Developments to Watch

CCA Expert Panel on MAiD
Through the Canadian MAiD legislation, Parliament tasked the Ministers of Health and Justice to “initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.” In December 2016, the Government asked the Canadian Council of Academies to conduct an independent review on these issues. The Canadian Council of Academies in turn appointed an Expert Panel to conduct the review. The Expert Panel will conduct an assessment of the evidence available on the three issues and will release the results of its independent review in the Fall 2018. It will not make recommendations on the policy issues that lie behind the statutory mandate to initiate the review. The Government is required to report back to Parliament by December 2018.Mature minors – access to MAiD is restricted to individuals over the age of 18. The policy issue here is whether mature minors should also have access and, if so, under what conditions. Mature minors are individuals under the age of majority (18 or 19 depending on the province or territory) who have the capacity to understand and appreciate the consequences of the specific decision in front of them.Advance requests – access to MAiD is restricted to individuals who have the capacity to give express consent immediately prior to the provision of MAiD. The policy issue here is whether access to MAiD should be available through requests made by competent individuals in advance of loss of capacity and, if so, under what conditions.Mental illness is the sole underlying medical condition – individuals whose sole underlying medical condition are not expressly excluded from access to MAiD. If they meet the eligibility criteria, access is permitted under the legislation. However, as a consequence of the specific definition of the general eligibility criterion “grievous and irremediable medical condition,” many people with mental illness as the sole underlying medical condition will not be deemed eligible. Most commonly, they will found to not meet the requirement that their “natural death has become reasonably foreseeable”. The policy issue here is whether access to MAiD for individuals whose sole underlying medical condition is a mental illness should be more restrictive (change the law to explicitly exclude them), retain the status quo (leave the law as it is such that they qualify if they meet the current eligibility criteria), or more permissive (change the law so as to allow greater access) and, if becoming more permissive, under what conditions to allow access.
Charter challenges to C-14
Julia Lamb and British Columbia Civil Liberties Association v. Canada (Attorney General)

On June 27, 2016, Julia Lamb and the British Columbia Civil Liberties Association filed a Notice of Civil Claim launching a Charter challenge to the federal medical assistance in dying legislation:

This claim challenges the constitutional validity of the following underlined portions of s. 241.2 of the Criminal Code, R.S.C. 1985, c. C-46, as amended by Bill C-14, assented to on June 27, 2016 (the “impugned laws”):

241.2 (1) A person may receive medical assistance m dying only if they meet all of the following criteria:

(a) they are eligible or, but for any applicable minimum period of residence or waiting period, would be eligible for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering including palliative care.

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;

and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances. without a prognosis necessarily having been made as to the specific length of time that they have remaining.

On July 27, 2016, the Attorney General filed its response to the civil claim.


Truchon and Gladu v. Canada (Attorney General) and Quebec (Attorney General)

On June 13, 2017, two plaintiffs filed an application for declaratory relief in Quebec. The application is aimed at both Quebec’s and Canada’s assisted-dying legislation. Jean Truchon and Nicole Gladu argue the laws violate their Charter rights because they are too restrictive. Jean Truchon has cerebral palsy; Nicole Gladu has post-polio syndrome.

Disciplinary proceedings

College of Physicians and Surgeons of British Columbia Complaint against Dr. Ellen Wiebe

On February 13, 2018, the CPSBC Inquiry Committee issued a “Final Disposition Report” on a complaint submitted by the Chief Medical Officer and Coroner, BC Coroners Service against Dr. Ellen Wiebe asking the College to “review this matter [medical assistance in dying for Ms. S] to ensure that the eligibility criteria for medical assistance in dying were met.” The Inquiry Committee concluded that “a patient cannot be forced to take treatment they do not consider acceptable, i.e., patients seeking medical assistance in dying retain, as do all competent patients, right of refusal. It was determined that Ms. S met the requisite criteria and was indeed eligible for medical assistance in dying, despite the fact that her refusal of medical treatment, food, and water, undoubtedly hastened her death and contributed to its ‘reasonable foreseeability’. Given the above, the Committee agreed that Dr. Wiebe acted in compliance with the College’s standard in all respects.”

Freedom of religion/conscience cases
The Christian Medical and Dental Society of Canada v The College of Physicians and Surgeons of Ontario

The Christian Medical and Dental Society (CMDS) of Canada challenged a policy implemented by the College of Physicians and Surgeons of Ontario that required physicians who declined to provide medical assistance in dying for reasons of conscious or religion must provide an effective referral. The CMDS argued that the policy violated section 2(a) of the Charter, but the ONSC ruled that the policy was constitutionally valid.

See: The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.
See also: The College of Physicians and Surgeons of Ontario Policy Statement #4-16: Medical Assistance in Dying.

Interpreting reasonably foreseeable
What does “reasonably foreseeable” mean?
One of the problems with Canada’s medical assistance in dying legislation is the criteria that a person’s death must be “reasonably foreseeable.”This was the subject of the case A.B. v. Canada (Attorney General), 2017 ONSC 3779.

The definition of “reasonably foreseeable” is discussed in Jocelyn Downie & Kate Scallion, “Foreseeably Unclear: The Meaning of the ‘Reasonably Foreseeable’ Criterion for Access to Medical Assistance in Dying in Canada” (forthcoming in DLJ).

Other issues with interpreting Canada’s medical assistance in dying legislation are discussed in Jocelyn Downie & Jennifer Chandler, “Interpreting Canada’s Medical Assistance in Dying Legislation” (2018) Institute for Research on Public Policy.

Print Friendly, PDF & Email