
- Has a grievous and irremediable medical condition.
Under S. 241.2(2) of the Criminal Code, a person has a "grievous and irremediable medical condition" only if they meet all of the following criteria:
- they have a serious and incurable illness, disease or disability;
- they are in an advanced state of irreversible decline in capability;
- that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
- their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Recent Litigation and the Challenges Ahead
Recent litigation highlights key issues surrounding MAID, particularly concerning ambiguity in the criteria for MAID, the role of medical professionals, and the limitations on access to MAID.
In A.B. v. Canada (Attorney General) 2017 ONSC 3759, a doctor declined to provide MAID to a patient with advanced but not terminal osteoarthritis out of fear of criminal conviction, after learning that a prior doctor concluded her death was not "reasonably foreseeable." The patient applied for a declaration that her death was "reasonably foreseeable" and that she may receive MAID because she met all the criteria in the legislation.
In his decision, Justice Perell of the Ontario Superior Court of Justice provided guidance on interpreting the meaning of reasonable foreseeability. Stating that "natural death need not be imminent and that what is a reasonably foreseeable death is a person-specific medical question to be made without necessarily making, but not necessarily precluding, a prognosis of the remaining lifespan," Justice Perell confirmed that a terminal illness is not required to meet the criteria for MAID. Justice Perell also confirmed that physicians can and should rely on their professional judgement in determining whether a patient meets the criteria in s.242.2.
While A.B. v. Canada (Attorney General) suggests that the courts will defer to the professional judgement of doctors, S.241.2(2) remains difficult to interpret, particularly for medical professionals who may be more accustomed to clear clinical standards and definitions. Despite the court's assurance in A.B. v. Canada (Attorney General), it is likely that some medical professionals will continue to fear legal repercussions, particularly in controversial, ambiguous or emotionally fraught cases.
The role of medical professionals in providing access to MAID has been problematic not just on a practical level but also in cases where these professionals have conscientious or religious objections to MAID. In Christian Medical and Dental Society (CMDS) v. College of Physicians and Surgeons of Ontario (CPSO), groups representing over 4700 doctors in Canada are challenging Ontario's regulations which requires objecting physicians to make an "effective referral" defined as "positive action to ensure the patient is connected in a timely manner to another physician, health care provider, or agency who is non-objecting, accessible and available to the patient."
There is also continuing controversy on the question of who has access to MAID - the law does not allow consent in advance to MAID and does not allow MAID for minors or the mentally ill. In June 2016, Julia Lamb and the BC Civil Liberties Association initiated a Charter challenge relating to the requirement that a person be dying and in a state of advanced decline when requesting MAID. The inability to consent in advance is particularly problematic for individuals with degenerative conditions (e.g. Alzheimer's disease, dementia, ALS, or in Ms. Lamb's case, spinal muscular atrophy) who may not be able to request MAID when they truly need it.
In Carter v. Canada (A.G.), the Supreme Court of Canada unanimously ruled that the prohibition on medically assisted dying was both cruel and unconstitutional. The SCC gave Parliament approximately one year to create a new legislative framework for MAID. In the process that led to Bill C-24, a special committee of senators and MPs tabled a report recommending inter alia a two-stage legislative process to create the new law on MAID. The possibility of further legislative amendments after the initial urgency of responding to the Carter decision is welcome, given the likelihood that the law will otherwise be shaped through the courts.