An Ontario court has granted its first order allowing a person to die with the assistance of a doctor. The decision was released on March 17, 2016 and the person had a physician-assisted death the following day. The very first order in Canada was granted in Alberta a couple of weeks earlier.
As discussed in previous blogs, at this time physician-assisted dying is only legal for persons who first obtain a court order granting permission. Otherwise it is still a crime to assist another person to end his or her life.
This blog will review and summarize the historical Ontario decision.
The patient was an 81 year old man with advanced-stage aggressive lymphoma (cancer). He was retired and married with three kids. Due to his illness he was:
- in terrible pain
- not able to control his bowels or bladder
- unable to sit or stand unassisted
- expected to die in less than 3 months
A psychiatrist confirmed that he was mentally competent and did not appear to be coerced into making the request.
The Court Application
The man asked for the right to die with the help of his doctor. The application included sworn statements by himself, his spouse, his child, his treating physician, his palliative care physician, a psychiatrist and someone from his lawyer’s office about interactions with the coroner’s office.
In addition to seeking permission for the right to a physician-assisted death, the patient also asked
- that the coroner not be notified; and
- that his name and the names of his family and doctors be kept confidential.
The man was required to notify the provincial and federal governments about his application; they neither supported nor opposed it.
Under the Ontario Coroners Act certain deaths must be reported to a coroner, and a coroner can then decide to perform an autopsy (which involves seizing and dissecting the body). Even though the cause of death would be clearly known, the coroner was unable to promise in advance that an autopsy would not be performed. The man therefore asked the court to order that the coroner not have to be notified (thereby eliminating the risk that he would be subject to an autopsy).
In the written decision the judge made a few interesting observations about the court’s role:
- that the role of the court is to “investigate and to be satisfied that the criteria for a physician-assisted death are satisfied”
- that the court has no discretion – if a judge thinks the person meets the criteria for a physician-assisted death then the order must be granted
The judge reviewed the evidence and was satisfied that the man met the criteria for physician-assisted death as set out by the Supreme Court of Canada in the Carter case. With respect to notifying the coroner, the judge was satisfied that although medication would be given to make the patient’s body shut down, the cancer would be the underlying cause of death. He agreed that the patient’s doctors should not be required to notify the coroner.
The judge did, however, comment that this might not be the case where an application is brought involving a different kind of medical condition, particularly one that is not life-threatening.
The confidentiality order was granted 10 days prior by a different judge. In that hearing, heard separately, members of the media were involved. The media argued that the doctors’ names should be publicly disclosed because this is a matter of great public interest that requires oversight. The media expressed concern that doctors might “rubber-stamp” these types of applications.
The judge ultimately decided that the “confidentiality order is necessary in order to ensure that the applicant, his family, physicians and other health care professionals, are not deterred from participating in a Carter application for fear of unwanted publicity and media attention”. The patient’s lawyer proposed sharing all of the documents with redactions to protect identities, but with explanations about the nature of information removed, so that the majority of the court record would ultimately be accessible to the public. The judge thought that this compromise was an appropriate balancing of the competing interests.
As well, given that this was the first application, the rubber-stamp concern was not an issue. Further, on future applications judges would be able to see the doctors’ names so that they could guard against this risk even without the public having access to the names.
This decision is incredibly important because it is only the second such decision in Canada. It will set the groundwork for the court applications to follow. It will provide guidance to doctors, lawyers, patients and legislators about physician-assisted dying in Canada.
The government could have contested the application but did not. This is useful information because it suggests future applications are not that likely to be contested. It also set the standard for how matters involving notification to the coroner and requests for anonymity are likely to proceed.
Had the confidentiality order not been granted, it almost certainly would have resulted in greater barriers for people seeking physician-assisted death in Ontario. PAD is such a new practice that at this current time it is very difficult for patients to find professionals to assist, and those that are willing would be less likely to do so if identified in the media.
However, it is possible that some cases will progress differently, particularly where the patient’s condition is not life-threatening, a family member opposes the application, or the patient does not mind being identified or has already been identified in other platforms such as speaking with the media.
A case may also unfold differently if a patient applies without the three physician affidavits (including one from a consulting psychiatrist) which are recommended by the Superior Court of Justice but not mandatory. It is challenging for people seeking physician assisted-death, who are suffering from debilitating medical conditions, to arrange timely assessments and obtain three professional affidavits.
There is not yet any legislation regulating physician-assisted dying in Ontario, although that is likely to change shortly. Until legislation comes into force, or June 6, 2016 (click here to read the significance of that date), patients must apply to court to obtain permission in order to access physician-assisted dying.
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