Notes taken during the presentation by Anne de Villars QC. May 1, 2016
DISCLAIMER: This information is general information ONLY and MUST NOT be taken as legally acceptable. There are still issues being discussed . Consult a lawyer BEFORE taking any action.
Distinction need to be made between a will, personal directive and enduring power of attorney:
A will – covers what will be done with your property after you have died.
Personal Directive – covers what is to be done while you are alive but inactive.
Enduring Power of Attorney — the person holding the power of attorney is authorized to make decisions about what to do with your person.
At the time of this presentation a person needs to use a Medical Assistance in Dying (MAID) since you cannot tell someone what you want to do in terms of assisted dying. Until June 6, 2016 this is the situation. At June 6th if the draft bill is not passed section 241 of the Criminal code will be in effect in terms of suicide.
MAID was drafted as a temporary measure while bill C14 is being considered by parliament. The discussions in parliament revolve around the needs of the individual with a disease that meets the bill’s definition (e.g., ALS) vs. the need to protect their liberty and security. Care must be taken to not infringe on the rights of the individual under law. Another problem is finding a physician who is willing to assist in the MAID. Most people fear the process of dying but not the actual act of dying.
In Carter v. Carrington ruling by the Supreme Court in 2012 it was deemed that the criminal code was unconstitutional in the prohibition of suicide. To commit suicide an individual must perform the act themselves i.e. without assistance. The topics under debate include:
What age is acceptable given there are dependent adults. Usually it would be that the person is over 18 years of age and competent. “Competent” is the mental capability to understand what you are doing. Competency is a grey area and very difficult to determine for legal purposes.
What definition of illness applies – e.g., grievous and irremediable illness?
Is it that the persons concerned find the endurance of suffering the illness intolerable in their circumstances? How should the illness be categorized? Is it such that it cannot be alleviated by any treatment acceptable to the patient. These are subject to interpretation and very hard to confirm. The patient must be monitored to prove this.
At present (until June 6, 2016) the Supreme Court decision is that the code is unconstitutional but this does not mean that assisted death is acceptable. Time is needed to develop criteria and definitions that can be legal guidelines. Rather than being administered federally the use of MAID is administered individually by each province. This is only TEMPORARY plus a court order is needed before MAID can be undertaken. The first approved exemption (MAID) case in Alberta was that of Hanna Shaffer need a court order.
At first the case was submitted as anonymous known only under the initials HS as a request for exemption. The review was held in camera. Now that permission was given the secrecy restriction has been lifted.
Currently the case and resulting draft legislation is the case of Carter v. Canada (ATTNYGEN) 2015 SCC5 and Bill C14. With these elements the issues are that a person may lack the ability to make a peaceful ending to their life, of their own choosing or may be of legal age but dependent.
A joint committee was created to review all of the definitions and concerns. This is the bill in draft C14. It is a federal proposal.
To qualify for medical assistance in dying the following must be considered :
- Eligibility for health care in Canada in one of the provinces. i.e., you must live here.
- Age: 18 years – older- younger?
- What equals the mental capability to understand what you are doing?
- What are the criteria to apply to an illness? How do you define grievous and irremediable illness.
- How can a request be made to make a request and confirm it.
- How do you keep a person from being pressured into a request and to prove lack of pressure?
- If consent is to be informed consent what constitutes informed consent? Being told what will be done i.e. how death will be administered for example by lethal injection.
The court did not define irremediable. The illnesses are NOT listed but must fall under a specified definition of characteristics and circumstances.
The bill does not cover mental illness such as dementia or Alzheimer’s. Death in these cases is not reasonably foreseeable.
A person/patient cannot give advanced consent for assisted death. This is due to the safeguards that are built in for when assisted death can be legally implemented. The person must consent IMMEDIATELY prior to being assisted.
Undertaking Assisted Death
What will need to be the circumstances to undertake an assisted death? The following are being debated in parliament and need to be specified to pass Bill 14. Until B14 is passed none of the following are decided.
Consider if there needs to be
- Two medical persons who will assist. Can this be a physician or a nurse or pharmacist? Presumably they MUST NOT be connected to the patient or each other. Currently it is two physicians.
- What about witnesses? It is suggested two witnesses to the requested death. These must not be people to stand to gain from the death.
- When can the action be carried out — after the patient has been informed and indicates that they understand what is being done?
- What time is required to ensure sufficient consideration of the request has been made? More than 15 days prior to death, less?
- If immediately before death the patient must give consent to carry out the procedure what constitutes consent particularly for patients with ALS or similar conditions?
If the patient is losing the ability to consent or has lost the ability to consent IMMEDIATELY BEFORE the procedure this causes a problem. The immediate consent is not part of the current bill. What is being discussed is the situation where the patient know that they meet the criteria specified and should be able to give their permission in advance since they will not be capable to give permission immediately before dying. There is also the question of the case of mature minors and how this can apply to them.
Other issues with unknown resolution
- Religious concerns e.g., for Catholics
- The bill specifies that a medical person cannot be forced to carry out the death.
- There is the concern that a medical doctor has in the face of a request and their own beliefs. It may be difficult to find a physician who will carry out an assisted death.
- Issuing of a death certificate – what is the cause of death?
For example, is death by ALS or by a toxic drug which constitutes a poison? If death is by toxic drug then an autopsy is required under law at present. This is not wanted by authorities. The underlying cause should be the cause of death but this is under debate.
- For insurance purposes how is assisted death to be viewed vs. a suicide.
Bill C14 will have a free vote in parliament in both houses. Several concerns must be clarified:
- Is the person assisting liable under the Criminal Code?
Currently physicians, nurses or pharmacists are not liable.
- Is/should be personal directive be changed? This currently has a prohibition against specifying assisted death. If assisted death becomes law then can this be specified in a personal directive? For example: I want X to assist in death if the illness meets the criteria under C14.
- This is currently part of federal law but it could be changed to fall under provincial law permanently rather than temporarily with MAID. Under provincial law individuals may be allowed to request or carry out assisted death.
- Insurance companies are currently saying assisted death is no different than a natural death, however since the law is being drafted this may change.
- Must it be the patient signing the request or can a request be signed by someone who has power of attorney?