Medical Assistance in Dying

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15th Oct 2016

With the passage of Bill C-14, Parliament took its first step in regulating access to Physician Assisted Dying, now defined as Medical Assistance in Dying (MAID). However, rather than adding clarity to a fraught subject, the new criteria brought into the Criminal Code by C-14 have created a greater level of uncertainty for those who wish to exercise their Charter rights pursuant to Carter v Attorney General (Canada), 2015 SCC 5 (Carter).

Under the new rules, access to MAID has been restricted to individuals with serious and incurable illnesses that are in an advanced state of irreversible decline and whose death has become reasonably foreseeable. None of these restrictions were present in the considerations of the Supreme Court in Carter.

The new rules, no sooner having been put in place, have been challenged by the BC Civil Liberties Association. They allege the amendments to the Criminal Code are contrary to sections 7 (right to life, liberty, and security of the person) and 15 (right to equal benefit of the law) of the Charter. Among other issues, they argue that the restriction that death be reasonably foreseeable is an unjustified infringement of an individual’s personal autonomy to choose the manner and timing of their death in the face of their illness.

There is reason to believe that this challenge will be successful. Between the Carter decision and the passage of C-14, there was a 4-month period from February to May of 2016 in which MAID was possible but required judicial authorization before proceeding. One such authorization, Canada (Attorney General) v EG, 2016 ABCA 155, dealt directly with the issue of reasonable foreseeability of death. The Alberta Court of Appeal found that the terminal-nonterminal distinction argued by the government was without merit in light of the language in Carter leading one to assume that this new criteria of C-14 is contrary to ruling in Carter. It remains to be seen if the BC Courts will agree.

Also, individuals cannot under the current rules seek MAID through their advanced directives. This may prove to be an issue for the courts as it is contrary to the principle of patient autonomy and may necessitate some to choose MAID while they still have mental capacity before their illness progresses to a point where they cannot fit within the current rules.

So what does this all mean? Presently, individuals in the terminal stages of their illness may request MAID from their doctor and complete the administrative steps required by Alberta Health Services. For those who suffer from a grievous and irremediable medical condition, which may be intolerable to them but their death is not “reasonably foreseeable,” access to MAID will be denied despite having been capable of obtaining it by judicial authorization prior to the passage of C-14.

Longer-term, these rules may change both in the face of the current court challenge and at the initiative of Parliament after an independent review of the rules pursuant to s. 9.1 of C-14, which is to start within the first 180-days after June 17, 2016 or the date upon which C-14 received royal assent.

As changes develop, we will keep you posted.

Matthew G. Fox

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