Update on medical assistance in dying (previously physician-assisted death): Bill C-14

[updated to May 23, 2016]

On April 14, 2016, the federal government tabled Bill C-14, “An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” for First Reading. After First Reading was completed, Bill C-14 was then tabled for Second Reading and debated on April 22, 2016. When the Honourable Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada) introduced the bill for Second Reading in the House of Commons, she explained that, “for the first time in our country’s history, [Bill C-14] create[s] a federal legislative framework to permit medical assistance in dying across Canada.”

The preamble of the proposed legislation states that the federal government, “recognizes the autonomy of persons who have a grievous and irremediable medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in dying”, making this a momentous day for the Canadian legal system. However, criticisms outline that the bill falls short of expectations, as it does not address contentious issues such as advanced consent, conscientious objections to medical assistance in dying, and provision of this option to mature minors and mentally-ill patients.

Bill C-14 was introduced as a response to the Supreme Court of Canada, on February 6, 2015, suspending the force of the prohibition of physician-assisted death in the Criminal Code after finding that the prohibition was unconstitutional because it violated the s. 7 Charter rights of competent adult persons who have grievous and irremediable medical conditions: Carter v Canada (Attorney General), 2015 SCC 5. The suspension provided the federal government with 12 months to implement a new legislative regime addressing physician-assisted death. On January 15, 2016, the Supreme Court of Canada gave the federal government a four-month extension to pass the required legislation, introducing a new deadline of June 6, 2016.

What is included in Bill C-14

Bill C-14 amends the Criminal Code to:

1. Create exemptions from offences to permit physicians and authorized nurses to provide medical assistance in dying and permit pharmacists and other persons to assist;
2. Specify eligibility criteria and safeguards for the process;
3. Require that physicians, authorized nurses and pharmacists involved provide information to monitor this practice and authorize the Ministry of Health to make regulations respecting that information; and
4. Create new offences for failing to comply with safeguards, forging or destroying related documentation, failing to provide required information and contravening regulations.

Additional amendments were simultaneously made to other pieces of legislation to ensure that recourse to medical assistance in dying does not result in loss of a pension or benefits to veterans, and to ensure that a certain investigation does not need to be conducted when an inmate receives medical assistance in dying in prison. The proposed legislation provides for a parliamentary review of its provisions five years after it becomes law.

As outlined in section 241.2(1), in order to qualify for medical assistance in dying, an individual must:

1. be eligible for health services funded by a government in Canada (to prevent “suicide tourism”, which is when foreigners travel to another country to utilize their medical assistance in dying legislation);
2. be at least 18 years of age and capable of making health-related decisions;
3. have a grievous and irremediable medical condition;
4. have made a voluntary request for medical assistance in dying, not resulting from external pressure; and
5. give informed consent to receive medical assistance in dying.

An individual’s condition will be considered “grievous and irremediable” if it is serious and incurable, has put them in an “advanced state of irreversible decline in capacity”, has caused them intolerable, enduring physical or psychological suffering, and where their natural death is reasonably foreseeable.

Before an individual can receive medical assistance in dying, the following events must occur:

1. It is determined by two independent physicians or authorized nurses, one of which must give a written opinion, that the individual meets the criteria set out in s. 241.2(1);
2. The individual, or someone on their behalf, sign and date a written request after they have been informed that their natural death has become reasonably foreseeable;
3. The request must be signed and dated by two independent witnesses;
4. The individual must be made aware of their ability to withdraw the request at any time;
5. There must be 15 clear days between when the individual signed the request and when medical assistance in dying is provided, unless the person’s death or loss of capacity is imminent; and
6. The individual must give express consent and be provided the opportunity to withdraw their consent immediately before providing medical assistance in dying.

The proposed legislation also states that, “[m]edical assistance in dying must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards.” This means that implementing the provisions relating to medical assistance in dying will be the responsibility of the provinces.

Key issues not addressed in Bill C-14

In our previous blog post on this issue, found here (hyperlink), we discussed some of the key issues in the physician-assisted death debate. These issues included:

1. The availability of physician-assisted death to mature minors;
2. The availability of physician-assisted death to mentally ill persons;
3. The possibility of advanced consent when facing risk of losing competence; and
4. Conscience-based objections by physicians.

Despite the extensive recommendations on these key issues released in a report by the joint Senate-Commons committee on February 25, 2016, the federal government declined to address these contentious issues in the proposed legislation. Namely, the federal government did not extend the right to die, or the eventual right to die, as recommended by the joint committee, to mature minors. Similarly, the federal government did not extend this right to mentally ill patients either. The possibility of advanced consent to those with degenerative disorders was excluded and the bill was silent on health-care professionals who may have conscientious objections to helping patients die.

