Canadians may now legally access assisted suicide under provided guidelines. This blog is prepared to answer questions one may when arranging for their powers of attorney and end of life care.
Case law provides that respecting patient autonomy recognizes a patient’s authority over their bodily integrity and their right to accept or refuse a healthcare intervention.
In 2015, the Supreme Court of Canada struck down the federal prohibition on physician-assisted dying. In response, Parliament passed Bill C-14 formally legalized assisted dying and how it can be accessed without violating the Canadian Charter of Rights and Freedoms.
Currently there are two types of medical-assistance in dying permitted in Canada. First, a physician or nurse practitioner can directly administer a substance that causes the death of the person who has requested it. In the second, a physician or nurse practitioner can give or prescribe a patient a substance that they can self-administer to cause their own death.
There are certain criteria the patient and the two independent health care professionals must meet before evaluating if a patient qualifies. Medically assisted death provisions in a Power of Attorney have no current legal effect. They merely convey the wishes, values and beliefs of the person.
Who is eligible for physician-assisted death under Canadian law?
The person making the request for physician-assisted suicide must:
- The patient must be eligible for government-funded health insurance in Canada;
- The patient must be eighteen years of age or older;
- The patient must have a grievous and irremediable condition, as defined by section 241.2(2) of the Criminal Code;
- The patient must have made a voluntary request for physician-assisted death that was not made as a result of external pressure or undue influence;
- The patient must give informed consent to receive the physician-assisted death after being informed of the means that are available to relieve their suffering, including palliative care.
Bill C-14 provides the definition to meet a “grievous and irremediable medical condition”. The following are the requirements to meet the definition:
- The patient must have a serious and incurable illness, disease, or disability;
- The patient must be in an advance state of irreversible decline in capability;
- The patient must endure physical and psychological suffering that is intolerable to them; and
- A natural death has become reasonably foreseeable.
More importantly, at the time of the request, the patient must also be capable of providing informed consent.
How to submit your request for physician-assisted death under Canadian law?
After meeting all the eligibility requirements and consenting to assisted death without any external pressures, they must submit a written request in the presence of two independent witnesses.
To qualify as an independent witness under the law, a person:
- A person must be eighteen years of age or older;
- A person must understand the nature of a request for physician-assisted death;
- A person must not be an owner or operator of the healthcare facility or home where the applicant is being care for or resides;
- A person must not be directly involved in providing health or personal care to the person making the request;
- A person must not know or believe that they are named in the person’s will or stand to receive any financial or material benefit from resulting from the person’s death.
After the patient submits the written request, there is a mandatory reflection period of at least ten days that needs to occur before the medical practitioner approves the physician-assisted death.
During the reflection period, the patient’s doctor or nurse practitioner must evaluate if the patient is eligible to submit the request of physician-assisted death.
The Bill does not compel medical practitioners or nurse practitioners to aid a patient in dying or to refer a patient to another medical practitioner who would. Nonetheless, provincial guidelines are available in Ontario to strongly encourage medical practitioners to make “effective referral” to an available, accessible physician or agency.
A second doctor or nurse practitioner, independent of both the first doctor and the patient is required to give a second opinion on the patient’s eligibility. The physician-assisted death can be granted only after the approval of both medical practitioners.
Can a person make an advance request for assisted dying?
The issue in most cases arises when the patient is no longer competent at the time when the request for a medically assisted death is carried out. Contrary to other jurisdictions like Belgium and Luxembourg, Canada does not allow for advance requests for assisted dying to carry out after the patient loses the capacity to consent. Advance requests for assisted dying are nevertheless refused in fear that a patient will receive an assisted death against their wishes. Moreover, the court may challenge the knowledge of the patient regarding the content or understanding of an advance request provision in a power of attorney for personal care.
This has led to adverse consequences for patients. As a result, patients choose to reduce or even refuse pain medication out of fear that they will be too impaired to provide their final consent for physician-assisted dying. However, when the pain is too great, patients must abandon their request for physician-assisted dying to keep their pain under control. Otherwise, patients have requested for the assisted death by their physicians earlier than they would have wanted.
The current state of the law only allows for advance directives with regard to the course of treatment to include in the power of attorney for personal care. Despite a written request, the substitute decision-maker or the power of attorney for personal care cannot submit for physician-assisted suicide when you lack the capacity to consent.
Medically Assisted Death Provision
As mentioned earlier, a medical assisted-suicide provision in a Power of Attorney for personal care has no legal effect. It must be noted that a substitute decision-maker cannot provide consent for medically assisted death. Consent for medically assisted death must be provided by the competent adult.
However, such a provision could provide evidence of person’s wishes and beliefs in those circumstances where a request for an assisted death is under review. Medical assisted-suicide provisions could prove useful when the patient becomes incapable between the Date of Request and the date of the scheduled assisted death.
We will continue to wait to see what federal lawmakers legislate and if this means that such medically assisted death provisions in powers of attorney could have legal effect and update this blog accordingly.
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