On April 14, 2016, Canada’s Parliament introduced medical assistance in dying legislation (Bill C-14). The Bill is not yet law as it must go through various stages of voting. If it passes, it will come into force on June 6, 2016.
The Supreme Court of Canada previously said that physician-assisted dying should be available to competent adults who clearly consent to the termination of life and have 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. They left it to the government to fill in any gaps. Cue Bill C-14.
Most people hear about assisted dying in the news now and again, and the nuances of this Bill do not matter much. But for people contemplating assistance in dying, or with a loved one who is in that situation, the big question is: how does this Bill affect me?
As of now, the Bill is just a proposed law. A person who is already in the middle of seeking a “constitutional exemption” (i.e. special permission from a judge to access physician-assisted dying before June 6) can continue down that path.
The Bill is drafted in a manner that narrows who would be eligible in comparison to who is currently eligible via the constitutional exemption route. This means that people contemplating assisted dying in the relatively near future may feel pressure to apply to court in advance of the proposed Bill. And that would be most unfortunate because the primary reason the Court decided to allow physician-assisted dying in Canada is because people were ending their lives prematurely (while they were able to do so without assistance).
However, for people who will clearly be eligible under the proposed Bill, the process to access assisted dying will be significantly simpler than the current legal process of applying to Court. There may still be some obstacles (such as finding two “independent witnesses” in a hospital), but those pale in comparison to what people are going through right now to access the exemption.
People who think they might want to request assisted dying some time in the distant future will be affected by the Bill only if it receives enough votes to become law. If it does, those people may be interested to know who will be eligible for medical assistance in dying after June 6, 2016.
Who will be eligible for medical assistance in dying if the Bill becomes law?
Under the proposed law, after June 6, 2016, a person would be eligible for medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible … for health services funded by a government in Canada
In other words, Canada is not going to become a destination for euthanasia tourism.
(b) they are at least 18 years of age and capable of making decisions with respect to their health
The Supreme Court of Canada said that assisted dying should be limited to adults, but not everyone agrees what age constitutes adulthood, and some people feel that drawing a line will result in age discrimination. However, age discrimination is different than other kinds of discrimination because we all age, so legal challenges about this particular criterion may not be successful.
(c) they have a grievous and irremediable medical condition
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure
This is one area where most people seem to agree – a person seeking assisted death should not be coerced into making the request. What is alarming about the Bill is that although the request must be in writing, if the person requesting medical assistance in dying is unable to sign and date the request, another person — who is at least 18 years of age and who understands the nature of the request for medical assistance in dying — may do so in the person’s presence on their behalf. This seems to open the door for coercion. Why not just videotape the person’s request? Surely a video request coming directly from the person is a better safeguard than allowing someone else to sign on the person’s behalf.
(e) they give informed consent to receive medical assistance in dying
Again, most people seem to agree that consent should be required. However, there has been debate about whether the informed consent must occur only at the time of the request, or also at the time the death is to occur. For example, someone with dementia might lose the mental ability to legally consent at the time death would be assisted, but may want medical assistance in dying upon reaching a certain stage of dementia. Bill C-14 would not allow that to happen and says that immediately before providing the medical assistance in dying the person must give express consent to receive medical assistance in dying.
What does “grievous and irremediable” mean?
There has been much debate about the phrase “grievous and irremediable” (a phrase used by the Supreme Court of Canada) and Parliament has taken on the task of defining it as follows:
A person has a grievous and irremediable medical condition if
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) 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
(d) 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.
This definition does not appear to be consistent with the Supreme Court of Canada decision that legalized physician-assisted dying. In particular, the Court made it clear that a person could be eligible even if they do not have a terminal illness (for example, a person with locked-in syndrome might be eligible). However, item (d) above makes it sound as though a person must be dying. This unfortunate phrasing is going to create significant confusion because everyone is going to die at some point. What makes a death “reasonably foreseeable”? In other jurisdictions where assisted dying is legal, specific time frames are often used for greater clarity, such as Oregon’s legislation which limits access to people expected to live no longer than 6 months.
Item (b) above also introduces some problems. Does “capability” mean physical or mental abilities? As discussed above, the Bill says that a person must be able to provide express consent at the time of the death. However, under existing law, consent can only be provided by a person who is mentally capable. So a person must be capable, but with capacity that is declining? Making capacity a moving target serves no one’s interests.
Because of this very confusing definition of “grievous and irremediable”, this blog was almost titled “My Legal Opinion is: “Huh?””
No matter what Parliament decides, there will be stakeholders who are unhappy. And when lines are drawn, there will always be someone close to the line who is excluded. But hopefully there will be some further revisions to this Bill so that there is at least clarity for everyone.
through a difficult time?