Jocelyn Downie warns that Quebec’s legislation will leave some physician-assisted death legal but unregulated.
In June 2014, the Quebec National Assembly passed An Act respecting end-of-life care, which will come into force in December 2015. Under the Act, “’medical aid in dying’ means care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.” In order to obtain medical aid in dying under the Act, a person must:
29(1) be an insured person within the meaning of the Health Insurance Act (chapter A-29);
(2) be of full age and capable of giving consent to care;
(3) be at the end of life;
(4) suffer from a serious and incurable illness;
(5) be in an advanced state of irreversible decline in capability; and
(6) experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.
On February 6, 2015, the Supreme Court of Canada declared that the Canadian Criminal Code prohibitions on physician-assisted death (including both physician-assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. The Court then suspended the effect of that declaration for 12 months to give the federal, provincial, and territorial governments time to design and implement a regulatory framework for physician-assisted death. As a result, on February 6, 2016, the Criminal Code will no longer prohibit physician-assisted death for 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.
Note two significant differences between the Supreme Court of Canada decision and the Quebec Act. First, the Supreme Court of Canada decision renders both physician-assisted suicide and voluntary euthanasia legal while the Quebec Act regulates only voluntary euthanasia. Second, the Supreme Court of Canada criteria are considerably broader than the Quebec criteria. Most notably: (a) under the Supreme Court of Canada criteria, a person need not be “at the end of life”; and (b) under the Supreme Court of Canada criteria, the suffering must be “enduring” while under the Quebec criteria, the suffering must be “constant.”
The differences are understandable for two reasons. First, Quebec advanced its Act under its constitutional powers re: health and, because of its explicit inclusion in the Criminal Code, assisted suicide is harder to characterize as health than criminal law. Second, Quebec may have wanted to be particularly cautious (hence narrow) in establishing its criteria as the first Canadian jurisdiction to venture into the arena of assisted death.
However, to allow these differences to stand after February 6, 2016 would be very dangerous. As of December 2015, voluntary euthanasia that meets the Quebec criteria will be regulated in Quebec. Quebec’s Act establishes procedural safeguards to ensure that the criteria for access have been met and requires reporting of all cases of medical aid in dying. But in February 2016, physician-assisted suicide will no longer be criminal and yet it will not be regulated under the Act.
Furthermore, voluntary euthanasia that doesn’t meet the Quebec criteria but meets the Supreme Court of Canada criteria will also no longer be criminal and will also not be regulated under the Act. The procedural safeguards and oversight system will not apply to voluntary euthanasia for individuals who are not “at the end of life.” And yet this is arguably the very category of voluntary euthanasia for which there should be the greatest amount of safeguards and oversight.
Fortunately, there is a remedy. Now that the Supreme Court of Canada has made it clear that physician-assisted death will not be criminal where certain criteria are met, the Quebec National Assembly should ensure that all physician-assisted death that meets the Supreme Court of Canada criteria are regulated under the Act.
The Quebec National Assembly can achieve this result by making three revisions to the Act.
First, redefine “medical aid-in-dying” so as to include physician-assisted suicide:
“medical aid-in-dying” means physician-assisted suicide and voluntary euthanasia that is performed by a medical practitioner.
“physician-assisted suicide” means the act of intentionally killing oneself with the assistance of a medical practitioner who provides the knowledge, means, or both.
“voluntary euthanasia” means the intentional termination of the life of a person, by another person, in order to relieve the first person’s suffering and performed in accordance with the wishes of a competent individual.
Second, replace s.29(3) and (5) with the following:
(3) suffer from a grievous and irremediable medical condition (including an illness, disease or disability);
Third, replace “constant” in s.29(4) with “enduring”.
It is essential that the Quebec National Assembly recognize the problems identified above and, before February 6, 2016, fill the looming regulatory gaps with respect to physician-assisted death.
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