Legislative Background: Medical Assistance in Dying (Bill C-14, as Assented to on June 17, 2016)
Part 1 – Description of Legislation on Medical Assistance in Dying
The development of the legislation on medical assistance in dying (Bill C-14) was informed by the evidence before all levels of court in the Carter case,Footnote 14 by available Canadian and international research, social science evidence, governmental reports and parliamentary studies.Footnote 15 It was also informed by the experience of existing international medical assistance in dying regimes, as well as by numerous recent consultative activities on such assistance, including the work of the Special Joint Committee on Physician-Assisted Dying,Footnote 16 the External Panel on Options for a Legislative Response to Carter v Canada,Footnote 17 the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying,Footnote 18 the Canadian Medical Association,Footnote 19 the College of Family Physicians of Canada,Footnote 20 and the work of provincial colleges of physicians and surgeons, among others. Bill C-14 received Royal Assent on June 17, 2016.
Bill C-14 strikes the most appropriate balance between the autonomy of those individuals seeking access to medical assistance in dying and the interests of vulnerable persons and of society, through amendments to the Criminal Code to allow physicians and nurse practitioners to provide assistance in dying to eligible competent adults in accordance with specified safeguards. The legal effect of the new legislation is to de-criminalize medical assistance in dying and leave further regulation of the practice to the provinces and territories (PTs) should they so choose. Medical assistance in dying has aspects that fall under both federal and provincial jurisdiction. The criminal law aspects of such assistance fall under exclusive federal jurisdiction and apply consistently across the country. The PTs can legislate in relation to the health care aspects and civil law implications so long as PT legislation does not conflict with the criminal law. From a federal perspective, a reasonable degree of consistency across and within provinces and territories would support the underlying values and principles of the Canada Health Act – that is, that all Canadians should have access to needed health care services, which could include services related to medical assistance in dying, without financial or other barriers.
I. Legislative Objectives
The objectives of the legislation are expressly stated in the preamble of Bill C-14 and include:
- recognizing the autonomy of persons who have a grievous and irremediable medical condition that causes them enduring and intolerable suffering to seek medical assistance in dying;
- recognizing that robust safeguards, which reflect the irrevocable nature of ending a life, are essential to prevent error and abuse in the provision of medical assistance in dying;
- affirming the inherent and equal value of every person’s life and avoiding encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled;
- protecting vulnerable persons from being induced, in moments of weakness, to end their lives;
- recognizing that suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities;
- recognizing that permitting access to medical assistance in dying for competent adults whose deaths are reasonably foreseeable strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other;
- recognizing that a consistent approach to medical assistance in dying across Canada is desirable, while recognizing the provinces’ jurisdiction over various matters related to medical assistance in dying, including the delivery of health care services and the regulation of health care professionals, as well as insurance contracts, coroners and medical examiners;
- recognizing that those who wish to access medical assistance in dying should be able to do so without adverse legal consequences on their families;
- recognizing that everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms and that nothing in the Bill affects those freedoms (as amended by the House of Commons Standing Committee on Justice and Human Rights);
- recognizing the Government of Canada’s commitment to working with provinces, territories and civil society to facilitate access to palliative and end-of-life care, care and services for individuals living with Alzheimer’s and dementia, appropriate mental health supports and services and culturally and spiritually appropriate end-of-life care for Indigenous patients (as amended by the House of Commons Standing Committee on Justice and Human Rights).
The preamble also affirms the Government’s commitment to uphold the principles set out in the Canada Health Act and to develop non-legislative measures to support the improvement of a full range of options for end-of-life care and respect the personal convictions of health care providers. In this regard, the Minister of Health has committed to develop, in collaboration with the PTs, an end-of-life care coordination system to provide information on options and facilitate patient access to care.
The legislative objectives in the preamble speak to the circumstances for which medical assistance in dying would be made available, but they also speak to the reasons why access would not be permitted in other circumstances. For example, the objective of recognizing that suicide is a public health issue helps to explain why medical assistance in dying is not presently being contemplated for people who are not approaching a natural death. To permit it in circumstances where a person is not approaching natural death could be seen as undermining suicide prevention initiatives and normalizing death as a solution to many forms of suffering.