Alternatively, a commitment was made in the preamble as the legislation reads, “…the Government of Canada has committed to develop non-legislative measures that would support the improvement of a full range of options for end-of-life care, respect the personal convictions of health care providers and explore other situations – each having unique implications – in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition…”

Justice Minister Jody Wilson-Raybould asserted that further studies would be done on these contentious proposals and amendments could possibly come in the future.

Potential Charter violations

On April 22, 2016, the Honourable Jody Wilson-Raybould tabled a paper outlining several of the issues that the government considered when developing Bill C-14. In the paper, the Minister of Justice acknowledges that Bill C-14 could violate the Canadian Charter of Rights and Freedoms (“Charter”) on various fronts, such as:

1. Restricting access only to persons whose death is reasonably foreseeable has the potential to impact of infringing an individual’s right to life, liberty and security in Section 7 of the Charter as well as an individual’s right not to be discriminated against based on disability in Section 15(1) of the Charter;
2. Restricting access to competent adults with no option of advanced consent could potentially infringe an individual’s right to life, liberty and security in Section 7 as well as an individual’s right not to be discriminated against based on disability in Section 15(1);
3. Excluding mature minors from eligibility could potentially infringe an individual’s right to life, liberty and security in Section 7 as well as an individual’s right not to be discriminated against based on age in Section 15(1);
4. If the safeguards to protect vulnerable persons are inadequate to prevent abuse or error, it could potentially impact an individual’s right to life, liberty and security in Section 7;
5. Healthcare providers’ might be requested to provide assistance that would be contrary to their conscience or religious beliefs, which are rights protected from government interference by Section 2(a) of the Charter, however, Bill C-14 does not compel healthcare providers to provide such assistance;
6. Excessive burden of safeguards excluding individuals from access could potentially infringe an individual’s rights to life, liberty or security in section 7; and
7. The requirement to have two witnesses present when signing a written request for medical assistance in dying could potentially infringe an individual’s right to privacy in section 8.

In the rationale provided for each potential infringement, the Minister of Justice explains that the approach in Bill C-14, “respects autonomy during the passage to death” and appropriately balances “protecting the vulnerable, and ensuring accessibility to those qualified individuals who want medical assistance in dying.” On the issue of excluding mature minors, the Minister of Justice acknowledges that further study will be undertaken to assess whether mature minors should have access to medical assistance in dying.

Criticisms and challenges

The advocacy group, Dying with Dignity, has labeled the bill to be too narrow and restrictive, and took issue with the term “reasonably foreseeable” death, calling it vague and discriminatory.

The British Columbia Civil Liberties Association also criticized the legislation for being too restrictive by noting that the plaintiff in the case before the Supreme Court of Canada, Ms. Carter, would not have been provided access to medical assistance in dying by this proposed legislation, as she was not facing imminent death.

On April 25, 2016, CMAJ reported that many spokespeople of Canadian health organizations, such as the Canadian Medical Association, College of Family Physicians in Canada, Canadian Nurses Association and Royal College of Physicians and Surgeons of Canada, are satisfied with the government’s “prudent” approach in Bill C-14. However, some believe that the eligibility criteria for accessing medical assistance in dying in vague, specifically around the requirement of an “incurable” condition, as well as a “reasonably foreseeable” natural death. Another criticism expressed by some health providers is the absence of any protections for those who refuse to provide or refer patients for assisted death.

The most significant challenge for Bill C-14 may be the recent decision of the Alberta Court of Appeal which calls into question the constitutionality of a pre-condition of there being a terminal illness to authorization. On May 17th, in the case of AGC and AGBC v. E.F., 2016 ABCA 155, the Alberta Court of Appeal dismissed an appeal brought by on grounds that applicant’s illness no matter how severe was not terminal, and that the illness had at its root a psychiatric illness. The applicant in that case suffered from severe conversion disorder which rendered her immobile, blind, and at times unable to eat for up to two days, and she effectively had no quality of life. While her condition was categorized as a psychiatric disability, her cognitive ability to consent to physician assisted suicide was unimpaired. The Court of Appeal dismissed the appeal, reasoning that the Supreme Court of Canada in the Carter case did not express such limitations and if it had intended such limitations, it would have expressed so clearly and unequivocally. The Court of Appeal commented that while Bill-C14 is currently in the legislative process, there was no legislation subject to constitutional review before it.

Next steps

The federal government is expected to have a new law in place by the looming June 6 deadline. It is expected that Members of Parliament will be voting on Bill C-14 when parliament resumes in the last week of May and if passed, will proceed to the Senate for their approval.

Lisa C. Fong and Kassie Seaby