On February 25, 2016, the Hon. Kelvin Kenneth Ogilvie and Robert Oliphant, Joint Co-chairs of the Special Joint Committee on Physician-Assisted Dying ("Committee") tabled their report, Medical Assistance in Dying: A Patient-Centred Approach (the "Main Report") to the 42nd Parliament, 1st Session in the House of Commons.
The Main Report was initiated as a result of an Order of Reference from the Senate and from the House of Commons on December 11, 2015 in response to the Supreme Court of Canada decision in Carter v. Canada (Attorney General). On February 6, 2015, the Supreme Court in Carter declared section 14 and section 241(b) of the Criminal Code void in so far as they prohibit physician-assisted death ("PAD") for a competent adult person who (1) clearly consents to the termination of life; and (2) has 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.
The Committee held sixteen meetings and considered the submissions of various individuals, experts, scholars, and organizations representing medical professionals, patients, as well as cultural and religious groups. The Main Report includes 26 recommendations.
Not all Committee members were in agreement with the Main Report's recommendations. Certain Committee members tabled a Dissenting Report stating that the regime recommended in the Main Report falls far short of what is necessary to protect vulnerable Canadians and the Charter protected conscience rights of health professionals. The principal recommendations put forth in the Dissenting Report are included at the end of this Bulletin.
Below are the principal recommendations set out in the Main Report:
- That medical assistance in dying be available to individuals with terminal and non-terminal grievous and irremediable medical conditions[...].
- That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.
- That the Government of Canada implement a two-stage legislative process, with the first stage applying immediately to competent adult persons 18 years or older, to be followed by a second stage applying to competent mature minors, coming into force at a date no later than three years after the first stage has come into force […].
- That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable[...].
- That the Government of Canada work with the provinces and territories and their medical regulatory bodies to ensure that, where possible, a request for medical assistance in dying is made in writing and is witnessed by two people who have no conflict of interest.
- [...] At a minimum, the objecting practitioner must provide an effective referral for the patient.
- That […] all publicly funded health care institutions provide medical assistance in dying.
- That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to establish that a request for medical assistance in dying can be carried out only if two physicians who are independent of one another have determined that the person meets the eligibility criteria for medical assistance in dying.
- That the Government of Canada work with the provinces and territories, and their medical regulatory bodies to ensure that the process to regulate medical assistance in dying does not include a prior review and approval process.
- That Health Canada lead a cooperative process with the provinces and territories creating and analyzing national reports on medical assistance in dying cases, and that such reports be compiled on an annual basis and tabled in Parliament […].
- That a mandatory statutory review of the applicable federal legislation be conducted by the appropriate committee(s) of the House of Commons and of the Senate every four years after the coming into force of the applicable federal legislation.
- That Health Canada re-establish a Secretariat on Palliative and End-of- Life Care; and that Health Canada work with the provinces and territories and civil society to develop a flexible, integrated model of palliative care by implementing a pan-Canadian palliative and end-of-life strategy with dedicated funding, and developing a public awareness campaign on the topic.
The following are the problems with the Main Report as set out in the Dissenting Report (they are explained in further detail in the Dissenting Report):
- The legal framework proposed by the Committee does not conform to Carter.
- The Committee has introduced a system that does not sufficiently balance respect for individual autonomy with the need to protect vulnerable persons. For example, the Main Report does not recommend that patients diagnosed with an underlying mental health challenge undergo a psychiatric assessment by a psychiatric professional to determine whether they have the capacity to consent to PAD.
- The Committee did not place a strong enough emphasis on palliative care in the context of PAD. For example, a "request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person's suffering".
- The Committee in its Main Report does not sufficiently protect the Charter rights of physicians and healthcare institutions under section 2 of the Charter which guarantees all Canadians "freedom of conscience and religion." For example, instead of forcing physicians who conscientiously object to PAD to be obliged to refer patients through an "effective referral" (Canada would be the first jurisdiction in the world to require an effective referral regime), a model could be created whereby physicians who conscientiously object to PAD could provide information to patients on how to access PAD including how to advise a government agency of the patient's request and the government agency then connecting the patient to a physician who is willing to provide PAD.
- The advanced directive regime proposed in the Committee's Main Report falls outside the parameters set by Carter and further, from a policy perspective the proposed regime is inadvisable.
As held by the Supreme Court, the government has until June 6, 2016 to establish a regime for PAD in Canada.