That said, the preamble also recognizes the Government of Canada’s commitment to explore additional circumstances in which a person may seek access to medical assistance in dying, namely requests by mature minors, advance requests, and where mental illness is the sole underlying medical condition. These circumstances are complex, and require additional study and consideration. The Bill requires the Minister of Justice and the Minister of Health to initiate one or more independent reviews on these three issues no later than 180 days after Bill C-14 receives royal assent (amendment from the House of Commons Standing Committee on Justice and Human Rights) and must report back to Parliament no later than 2 years after the reviews are initiated (amendment from the Senate).
Bill C-14 enacts new definitions in the Criminal Code for the purpose of the national medical assistance in dying regime. (see Annex 1 for a clause by clause guide to Bill C-14). The new section 241.1 (clause 3 of the Bill) is a central provision of the regime as it defines the umbrella term ‘‘medical assistance in dying’’ as encompassing what is commonly called voluntary euthanasia (i.e., the administration by a medical practitioner or nurse practitioner of medicationFootnote 21 that will cause a person’s death at their request) and assisted suicide (i.e., the prescription or provision by a medical practitioner or nurse practitioner of medication that a person could self-administer to cause their own death). It should be noted that, in the case of what is commonly called voluntary euthanasia, the provision of medical assistance in dying would result directly in the patient’s death, whereas in the case of assisted suicide, the provision of such assistance would result in the patient obtaining medication that they could choose to use – or not – to end their life. This difference is reflected in the new criminal exemptions, as set out below.
With respect to health care professionals, who are regulated under PT responsibility, the new section 241.1 defines the terms ‘‘medical practitioner’’ and ‘‘pharmacist’’ as those who are entitled to practise medicine or pharmacology under provincial laws (e.g., licensed professionals who are members of provincial colleges of physicians and surgeons or provincial colleges of pharmacists).Footnote 22 Although the term “physician” or “doctor” is more plain language in English, the term “medical practitioner” is already used in several places in the Criminal Code, and so is adopted to ensure consistency within the Criminal Code. The term “nurse practitioner” is defined in the Bill as a registered nurse who is designated as a nurse practitioner or other equivalent title, and who is entitled to autonomously make diagnoses, interpret tests, prescribe medications and treat individuals.
III. Criminal Exemptions
It is a crime to intentionally cause the death of another person, even if they consent to die (section 14 of the Criminal Code). The Bill therefore enacts a new exemption from criminal liability for culpable homicide for medical practitioners and nurse practitioners who provide medical assistance in dying in the form of what is commonly called voluntary euthanasia, i.e., the administration of medication to a person, at their request, that causes their death (new section 227(1) of the Criminal Code, in clause 2 of the Bill). The Bill also creates an additional and related exemption for any other person who does anything in order to help a physician or nurse practitioner provide such assistance. The latter category includes, for instance, a social worker who is asked to meet with the patient to help assess the voluntariness of their request, a lawyer to a hospital who is asked to review the documents to verify compliance with the law, or a pharmacist who fills the prescription for the medication to be administered by a medical practitioner or nurse practitioner to the patient.
The Bill also re-enacts the legal rule (section 14 of the Criminal Code – Clause 1 of the Bill) that says that a person’s consent to die is not a defence for someone who inflicts death on them. This rule was found to be unconstitutional in Carter. At the same time, the Bill clarifies that this legal rule does not apply in the case of a person who receives medical assistance in dying in conformity with the new regime (new subsection 227(4) of the Criminal Code – Clause 2 of the Bill). In all other circumstances, causing the death of a person who consented to die continues to be a crime.
Aiding a Person to Die by Suicide
It is a crime to assist a person to die by suicide, whether or not suicide ensues (paragraph 241(b) of the Criminal Code). Assistance can be in the form of providing information about how to end their life, or providing a tool or other means that could be used. The Bill therefore enacts criminal exemptions for the offence of aiding a person to die by suicide for medical practitioners, nurse practitioners and people who would assist them in providing or dispensing medication to eligible persons. The person could self-administer the medication to cause their own death, either at that time or at a later time of their choosing (new subsections 241(2) and 241(3) of the Criminal Code – Clause 3 of the Bill).
