Pathways to a National Framework for the Regulation of Physician-assisted Dying

Jocelyn Downie suggests ways of creating a national framework for the regulation of physician assisted dying in Canada.

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On February 6, 2015, the Supreme Court of Canada declared that the Criminal Code prohibitions on physician-assisted suicide and physician-provided voluntary euthanasia violate the Canadian Charter of Rights and Freedoms. Not surprisingly, the Court promptly suspended the effect of this declaration for 12 months to give governments time to put systems in place to deal with the implications of the decision. Many people hope that, within those 12 months, a robust national framework for the regulation of physician-assisted dying will be put in place. Such a framework would ensure access to assisted dying, protect the vulnerable, and reconcile (patients’) right to life, liberty, and security of the person with (physicians’) freedom of conscience. A national framework for the regulation of physician-assisted dying is seen as desirable for a variety of reasons including: that it creates consistency regarding access and standards across the country; it allows for the collection, analysis, and sharing of comparable data; and it is more efficient than the implementation of 13 separate oversight bodies.

However, many are pessimistic about this hope being realized for at least two reasons: 1) the federal Conservative Government seems loathe to act; and 2) Canada has a complex system for the division of powers between the federal and provincial/territorial governments with respect to health and a rocky history of attempts to legislate and regulate on morally complex health matters (e.g., abortion and assisted human reproduction). So, a pressing question is whether any result is possible other than a vacuum (because nobody acts) or a patchwork quilt (because each of the provinces and territories goes their own way).

Van_Gogh_-_Weg_mit_beschnittenen_Weiden

Van Gogh, Path with Trimmed Willow-Trees (1889)

I believe that even with our system of concurrent jurisdiction over health (and, more specifically, as stated explicitly by the Supreme Court of Canada, physician-assisted dying), it is possible to establish a robust national framework for the regulation of physician-assisted dying. Here’s how.

As of February 6, 2016, the Criminal Code prohibitions on physician-assisted dying will no longer apply where provided to:

“a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable’, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.”

For the sake of greatest clarity, this could be made most transparent through a brief Bill revising the Criminal Code to make it explicit that physician-assisted dying is not a criminal offense when provided to individuals who meet the Carter criteria.

Of course, the framework needs more than criteria for access. It also needs procedural safeguards and an oversight system.

National procedural safeguards could be established in at least two ways. First, the federal Parliament could enact legislation setting out the procedural safeguards. These would include, for example, how many doctors need to be involved, and whether a set number of days need to pass between the request for and the provision of the assistance in dying. The provinces/territories could then embrace those standards through “incorporation by reference.” That is, they could pass their own legislation that simply adopts these standards. Alternatively, the provinces/territories could come together and use a version of the well-established Uniform Law Conference process. Through this, a group of government lawyers, private lawyers, academics, and others could draft legislation that each of the provinces/territories could then pass.

A national oversight system could in turn be achieved in at least two ways. First, the federal Parliament could set up a national agency and the provinces/territories could use the mechanism of “administrative inter-delegation” to ensure its uncontested legitimacy. That is, they could delegate their own oversight powers to this entity. Alternatively, the provinces/territories could set up a national agency under the Canada Not-for-Profit Corporations Act with provincial ministers as the “Members” of the Corporation.

Bringing both aspects of the framework together, the federal Parliament could enact legislation setting out the procedural safeguards and setting up an oversight agency. This legislation could include a clause exempting any person or organization from application of the legislation where the province or territory they are in has established a “substantially similar” legislative regime. While Quebec would likely apply for an exemption order for its Act respecting end of life care, the other provinces/territories could simply decide not to introduce their own legislation but rather to embrace a national regulatory approach.

Thus it can be seen that, despite Canada’s complex system of division of powers between federal/provincial/territorial governments, there are ways to establish a national regulatory framework for physician assisted dying in Canada. All that remains is for our legislators to find the political will to do so.

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Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. She was a member of the Royal Society of Canada Expert Panel on End of Life Decision-making and a member of the legal team for the plaintiffs in Carter v. Canada (Attorney General) @jgdownie

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