Bill C-14's Contradictions Cause for Concern and Hope

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), legalizes assisted suicide and euthanasia (AS/E) for competent adults who have a “grievous and irremediable medical condition” and whose deaths are “reasonably foreseeable”. The following is a brief explanation and analysis of the bill.

Purposes in the preamble

In its preamble, the bill “recognizes the autonomy of persons … who wish to seek medical assistance in dying” and notes that it is “important to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled.”

It is perhaps the central conceit of legalized AS/E that we as a society can put some people to death upon request, and even call it health care, without encouraging negative perceptions of those who press on with their debilitating or incurable illness, or without signalling that some lives have less “value” – itself a subjective, relativizing term – than others. This is why CLF has repeatedly stressed the ethical principle that every life is equally inviolable (see, for example, our Supreme Court factum in Carter).

Nevertheless, it is encouraging to find this kind of language in the bill. If and when this law is challenged, perhaps for not allowing AS/E for minors or requiring that a person be in an advanced state of irreversible decline in capacity, it is this kind of language that may help the bill to withstand judicial review. Such language will signal to courts that Parliament considered the long term societal effects of legalizing AS/E and balanced these against autonomy claims. As the Supreme Court said in Carter, “physician-assisted death involves complex issues of social policy and a number of competing societal values” and “a ‘complex regulatory response’ to a social ill will garner a high degree of deference.”

In the same vein, the bill also states in its preamble: “vulnerable persons must be protected from being induced, in moments of weakness, to end their lives”; and, “suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities”. 

Objectives such as these – preventing negative perceptions of the quality of life of the sick and elderly and the harm to families and communities that suicide causes – may contain the seeds for reconsidering Carter, the outcome of which depended on the contestible premise that the existing law was only concerned with protecting vulnerable persons from abuse. Bill C-14, however, does not try to overturn or even to push back on the Carter ruling – never mind the abundance of media criticism saying the bill is too restrictive. If anything, it broadens Carter. Let us examine some particulars.

Who may be exempt from criminal liability?

First: to whom the exceptions in the bill apply. This bill carves out exceptions not only for doctors, but for nurse practitioners, persons who assist a doctor or nurse practitioner to provide AS/E, pharmacists who dispense the lethal drugs, and anyonewho helps a person self-administer a prescribed lethal drug upon their request. Carter, however, dealt exclusively with physician-assisted death. As the trial judge in Cartersaid: “I do not accept that the term ‘physician-assisted’ should include the provision of assistance by persons other than physicians.” The Supreme Court used the same terminology without qualification.

The Carter ruling depended in large part on the finding that doctors have the requisite skill and knowledge to assess patient capacity, to detect undue influence or ambivalence, and to provide accurate diagnoses and prognoses. Absent legislation, Carter would create a common law exception to the criminal ban on assisting a person’s suicide only for physicians. Bill C-14 therefore expands Carter.

The most problematic aspect of this expansion is the exemption for anyone who helps a person self-administer the deadly drug. Once a person receives her poison prescription and brings it home with her, there can be no supervision of how it is used. A vulnerable person might be pressured or tricked into taking the drug once they have them in their home. Prosecuting suspected abuse will be extremely difficult as the Crown would have to prove beyond a reasonable doubt that the deceased person did not request to be given the drug. Moreover, a “reasonable but mistaken belief about any fact that is an element of the exemption” is a sufficient defence. This is no strict, scrupulously monitored safeguard.

Who is eligible to receive AS/E?

Second: the eligibility criteria for the recipient (victim) of AS/E. He must be at least 18, request AS/E voluntarily, give informed consent (not by advance directive), have a serious and incurable illness, disease or disability, be in an advanced state of irreversible decline in capability, suffer enduring physical or psychological suffering that is intolerable to him, and his natural death must be reasonably foreseeable.

Despite complaints among media commentators to the contrary, the eligibility criteria are fairly closely aligned with those contemplated by Carter. Of course, the Supreme Court was insistent that it would not and was not usurping Parliament’s role, so Carter should not be read as requiring or ruling out certain criteria in legislation. What we know from Carter is that a complete ban on assisted suicide was found to infringe on the right to life, liberty, and security of the person in the factual circumstances of the case, which did indeed involve a patient with a serious, incurable illness, in an advanced state of decline, whose natural death was foreseeable, and who was mentally capable at the time.

However, there is a serious lack of precision here. What does it mean that someone’s natural death must be “reasonably foreseeable”? Does it mean that her illness will, with reasonable medical certainty, cause her death? That is, must her condition be terminal? Within what time frame? They say the day you’re born is when you start to die, after all.

What procedural safeguards are required?

Third: procedural safeguards. Here, Carter itself has less to say. Rather, the Supreme Court was satisfied to find that a complete ban was not the least restrictive means of protecting vulnerable people because Parliament could, hypothetically, “very substantially minimize” the risks to vulnerable persons “through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” How those limits should be monitored and enforced the Court does not say. That is up to the other branches of government.

The bill requires independent witnesses when a request for AS/E is made, requires assessment by a second, independent doctor or nurse practitioner, requires a physician to personally inform the pharmacist who fills a prescription of its intended use, and requires informing the patient that they may withdraw their request for AS/E at any time. The bill also requires doctors and nurse practitioners to report requests for AS/E in accordance with regulations to be made by the Minister of Health.

The bill says the Minister may require information related to “requests for and the provision of medical assistance in dying” to be reported “at various stages”. Given that prior authorization from Department of Health official is not required, however, the purpose of the reporting seems to be to allow the government to monitor the provision of “medical assistance in dying” at a macro level, not to ensure compliance with the law in individual cases before AS/E occurs.

What about freedom of conscience?

In its preamble, the bill says that the Government of Canada has “committed to develop non-legislative measures that would support the improvement of a full range of options for end-of-life care [and] respect the personal convictions of health care providers”. On its face, the bill permits physicians, nurse practitioners, their assistants, and pharmacists to provide “medical aid in dying” but does not require them to do so. However, it is easy to imagine, for example, a situation in which an employer expects a nurse to assist a physician in providing this “service” – even if she objects. This bill offers no explicit protection.

The bill also says in its preamble that “the Government of Canada has committed to uphold the principles set out in the Canada Health Act – public administration, comprehensiveness, universality, portability and accessibility – with respect to medical assistance in dying”. This signals that the Government intends to ensure that AS/E is provided as public health care in all provinces, with the possibility that a province would see a reduction in federal funding for failing to provide it. This could result in greater pressure on health care workers to participate.

Legislative protections for freedom of conscience raises jurisdictional questions. Please see our submission (at page 14) to the federal External Panel on Options for a Legislative Response to Carterhere, and our submission to the Government of Ontario, here (at page 7), for ways that both levels of government could protect health care workers’ freedom of conscience.

Minors, the Mentally Ill, and Advance Requests

Bill C-14 does not legalize AS/E for minors or for persons whose sole underlying medical condition is a mental illness. It also does not allow for AS/E by advanced directive. However, the bill commits the Government of Canada to “explore other situations – each having unique implications – in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition”. Carter does not oblige the government do so (in fact, the SCC stated that "euthanasia for minors or persons with psychiatric disorder  was outside the parameters of the decision, para. 111). Nor, strictly speaking, does this part of the bill’s preamble legally oblige the government to do anything, but if it is an accurate reflection of the current government’s intentions, it is cause for concern.