Tag: Medical Assistance in Dying
I recently blogged on a case arising out of Nova Scotia, addressing the question of whether or not a third party can block an eligible person from accessing MAID (Medical Assistance in Dying).
An elderly couple, previously referred to as X and Y, now identified as Katherine Sorenson and Jack Sorenson, were engaged in a heartbreaking dispute – Mr. Sorenson, who has COPD and has been found eligible to access MAID, wants to die, and his wife, Mrs. Sorenson, does not want to let him.
In July, 2020, Mrs. Sorenson brought an application, arguing that her husband did not meet the eligibility requirements for MAID. Shortly thereafter, she sought an interlocutory injunction to prevent the MAID procedure from going ahead, a request that was rejected by Justice Peter Rosinski. Mrs. Sorenson appealed her decision to the Nova Scotia Court of Appeal.
That appeal was heard at the end of September, and the unanimous decision was rendered October 2, 2020. The Court found that it has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment, as those decisions should be left to approved healthcare assessors. In reaching this decision, the Court explained that the legislative history giving rise to the Criminal Code amendments that permit MAID, establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments. In doing so, Parliament made clear that the role rests with approved healthcare assessors.
Further, while the Court agreed with Mrs. Sorenson, that there are a variety of contexts where the courts have the ability to assess whether individuals have capacity (with regard to decision making surrounding property and personal care, for example), courts simply do not have the institutional capacity to review challenges to eligibility assessments “in a manner that respects the urgency inherent in a MAID context.” The court saw this matter as a clear example that demonstrates a scenario where an individual, having already been found eligible for MAID (which includes experiencing enduring suffering), would be forced to wait extended periods of time, by virtue of the involvement of the court. This would include waiting on the outcome of production motions, discoveries, and court hearings where health professionals and others are required to testify, among other procedural steps.
The Court ultimately determined that Mrs. Sorenson failed to raise a justiciable issue, and dismissed her appeal. However, after providing this conclusion, the Court provided further comment on Mrs. Sorenson’s standing, determining that she did not have private or public standing to challenge Mr. Sorenson’s MAID eligibility assessment. The Court held that while, as his spouse, Mrs. Sorenson undoubtedly loves Mr. Sorenson deeply, and wants what she feels is best for him, “…those feelings do not give her standing to challenge the determination that he meets the eligibility criteria for MAID…the Supreme Court of Canada in Carter recognized personal autonomy in medical decision-making was to be respected and protected.” Therefore, the Court concluded that permitting Mrs. Sorenson standing to question the outcome of Mr. Sorenson’s MAID assessment, would fail to acknowledge this fundamental right of her husband.
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Previously, I blogged on Medical Assistance in Dying (MAID) and the changes to the Criminal Code proposed by Bill C-7, which sought to provide for assisted deaths where a natural death is not “reasonably foreseeable”. The changes would have included the potential to waive the requirement that late-stage consent be obtained immediately prior to MAID.
The proposed amendments contained in Bill C-7 sought to address the concern that people who qualified for MAID were faced with a difficult decision – ending their life earlier than they wanted so as to ensure they possessed the requisite capacity to consent to MAID, or, risking that should they wait to access MAID, they could lose capacity and therefore eligibility for MAID. This scenario was the reality of Nova Scotian, Audrey Parker, who campaigned heavily to change the late-stage consent requirement, however, ultimately accessed MAID earlier than she wanted so as to ensure that she would not lose eligibility as a result of declining capacity. Bill C-7 is now known as “Audrey’s Amendment”.
Parliamentary review of the Bill was scheduled to occur in June, 2020. However, with the global impact of COVID-19 and the current proroguing of Parliament, the Bill has yet to become law.
While we wait for Parliamentary review of the Bill, a new and novel question has been raised once again out of Nova Scotia – can you prevent someone else from accessing MAID, even when they have been found eligible under the law? This question has been raised in the context of an elderly couple – called X and Y — grappling with these issues – X wants to die, and his wife of 48 years, Y, does not want to let him. Y attempted to seek an injunction, preventing X from accessing MAID, though he had already qualified for MAID. X is concerned that the delay caused by Y’s filings could risk him losing capacity and therefore eligibility to access MAID – a concern that could be addressed if late stage consent could be waived. However, as Bill C-7 has yet to become law, the proposed amended provisions cannot assist X.
