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Medical Assistance in Dying: The First Year in Review

Medical assistance in dying, as physician-assisted death is known in Canada, has been legal just over a year: it was June 2016 when the federal government’s amendments to Canada’s Criminal Code gave effect to the Supreme Court ruling in Carter v. Attorney General. That ruling held the Criminal Code prohibitions against assisting a person to die to be unconstitutional,

…insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering…[1]

in the year since it became legal for physicians to assist a patient’s death without a court application. Approximately two Canadians a day avail themselves of assisted death.

Essentially, the process to obtain physician assistance to die involves the patient making a request in writing, a 10 day waiting period in most cases, two physicians agreeing the patient meets the criteria for assisted death and then administration of drugs that first sedate the person, then cause his or her death.

But, some problems have arisen.

  1. Conscientious Objectors: The Supreme Court specifically recognized that some physicians will object on religious or other grounds to being involved in causing the death of a patient. The “work around,” province by province has been to establish a referral service to which these doctors can refer patient inquiries about assisted death.       But, at this writing, that matter is before the Courts, as some physicians argue that even making a referral breaches their values and beliefs.

The problem is more complex when a faith-based hospital does not wish to have assisted deaths take place on their premises because the referral has to be to another hospital, a transfer fraught with expense, patient discomfort and various technical difficulties. It also raises a problem in remote communities in which the only hospital within potentially hundreds of miles is faith-based.

  1. Physician Burnout: Some of the physicians who initially agreed to take part in assisting death either find the process too onerous or too emotional. Anecdotally only, it seems physicians are dropping out with the result of more cases for those still taking part.
  2. Uncertainty as to Who Qualifies: What exactly is a “grievous and irremediable medical condition that causes enduring and intolerable suffering?” The best answer seems to be, “We know it when we see it.”       There are few guidelines to assist physicians to interpret this phrase. There is also no avenue of appeal for a patient whose physicians decide he or she does not meet the criteria, other than possibly shopping for other physicians – which can be rather difficult for a person at this stage of illness.

Though, there is always litigation. An interpretation problem arose with something the Federal Legislation contains which was not in the Supreme Court ruling: the requirement that the person’s “natural” death be “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.”[2]

That phrase was litigated before Justice Perell of the Ontario Superior Court on June 19, 2017.[3] A.B. suffered a painful and debilitating condition that was not, of itself, life threatening. She was in her late seventies, essentially confined to bed and in constant pain. She wanted to die. Two physicians, as the law requires, concluded she met the criteria for assisted death, but a third physician was less sure. One of the physicians who had concluded Ms. A. B. met the criteria then declined to be involved given the view of his dissenting colleague. He was concerned that taking part in assisting Ms. A.B.’s death could lead to his being charged with murder.

Justice Perell clarified the legislation, to everyone’s benefit. He wrote that the legislation did not require death to be reasonably foreseeable because of the condition underlying the enduring and intolerable suffering alone, because the legislation requires that death be reasonably foreseeable “taking into account all of their medical circumstances.” Justice Perell wrote, at para 81, “The language reveals that the natural death need not be connected to a particular terminal disease or condition and rather is connected to all or a particular person’s medical circumstances.”

Based upon his interpretation of the legislation, Justice Perell concluded that Ms. A.B.’s natural death was reasonably foreseeable.

[1] Carter v Attorney General, 2015 SCC 5 at para 68, [2015] SCR 331 [Carter].

[2] Criminal Code, RSC, 1985, c C-46, s 241.2(2)(d).

[3] A.B. v Canada (Attorney General), 2017 ONSC 3759, 2017 CarswellOnt 9494 (WL Can).

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