The Supreme Court decision in Carter v. Canada (Attorney General), released in February 2015, created a new legal right to physician-assisted dying (PAD) in Canada. Over the past year, various stakeholders including the federal and provincial governments, academics, regulated health professional colleges, health-related associations, disability groups, religious institutions, other interested organizations, patients and the Canadian public have been actively considering how to best implement PAD. 

The following is a summary of what has transpired over the course 2015, as well as an overview of what is expected in 2016.

The Supreme Court of Canada Agrees to An Extension of Time

The Supreme Court of Canada recently granted the Federal Government a four-month extension of time to consider its approach to PAD. Parliament now has until June 6, 2016[1] to act before the decision comes into effect.

In Carter the Court declared that certain provisions of the Criminal Code "are of no force or effect to the extent that they prohibit [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 declaration of invalidity of these provisions was suspended for 12 months, until February 6, 2016. The Attorney General of Canada had applied to the Supreme Court for a six-month extension of the suspension.

The Supreme Court granted the application, but only extended the suspension for four months, rather than the requested six. The Court ruled the four-month extension of the suspension was justified given the four-month interruption during last year's federal election.

The Court also agreed to exempt individuals who wish to seek assistance in ending their life during the four-month extension. To have the benefit of this exemption, individuals must receive court authorization.

The Supreme Court also granted Quebec an exemption from the four- month extension of the suspension of the declaration of invalidity because neither the Attorney General of Canada nor the provincial Attorneys General who participated in the hearing opposed Quebec's request for an exemption. 

Special Joint House of Commons-Senate Committee on Physician-Assisted Dying

A special joint committee on PAD, comprised of 11 members of Parliament and five senators, has been appointed to review the report of the "External Panel on Options for a Legislative Response to Carter v. Canada." The joint committee is also tasked with reviewing other recent relevant consultation activities and studies, consulting with Canadians, experts and stakeholders and making recommendations to the federal government on the legislative framework for PAD. The co-chairs of the committee are: Liberal MP, Robert Oliphant and Conservative Senator, the Hon. Kelvin Kenneth Ogilvie. The joint committee has untilFebruary 26, 2016 to make its recommendations.

For more information visit the special joint committee website.

External Panel on Options for a Legislative Response to Carter v. Canada

Background

In July 2015, the Ministers of Justice and Health, under then-Prime Minister Harper's Conservative government, formally established the External Panel on Options for a Legislative Response to Carter v. Canada (the 'Panel'). The Panel was chaired by Dr. Harvey Max Chochinov. The two other Panel members were Professor Catherine Frazee and Professor Benôit Pelletier. The Panel's mandate was to hold discussions with the interveners in Carter and with "relevant medical authorities," and to conduct an online consultation with stakeholders in Canada and abroad. The final report was submitted to the government on December 15, 2015. It was released to the public on January 28, 2016.

Broad Consultations

Over the course of five months, the Panel held meetings with 73 individual experts in Canada, the U.S., the Netherlands, Belgium and Switzerland. The Panel consulted directly with 92 representatives of interveners, medical authorities and stakeholders from 46 Canadian organizations. The Panel also reviewed and considered 321 written submissions from civil-society organizations, academics and individual citizens. From its online consultation, the Panel received 14,949 completed questionnaires. The Panel engaged an independent third-party expert to provide an assessment of the conclusions drawn from the extensive data collected and to help guide its interpretation.

Findings

  • Implementing a safe and thoughtful PAD framework with equitable access for eligible Canadians will require substantial collaboration between the federal, provincial and territorial governments.
  • There is support for a more fully descriptive articulation of what is meant by the terminology used in the Carter decision i.e. 'grievous and irremediable' in the context of physician-assisted dying. Legislators may choose to define some of the terms and phrases central to the Court's declaration.
  • There is general agreement that assisted dying frameworks must include mechanisms for careful review and be accompanied by significant efforts to provide suffering individuals with good quality health and social services.
  • There is broad consensus among Canadians for greater access to quality palliative care (in particular because a request for physician-assisted death may not be truly voluntary if the option of proper palliative care is not available to alleviate a person's suffering). Both palliative care and PAD should be made available to Canadians in a way that meets the population's expectations.
  • Participants in consultations demonstrated strong levels of support for: a national oversight body for PAD; a national strategy on palliative and end-of-life care; a comprehensive national home-care strategy; a national strategy on disability supports; and palliative care education for all healthcare providers.
  • Participants were more likely to agree that PAD should be allowed when a person faces significant, life-threatening and/or progressive conditions.
  • Participants were generally more concerned about risks for persons who are mentally ill, especially those with periodic conditions, and for persons who are isolated or lonely.