The Bill recognizes that after a person receives the prescription from the physician or nurse practitioner (which meets the definition of medical assistance in dying in the Criminal Code as explained above), they may still need various forms of assistance depending on their state of health. For instance, they may need someone to collect the medication from the pharmacy, to open the bottle that contains such medication, or to lift a glass of water to their mouth so that they can swallow it. As these forms of conduct are prohibited under the offence of aiding a person to die by suicide, additional exemptions are provided in the Bill to address this type of assistance.
Specifically, pharmacists who fill a prescription for the purpose of medical assistance in dying and give the medication directly to the patient or to another person on their behalf, is exempted for this conduct (new subsection 241(4) - clause 3 of the Bill). Similarly, any person who helps the patient to self-administer the medication is also exempted from criminal responsibility (new subsection 241(5) – clause 3 of the Bill). Any person helping someone to self-administer the medication should exercise extreme caution however, as the decision to self-administer, and the final actions of doing so, must be those of the patient for whom the medication was prescribed. In any other circumstance, there would remain a risk of criminal prosecution.
Finally, the Bill re-enacts the offence of aiding a person to die by suicide, and this conduct continues to be criminal in all circumstances other than those described in the medical assistance in dying regime under the Criminal Code.
Clarification regarding the provision of information on medical assistance in dying
For greater certainty, the Bill clarifies that no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying (provision added by the House of Commons Standing Committee on Justice and Human Rights).
“Reasonable but mistaken belief”
For greater certainty, the Bill codifies a common law principle to clarify that the exemptions still apply even if the practitioners, or other exempted individuals, have a reasonable but mistaken belief about some relevant fact; for example, whether the person is 18 years of age and is therefore eligible to receive medical assistance in dying (new subsections clauses 227(3) and 241(6) in clauses 2 and 3 of the Bill). These will essentially function as a “good faith” defence for those who participate in medical assistance in dying.
IV. Eligibility Criteria for Medical Assistance in Dying
Bill C-14 enacts a new section 241.2 of the Criminal Code, which in essence sets out the criminal rules surrounding the provision of medical assistance in dying. New subsections 241.2(1) and 241.2(2) set out the eligibility criteria for such assistance in Canada. Under the new federal legislation, medical assistance in dying is available to a person who meets all of the following criteria (subsection 241.2(1)):
- being an adult (at least 18 years old) who is mentally competent (“capable”) to make health care decisions for themselves;
- having a grievous and irremediable medical condition (as defined under subsection 241.2(2));
- making a voluntary request for medical assistance in dying which does not result from external pressure;
- giving informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care; and,
- being eligible for health services funded by a government.
A grievous and irremediable medical condition is expressly defined under the Bill as (subsection 241.2(2)):
- having a serious and incurable illness, disease or disability; and,
- being in an advanced state of irreversible decline in capability; and,
- experiencing enduring physical or psychological suffering, due to the illness, disease, disability or state of decline, that is intolerable to the person and cannot be relieved in a manner that they consider acceptable; and,
- where the person’s natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without requiring a specific prognosis as to the length of time the person has left to live.
These eligibility criteria enable individuals who are intolerably suffering, in an advanced state of irreversible decline in capability, and who are on a path towards their natural death, to have the option of a peaceful medically-assisted dying process, instead of having to endure a painful, prolonged or undignified one. It enables them to make a fundamentally personal decision concerning their bodily integrity, autonomy, and dignity, which could also help prevent them from ending their lives prematurely, by providing reassurance that they will have access to medical assistance in dying at a time when they may be unable to end their own life without assistance. Individuals have to be able to provide informed consent when eligibility is assessed and confirm their consent one last time immediately before medical assistance in dying is provided.
