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Commentary Regarding Federal Government’s Announced Assisted Dying Legislation

Today the Federal Government introduced legislation amending the Criminal Code to allow medical assistance in dying.  Here are one lawyer’s initial observations about the legislation

  1. The provision requiring that applicant be in “an advanced state of irreversible decline in capability” does not make sense if “capability” is in reference to mental condition, because at the time death is “administered” the legislation says patient must be capable.
  2. The legislation does not address the recognition in the Supreme Court’s Carter Judgment that the person may have a condition that will not result in death.  One of the plaintiffs in Carter had MS, which is debilitating but not terminal.
  3. It will be difficult in some areas to find two physicians or nurse practitioners who are independent of each other.  And, how will patient find 2 “independent” witnesses in a hospital to witness the ‘application.’
  4. There is a requirement that the patient’s death is “reasonably foreseeable.”  What does that mean — everyone’s death is “reasonably foreseeable.”  What isn’t foreseeable is the time line, certainly for healthy patients but also for many people with terminal conditions.  Medical complications, effective cures and even a person’s will to live [or lack thereof] will affect the time line.  What if death is “reasonably foreseeable” within 5 years?  10 years?
  5. The Supreme Court stipulated that a patient need not accept a particular, or any, treatment.  The legislation requires that the illness, disease or disability also be “incurable.”  What if it is curable, but with a treatment the patient does not wish to accept?
  6. The preamble recognizes that “it is desirable to have a consistent approach to medical assistance in dying across Canada” but also recognizes that the provinces have jurisdiction over “various matters related to medical assistance in dying, including the delivery of health care services and the regulation of health care professionals…”  Is this an invitation for provinces to encumber the process with laws or regulations that will make it difficult if not impossible to obtain an assisted death?
  7. given how subjective ALL the criteria are, they will be interpreted differently by different physicians and nurse practitioners.  There is no method for pre-approval, no method for ensuring consistency, in the legislation.
  8. The government DID NOT table the regulations setting out when and how reports of medical assisted death must be made, or to whom.  If these are not available when the legislation is passed, what assurances of consistent application of the law, of protection of the vulnerable, of access to assisted death for all Canadians equally, do the people of Canada have?
  9. Anticipate litigation from: persons under the age of 18 who wish aid to die; persons with intolerable conditions that are NOT terminal—including major mental disorders.
  10. The Quebec legislation recognizes the need for access to palliative care.  The federal legislation does not address this valid concern about a significant shortage of this resource everywhere in Canada.
  11. The last sentence of the media “Backgrounder” says the Criminal Code prohibitions against medical assistance in dying remain in effect until June 6th or until Parliament’s legislation comes into effect.  WRONG, at least according to the Supreme Court.  Currently assisted death is available on Judge’s Order.  But the Criminal Code prohibitions are already unconstitutional, except that the Supreme Court extended the effective date of that declaration until June 6th, after which the Criminal code prohibitions cease to be law, whether there is legislation or not.
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