Margaret Pierce / Legal Issue 2017

On June 17, 2016, Canadian Bill C-14 received royal assent, allowing—for the first time—some Canadian adults to choose to end their lives with medical assistance without assisting pharmacists, doctors, nurses, or family members being prosecuted.

Bill C-14 changes the Canadian criminal code to allow for medical assistance in dying (MAID). But the controversial bill contains many caveats, including a limitation of the assistance to the incurably ill, and is sure to be subject to many legal challenges.

“Bill C-14 was enacted following the 2015 decision of the Supreme Court of Canada in Carter v. AG Canada, which held that the Criminal Code’s blanket prohibition against assistance with dying was contrary to the constitutional right protecting life, liberty, and security of the person,” says Sheila Tucker, associate counsel with Shapray Cramer Fitterman Lamer in Vancouver, Canada. “Unfortunately, the terms of Bill C-14 are more restrictive than the court decision—which means some … continue to be deprived of their rights.”

Julia Lamb, 25, who has spinal muscular atrophy, and the B.C. Civil Liberties Association are challenging MAID, contending that the law’s restrictions run counter to the Supreme Court ruling. Lamb, whose disease has left her wheelchair-bound, wants the option to avoid years of suffering, but under the new law she can’t pursue medical channels for ending her life.

The Canadian Bar Association has called on the legislature to remove the restrictions.

Who Can Choose to Die?

Daphne Jarvis, partner at Health Law Group, believes the bill’s language was derived from “very high quality and thoughtfully considered” input and consultation. The protections prevent suicide by people who are mentally ill, in crisis, or unable to make a rational choice, according to Jarvis.

“The general sense is that [the law] has struck a reasonable compromise,” she says. “The government’s intent was seemingly not to restrict MAID only to those whose death is imminent because of a fatal or terminal disease. But as the language used is open to interpretation, it could benefit from some legal clarification.”

Under C-14, in order to utilize medical assistance, a person needs to meet these criteria:

1. have a serious, incurable illness, disease, or disability;

2. be in an advanced state of irreversible decline in capability;

3. endure intolerable physical and psychological suffering; and

4. their natural death has become reasonably foreseeable. Tucker takes issue with that last point.

“There are issues with physicians finding the definition of ‘reasonably foreseeable’ overly vague,” she says. “This vagueness effectively operates as a form of prior restraint—riskadverse physicians will decline to assist in cases involving patients who quite arguably do come within the eligibility parameters of C-14.”

"It is hoped that the legislation might have a significant effect on expanding all of the options for care at the end of life." Daphne Jarvis, Partner at Health Law Group

Other restrictions limit access to MAID.

• Only Canadian citizens are covered.

• Informed consent must be provided.

• Advanced directives are not allowed, disqualifying people with degenerative mental diseases, such as dementia.

• There is a required reflection period of at least 10 days after the individual signs a written request. (If death is imminent, the reflection period can be reduced.)

• Family and friends have no authority to authorize or prevent a physician-assisted death. 

Now What?

The politics of C-14 still rage in various branches of government, and the social influences that created the conditions for this change are likely to continue to grow as individuals exercise their rights, says Tucker.

“Autonomy in terms of medical decision-making has strongly come into its own in Canada in recent decades,” she says. “Our society now substantially comprises individuals who are accustomed to making decisions about what and how much health care they want.”

Jarvis agrees.

“It is hoped that the legislation might have a significant effect on expanding all of the options for care at the end of life, including palliative care and terminal sedation, because of the focus that it has brought to bear on end-of-life issues,” she says.

--------------------------------------

Countries with laws that protect the right of individuals to take their lives with medical assistance include Switzerland, Colombia, the Netherlands, Belgium, the United Kingdom, and Luxembourg, plus Oregon, Washington, New Mexico, Vermont, California, and Montana in the United States.