In Carter, the Court expressly stated that the scope of its declaration was “intended to respond to the factual circumstances” of the caseFootnote 23 and that it made “no pronouncement on other situations where physician-assisted dying may be sought”.Footnote 24 The eligibility criteria in Bill C-14 directly responds to the factual circumstances raised in Carter. The individuals whose cases were considered by the Court were either in physical decline and nearing death in the late stages of a fatal disease, or were otherwise nearing the end of their lives while in decline due to a condition that was not fatal in itself. This approach is also consistent with the Court’s comparison of medical assistance in dying with other forms of end-of-life care,Footnote 25 i.e., medical assistance in dying becomes another end-of-life option, in addition to palliative care and palliative sedation for instance, for intolerably suffering individuals whose deaths are reasonably foreseeable. The Court also recognized that assisted dying is a complex issue involving various interests, that a number of solutions were possible, and that Parliament’s response would receive a high degree of deference.Footnote 26 (see Annex B for more information)
The criterion of reasonable foreseeability of death is intended to require a temporal but flexible connection between the person’s overall medical circumstances and their anticipated death. As some medical conditions may cause individuals to irreversibly decline and suffer for a long period of time before dying, the eligibility criteria do not impose any specific requirements in terms of prognosis or proximity to death (e.g., a six month prognosis as the U.S. states’ medical assistance in dying laws require). The medical condition that is causing the intolerable suffering does not need to be the cause of the reasonably foreseeable death either. In other words, eligibility is not limited to those who are dying from a fatal disease. Eligibility needs to be assessed on a case-by-case basis, with flexibility to reflect the uniqueness of each person’s circumstances, but with limits that require a natural death to be foreseeable in a period of time that is not too remote. It should be noted that people with a mental illness or physical disability are not excluded from the regime, but will only be able to access medical assistance in dying if they meet all of the eligibility criteria.
The requirement for the person to be eligible to receive publicly funded health services is intended to prevent foreigners from visiting Canada to obtain medical assistance in dying.
In Carter, the Court acknowledged that there are inherent risks in permitting medical assistance in dying, but agreed with the trial judge that these risks “can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced”.Footnote 27 As enacted in other jurisdictions that have medical assistance in dying, robust procedural safeguards are a critical component of any carefully-designed regime and are essential to prevent error and abuse from occurring and to protect vulnerable persons.
Consistent with the Court ruling and the Special Joint Committee’s recommendations on safeguards, Bill C-14 enacts mandatory procedural safeguards that medical practitioners and nurse practitioners will be required to follow before providing medical assistance in dying to a person. These safeguards require the medical practitioner or nurse practitioner to:
- confirm that the person meets all eligibility criteria for medical assistance in dying;
- ensure that the person’s request was made in writing after the person was informed that he or she has a grievous and irremediable medical condition and be satisfied that it was signed and dated in the presence of two independent witnesses who also signed and dated the request;
- ensure that the person was informed that they may withdraw their request at any time and in any manner;
- ensure that a second independent medical practitioner or nurse practitioner provided a written opinion confirming the person’s eligibility;
- ensure that a period of at least 10 clear days has elapsed between the moment the written request was signed and the provision of medical assistance in dying (unless both practitioners agree that death or loss of capacity to consent is imminent);
- immediately before providing such assistance, confirm the person’s consent; and,
- if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.
In order to be considered independent, the witnesses cannot be beneficiaries under the will of that person or otherwise benefit from their death, or be involved directly in giving care to the person, among other criteria (new subsection 241.2(5) – clause 3 of the Bill). With respect to the independence of the first medical practitioner or nurse practitioner from the second one, the Bill provides that they cannot be connected to each other in any way that could impair their objectivity, such as by being in a mentoring relationship with each other. They also need to be independent of the patient, in the sense that they cannot be beneficiaries under his or her will, or be otherwise connected to them in a manner that could affect their objectivity (new subsection 241.2(6)). However, the legislation makes clear that standard compensation for providing medical services does not affect the physician or nurse practitioner’s independence.
The Bill also makes provision for individuals who are unable to sign their own request, by enabling them to ask a capable adult, who is not directly involved in providing health care services to them, to sign and date their request in their presence, on their behalf and under their express direction (new subsection 241.2(4)). The “proxy-signer” must not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death (amendment from the Senate).
In order to fall within the exemption, the medical practitioner or nurse practitioner is also required to act with reasonable knowledge, care and skill, in accordance with applicable provincial laws, rules or standards (new subsection 241.2(7)), and to inform the pharmacist whenever medication is sought or prescribed for the purposes of medical assistance in dying (new subsection 241.2(8)).
Finally, new subsection 241.2(9) clarifies that, for greater certainty, nothing in section 241.2 compels an individual to provide or assist in providing medical assistance in dying. This subsection was added by the House of Commons Standing Committee on Justice and Human Rights at the same time as the amendment to the preamble to recognize that everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms and that nothing in the Bill affects those freedoms. Both amendements aim to reinforce that nothing in Bill C-14 compels anyone to act against their deeply held beliefs.
