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Assisted Dying: Ontario Court Clarifies Meaning of “Reasonably Foreseeable Death”

An Ontario Court has brought some clarity to confusing language in the Criminal Code that regulates medical assistance in dying in Canada.

The Criminal Code states who is eligible for a medically assisted death. One of the criteria is that a person’s “natural death has become reasonably foreseeable.” This phrase has confused lawyers and doctors as it is not a medical term, everyone’s death is foreseeable (at some point), and it is at odds with the decision of the Supreme Court of Canada that first legalized physician-assisted dying (which did not limit eligibility to people who are dying).

A 77 year old woman in Ontario suffering from an incurable disease and excruciating pain recently brought this issue to Court. She sought a Court order because one of her doctors (two are required to sign off*) believed she met the legal criteria but did not want to risk being charged with murder in case his assessment was incorrect.

The judge stated that this physician cannot on one hand say that from a medical point of view the patient’s natural death is reasonably foreseeable but on the other hand claim he is uncertain about assisting because of the vagueness of the term “reasonably foreseeable”.

While the judge declined to make an order that would protect the physicians from any criminal charges, he used the opportunity to interpret the phrase “reasonably foreseeable”:

In referring to a “natural death” the language denotes that the death is one arising from causes associated with natural causes; i.e., the language reveals that the foreseeability of the death must be connected to natural causes, which is to say about causes associated with the functioning or malfunctioning of the human body. These are matters at the core if not the whole corpus of medical knowledge and better known to doctors than to judges. The language reveals that the natural death need to be connected to a particular terminal disease or condition and rather is connected to all of a particular person’s medical circumstances”.

This case clarifies that to be “reasonably foreseeable” a person’s death does not have to be “imminent”.

The judge concluded by acknowledging that there may be some cases where it is unclear whether a person’s death is reasonably foreseeable, but this is not one of them.

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