The main body of the report provides helpful insight from stakeholders and the experience in other jurisdictions on procedural options for seeking PAD i.e. the legislative options around process for making requests and assessing those requests.

For more information on the report, visit the Department of Justice website.

Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying

On August 14, 2015, 11 participating provinces and territories appointed a nine member Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying (the 'Advisory Group') to provide non-binding advice to participating provincial-territorial Ministers of Health and Justice on what policies and procedures should be implemented within their jurisdictions in response to the Carter decision. The Advisory Group was co-chaired by Professor Jennifer Gibson and Professor Jocelyn Downie. The Final Report, dated November 30, 2015, was released to the public on December 14, 2015.

The Advisory Group made 43 recommendations, including:

  • Recommendation #1: develop a pan-Canadian strategy for palliative and end-of-life care
  • Recommendation #5: publicly fund PAD
  • Recommendation #8: amend the Criminal Code to allow PAD to be performed by a regulated health professional acting under the direction of a physician or nurse practitioner
  • Recommendation #11: create patient declaration forms witnessed by an independent party
  • Recommendation #14: substitute-decision makers should not have the legal authority to consent to PAD on behalf of an incompetent patient
  • Recommendation #17: eligibility for PAD should be based on competence rather than age
  • Recommendation #22: the review process should include two physicians
  • Recommendation #26: there should be no prescribed waiting/reflection period between the initial request and the declaration
  • Recommendation #27: PAD should be available wherever the patient lives
  • Recommendation #29: following the PAD, physicians should file a report with a Review Committee for review of each individual case
  • Recommendation #33: conscientiously objecting health care providers should be required to provide a referral or a direct transfer of care to another health care provider
  • Recommendation #38: faith-based institutions must either allow PAD within the institution or make arrangements for the safe and timely transfer of the patient
  • Recommendation #40: provincial and territorial governments (with the federal government) should establish a pan-Canadian Commission on End-of-Life for oversight

Read the report on the Ministry of Health and Long-Term Care website.

Quebec's Act respecting end-of-life care

In early December 2015, the Quebec Superior Court of Justice suspended implementing Quebec's Bill 52, An Act respecting end-of-life care until certain provisions of the Criminal Code were clarified or revised pursuant to the legal test outlined Carterdecision. The decision was appealed and the Quebec Court of Appeal maintained that the province had a right to allow terminally ill patients the choice to die with medical assistance. An Act respecting end-of-life care came into effect in Quebec on December 10, 2015.

It is unclear how or whether this legislation will be amended if the federal and/or provincial/territorial governments define a framework that differs from Quebec's Act.

The Canadian Medical Association

On January 21, 2016 the CMA released its "Principles-based Recommendations for a Canadian Approach to Assisted Dying." There are nine foundational principles that guide its recommendations:

  • Respect for persons - capable and competent people are free to make autonomous decisions
  • Equity - all who meet criteria should have access to the intervention without discrimination
  • Respect for physician-values - physicians can follow their own conscience but it must not result in undue delay for the patient
  • Consent and capacity - all requirements for informed consent must be clearly met
  • Clarity - there must be no grey areas in legislation or regulations
  • Dignity - all patients and family members must be treated with dignity and respect
  • Protection of Patients - laws and regulations must be carefully designed with a monitored system of safeguards
  • Accountability - an oversight body and reporting mechanism should be established
  • Solidarity - patients must be supported and not abandoned

Read the report on the CMA website.

Provincial Physician Regulatory Colleges

Many health regulatory colleges across the country have been developing interim policies and guidelines for PAD as they await the provincial and federal regulatory response. The following are links to useful policies, guidelines or standards for physician regulatory colleges in Canada.

Click here to view table.

Outlook for 2016

It is expected that, in 2016, the framework for physician-assisted dying will be defined in Canada. Although the provincial governments are working closely with the federal government, it is yet unclear whether the provinces and territories will agree on how the framework will be structured and therefore deploy a consistent approach to legislating PAD across the country.

Once a framework has been designed, the provincial regulatory colleges, associations, hospitals, long-term care homes and other institutions and professionals will need to design training, educational sessions, policies and guidelines in order to implement PAD and ensure compliance.