VI. Monitoring System
As recognized by the Court in Carter, by the Special Joint Committee’s report, as well as by many stakeholders, a pan-Canadian monitoring system to collect and analyze data on the provision of medical assistance in dying across Canada, to monitor trends and provide information to the public on the implementation of the new law, is a critical component of the new Canadian regime. Such a monitoring system is essential to foster transparency and public trust in the system.
Bill C-14 requires the Minister of Health to make regulations that she considers necessary to establish a system for monitoring requests for, and the provision of, medical assistance in dying in Canada. Such regulations may include: information to be provided by medical practitioners, nurse practitioners or pharmacists to a designated body; the form, manner and time in which the information must be provided; the collection of information from coroners and medical examiners; details about how the data would be analyzed, interpreted, and reported to the public; and rules for the protection and disposal of such information (new subsection 241.31(3) – clause 4 of the Bill). Subsection 241.31(3.1) was also added by the House of Commons Standing Committee on Justice and Human Rights to require the Minister of Health, in cooperation with provinces and territories, to establish guidelines on information to be included on death certificates, including how to identify medical assistance in dying as the manner of death, as well as the underlying illness, disease or disability.
Filing Obligations and Related Offences
To enable the monitoring regime to operate effectively, Bill C-14 also creates a legal obligation for medical and nurse practitioners who receive a written request for medical assistance in dying to provide information as prescribed in regulations (new subsection 241.31(1)). Pharmacists are also required to provide information in relation to their provision of medications used for such assistance (new subsection 241.31(2)). Bill C-14 enacts a hybrid offence – punishable by a maximum of 2 years imprisonment – for failure to comply with the reporting obligations, and for any person who knowingly breaches the regulations. The reporting obligations and related offences will be brought into force at a later date than the rest of the Bill, once the detailed regulations on the monitoring regime are in place.
Coming into force
The provision requiring the making of regulations on monitoring, and the associated legal obligations of medical practitioners, nurse practitioners and pharmacists to provide information in accordance with the regulations, will come into force no later than 12 months after royal assent.
VII. Other Offences
To ensure compliance with the new medical assistance in dying legislation, and given the serious and irrevocable nature of helping people die and the potential for criminal liability for medical professionals, the Bill enacts new hybrid offences for failure to comply with the mandatory safeguards (new section 241.3), and for forging or destroying documents related to assistance requests with criminal intent (new section 241.4). For instance, a person might destroy a written medical assistance in dying request in order to block someone’s access to such assistance or to interfere with a medical practitioner’s ability to rely on an exemption, or they might forge the signature of a person they were trying to influence to seek assistance. These offences are punishable by a maximum term of imprisonment of five years, where prosecuted on indictment, and to a maximum term of 18 months on summary conviction.
VIII. Related Amendments
Bill C-14 enacts related amendments to other statutes to ensure that recourse to medical assistance in dying does not affect pensions under the Pension Act or benefits under the Canadian Forces Members and Veterans Re-establishment and Compensation Act. It also amends the Corrections and Conditional Release Act to ensure that no investigation need be conducted under section 19 of that Act as a result of a person dying with medical assistance.
IX. Parliamentary Review
The Bill includes a mandatory legislative review to take place five years after its coming into force. The medical assistance in dying legislation will be referred to a designated parliamentary committee of the House of Commons, the Senate or both Houses of Parliament. The committee will be mandated to review all provisions of Bill C-14, as well as the state of palliative care in Canada, and submit a report to Parliament including a statement setting out any changes to the provisions that the committee recommends. It could also consider any reports that would be published under the monitoring regime. The parliamentary review could assess whether the new regime is meeting its legislatives objectives, how medical assistance in dying is being implemented across Canada, and identify areas of potential changes and improvements, if necessary.
X. Areas for Further Study
Clause 9.1 was added to Bill C-14 in order to create a statutory obligation on the Ministers of Justice and Health to initiate, no later than 180 days after the day on which this Act receives royal assent, one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition (amendment from the House of Commons Standing Committee on Justice and Human Rights). The Ministers of Justice and Health must report back to Parliament on these independent studies no later than 2 years after the reviews are initiated (amendment from the Senate).
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