Our Estate Alert of February 6, 2015 discussed the Supreme Court of Canada [“SCC”]’s decision of Carter v. Canada (Attorney General)1 that was released that day. Now that we have had some time to consider the decision, we are asking “what’s next?”

Several questions arise following this decision:

Criteria for physician-assisted death

What will be the criteria for the exercise of physician-assisted death? The trial judge offered one  set of criteria in her judgment:

“a medical practitioner in the context of a physician-patient relationship, where the assistance is  provided to a fully-informed, non-ambivalent competent adult person who: (a) is free from coercion  and undue influence, is not clinically depressed and who personally (not through a substituted  decision-maker) requests physician-assisted death; and (b) has been diagnosed by a medical  practitioner as having a serious illness, disease or disability (including disability arising from  traumatic injury), is in a state of advanced weakening capacities with no chance of improvement,  has an illness that is without remedy as determined by reference to treatment options acceptable to  the person, and has an illness causing enduring physical or psychological suffering that is  intolerable to that person and cannot be alleviated by any medical treatment acceptable to that  person.”2

The SCC did not provide further insight on the eligibility requirements, nor did they offer  any  practical guidance as to what would constitute a “carefully designed and monitored system of  safeguards.”3 Noticeably absent is the need for the illness, disease or disability to be terminal  to the person for physician-assisted dying to be granted. Should the terminal status of a patient  affect the decision of the physician? Are the current methods used by physicians to assess capacity  adequate now that assisted dying is an alternative? What degree will a patient’s level of suffering  have to reach before it is considered intolerable? Who will decide the process for the granting and administration of the practice? Will   there be a  mechanism in place to review and regulate physicians? Most importantly, what happens if something  goes wrong?

Life Insurance

The effect of this decision on life insurance remains to be seen. Life insurance policies typically  contain a “suicide clause” that voids all death benefits if the insured commits suicide within two  years of taking out a policy. However, a spokesperson for an insurance industry association stated  that the industry does not anticipate a significant impact due to  the fact that most insured patients would have purchased their life insurance policy more than two  years prior to seeking physician-assisted death. Provided that the government implements proper safeguards, the number of  patients to whom physician-assisted suicide is granted should be limited, thus this decision should not introduce  financial burden for insurance companies.

Powers of Attorney

The SCC accepted the trial judge’s conclusion that the request for physician-assisted death be  personally made by a fully-informed, non-ambivalent competent adult, not through a substituted  decision-maker. This clarification helps avoid the policy concerns that would have been sure to  follow, particularly in cases where a substitute decision-maker may   be as young as 16 years old.  In the event the government expands the powers of substitute decision-makers to include the ability  to elect physician-assisted death for their wards, estate practitioners may need to amend the  clauses in their Powers of Attorney for Personal Care accordingly.

Outside of Canada

As a basis of comparison, in North America, Oregon, Washington and Vermont in the United States  permit physician- assisted suicide. In all three states, physician-assisted dying is permitted but  only by means of a prescription for lethal medication to be self-administered by the patient.  Euthanasia is not permitted and the patient must self-administer the medication. In order to  qualify for the medication, the patient must meet the minimum age requirement of 18 years, be a  resident of the state, be capable (as defined in their state legislation), and suffer from a  terminal disease (also as defined in their state legislation), and the request must be voluntary.

In South America, assisted death is permitted in Colombia “so long as it is performed by a medical  professional with the consent of a patient who is experiencing intense suffering as a consequence  of a terminal illness.”4

In Europe, the Netherlands, Belgium and Luxembourg permit the practice of one or both of  physician-assisted suicide and euthanasia. In Luxembourg, both practices are permitted so long as  several conditions are met. In Switzerland, euthanasia is not permitted but the laws governing the  practice of assisted suicide are far less restrictive as a person needn’t be a Swiss citizen or  have a medical precondition and a physician needn’t be involved. In Belgium, the term “euthanasia”  is used as a compendious term including both euthanasia and physician-assisted death. In 2014,  Belgium also became the first country in the world to remove any age limit on practice. In the  Netherlands, euthanasia is legal for children over the age of 12 with parental consent.

Though physician-assisted dying is much more narrowly defined and will have more practice  restrictions in Canada, it is useful to look at other jurisdictions to evaluate what the impact of decriminalizing  physician-assisted suicide will be on Canadians. However, it remains to be seen how receptive the Canadian government will be to  learning from its international counterparts.