Legal Report: The Evolution Of Medically Assisted Death – Family and Matrimonial – Canada – Mondaq News Alerts

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The law on medical assistance in death is slowly evolving. Thisyear, after a Quebec Superior Court found the current lawunconstitutional, the federal government introduced newlegislation: An Act to amend the Criminal Code (medical assistancein dying). But there is still a gap between what clients are askingfor in their end-of-life arrangements and what the law according tothe new amendments will allow, say estates lawyers.

Canada has moved in "baby steps" toward medicalassistance in death, says Matt Trotta, a Calgary-based tax, trustsand estates lawyer at Field Law.

"We're getting there slowly. We're moving moretoward what other countries have been doing for a while. . . . Ithink we're on the right track," he says. "And Ithink it's a positive change."

Section 241(b) of the Criminal Code makes it an indictableoffence to "counsel," "abet" or "aid"a person in dying by suicide. Section 14 of the Code makes it acrime for a person to "agree to have death inflicted onthem." Up until 2016, these provisions forbade medicalassistance in death.

But the year before, in Carter v. Canada, the SupremeCourt of Canada found these restrictions were contrary to s. 7 ofthe Charter, which provides for the right to life, liberty andsecurity of the person. The justices decided that denying acompetent adult who "clearly consents to the termination oflife" and suffers from a "grievous and irremediablemedical condition" the right to decide their fate affrontedtheir liberty by interfering with their "bodilyintegrity." Security of the person was compromised throughforcing terminally ill patients to undergo intolerable suffering,they said. The court also reasoned that the laws deprived somepeople of life by forcing them to take their own, prematurely,before their conditions worsened to the point that they'd beincapable of doing so.

The SCC decision was counter to its previous ruling from 1993 Rodriguez v. British Columbia which, thecourt in Carter said, upheld a "blanket prohibition" onmedically assisted death. The change was due to a shift in the"legal conception" of s. 7 including the advanceof the law relating to the principles of overbreadth and grossdisproportionality as well as a new "matrix oflegislative and social facts," said the SCC in the Carterdecision.

Carter forced the feds to act. In 2016, the Liberalgovernment passed amendments to s. 241, adding an exemption formedical professionals providing medical assistance in death. Sincethen, several Charter challenges have emerged contending aspects ofthe legislation and deeming it still too restrictive. On Feb. 24,the federal government announced the introduction of a billamending the law on medical assistance in death. The feds say theirproposed amendments stem directly from the September 2019 QuebecSuperior Court decision Truchon c. Procureurgnral du Canada.

In Truchon, the plaintiffs Jean Truchon andNicole Gladu had been denied medical assistance in deathbecause they fell short of both the federal requirement of having a"reasonably foreseeable death" and the requirement underQuebec's legislation that they be at the "end oflife." They argued that Carter did not require a person befacing imminent death to qualify and such a requirement was counterto their s. 15 right to equality and s. 7 rights. Justice ChristineBaudouin agreed, declaring the 2016 Criminal Code amendments of noforce an effect. Truchon and Gladu were given an exemption to thereasonably foreseeable and end-of-liferequirements.

In response to Truchon, among the proposed changes announced inFebruary is the removal of the requirement that a person be facinga "reasonably foreseeable" death to be eligible, as wellas the inclusion of a waiver of final consent for those near deathand at risk of losing capacity for consent.

"The situation that unfortunately I've seen a coupletimes is where you have a client that is seeking medical assistancein dying, they go through their assessment, they go through theirwaiting period and then, by the time it comes down to giving theirfinal consent, they're already too far gone to do that finalconsent," says Trotta.

He says the new legislation has provided some clarification tomedical practitioners.

"This new bill does have a waiver of final consent and atest on how that works. And I think that's a really importantaddition because it's a big concern for a lot of people who getdiagnosed with Alzheimer's or some sort of neurologicaldegenerative issue. . . . How long do I have to be able to makethese decisions? And what happens if I'm toolate?"

But for those who want to plan for the unknown, who may have afamily history of a degenerative illness but no personal diagnosis,the proposed changes still lack the provision of advancedirectives, says Trotta.

"I think I will have some clients that will be a bitdisappointed that it didn't go far enough and they didn'treally want to tackle some of the some of the bigger issues thatothers countries handle such as advanced decision-making," hesays.

Trotta says advanced directives will be the "nextbattlefront" in the fight for fewer restrictions in medicalassistance in death, noting that it's permitted in othercountries.

Torkin Manes LLP partner Risa Awerbuck says that, although notyet legally binding, she will put provisions in powers of attorneyfor personal care that indicate that, if the client is diagnosedwith an intolerable illness in the future, they want medicalassistance in death. She says she includes this in case thelegislation changes in the future, but at the moment it has nolegal effect.

"Based on how the legislation is drafted, you can't doanything unless you've been diagnosed," says Awerbuck,whose practice focuses on estate planning, including thepreparation of wills, powers of attorney and trusts and estateadministration.

Bruce Hallsor, managing partner at Crease Harman LLP inVancouver, says many of his clients are concerned with theirability to prevent an end-of-life scenario in which they languishin an institution, suffering for a long period of time with noquality of life and no hope for recovery.

"They want to be able to have control over that," hesays. "Obviously, as lawyers, we're always cognizant ofpeople with disabilities, especially mental disabilities and howmuch capacity they have to make those choices. I think most estatelawyers will have encountered situations where grandma's got alot of money, and the next generation wants the money more thanthey want grandma."

Estates lawyers always need to be vigilant against undueinfluence, says Trotta. The new legislation brings in the conceptof an "independent witness" which can be theperson's health-care or personal worker, hesays.

"There's always a risk and whether you're lookingat something like medical assistance in dying or you're lookingat estate planning generally, there's a lot of things that canhappen behind the scenes that people don't see. And it'svery difficult and it's always something that we have to bevigilant about," Trotta says.

1993 Rodriguez v. British Columbia:SCC dismisses application s. 242(b) of Criminal Code banning assisted suicide is invalid on Charter grounds.Medical assistance in dying remains illegal 2015 Carter v. Canada: SCC rules s.242(b) is contrary to s. 7 of Charter, protecting right to life,liberty and security of the person 2016 Parliament of Canada passes federallegislation allowing eligible Canadian adults to request medicalassistance in dying 2019 Truchon v. Procureurgnral du Canada: Quebec Superior Court rulesrequirement of a candidate for medical assistance in death befacing a "reasonably foreseeable death" wasunconstitutional and of no force and effect 2020 (February) Federal government proposes AnAct to amend the Criminal Code (medical assistance in dying), tomake Canada's medical assistance in death lawsCharter-compliant.

Most common underlying medical conditions: #1: Cancer. #2:Neuro-degenerative illness. #3 Circulatory/respiratory illness.

Originally published by Canadian Lawyer May 5, 2020

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Legal Report: The Evolution Of Medically Assisted Death - Family and Matrimonial - Canada - Mondaq News Alerts