As reported by The Star, in seeking the injunction, Y must make a case for “irreparable harm.” From Y’s perspective, should the injunction fail, her irreparable harm is the death of her husband. From X’s perspective, going on living would be worse. A hearing in X and Y’s case was scheduled for August 26, 2020.
Jocelyn Downie, professor and the James Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University has offered her opinion: “…it’s straightforward in law and what the answer should be, which is: No, a third party doesn’t get to go to court and prevent somebody from having access to something that the Supreme Court of Canada said we have a Charter right to access.”
We will continue to watch and keep our readers updated as this case develops.
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Medical Assistance in Dying: Breaking down Bill C-7 and the Federal Government’s Proposed Amendments
At the end of January, my colleague, Nick Esterbauer, posted a blog series on recent developments in medical assistance in dying (MAID), with a particular focus on the September, 2019 decision of the Quebec Superior Court of Justice.
In Truchon c Procuruer général du Canada, the court declared sections of the federal and Quebec laws on medically-assisted dying, unconstitutional. The court took specific concern with the Criminal Code requirement that a natural death be “reasonably foreseeable” in order to be eligible for assisted death.
As discussed in Nick’s previous blog, rather than appeal the decision, the federal government announced that it would be proposing legislative amendments.
Those proposals were introduced by way of Bill C-7 to the House of Commons on February 24, 2020. In order to provide for assisted deaths where a natural death is not “reasonably foreseeable,” the Bill proposes the following changes and framework:
- two independent practitioners must confirm that all eligibility criteria is met, and, one of the two practitioners must have expertise in the condition causing the patient’s suffering;
- the person must be informed of, and offered consultations on all counselling, mental health, and disability supports, including community services and palliative care available to them; and
- the two practitioners must agree that the person requesting MAID has “appropriately considered” their options.
The Bill also proposes the following changes:
- The written request (whether the death is reasonably foreseeable or not), need be witnessed by one, rather than two people, which would now (if the Bill is passed) include those directly involved in providing health care services or personal care to the person making the request (except for those health care workers who will be providing the medical assistance in dying to the person, or who have provided an opinion regarding the eligibility criteria);
- The reflection period, previously 10-days in length, will be removed in relation to cases where death is reasonably foreseeable. Where natural death is not reasonably foreseeable, the Bill proposes a 90-day period of assessment (which can be shortened if the person’s loss of capacity is deemed imminent);
- In cases where death is reasonably foreseeable, patients would be able to waive the requirement to consent immediately before the procedure, if consent is given in advance, the procedure has been scheduled, and the person is informed that they may not be able to provide consent at the time of the procedure. In cases where death is not reasonably foreseeable, those patients will still need to confirm consent in order to receive the procedure;
- The Bill also seeks to clarify the information pharmacists (and pharmacist technicians) have to provide when dispensing a substance for an assisted death, as well as to expand the data collected by medical practitioners, those responsible for preliminary assessments regarding the patients eligibility, and pharmacists/technicians.
Parliamentary review of the Bill is scheduled to occur in June of this year. More information on medical assistance in dying can be found on the Government of Canada’s webpage here. For a discussion on the possible impact MAID may have on a will challenge, click here.
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Other blogs that may be of interest:
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
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In many respects the law of Quebec differs from that of other provinces. In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.
In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable. The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable. The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed. The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome. Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.
The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms. While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.
Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter. The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”
The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional. The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.
Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional. Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect. Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.
As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.
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Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.
Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history. Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.
As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria. Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered. Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.
In some parts of the country, MAID is already accessed at significant levels. In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.
Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.
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Other blog posts that may be of interest:
As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.
Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:
1) directly administer the substance that causes death (e.g. an injection of a drug); or
2) provide or prescribe a drug that is self-administered to cause death.
In order to be eligible for MAID, one must meet all of the following criteria:
- be eligible for publicly-funded health services in Canada;
- be at least 18 years of age and capable of making their own health care decisions [emphasis added];
- have a grievous or irremediable medical condition;
- make a voluntary request for MAID; and
- give consent to receive MAID after being provided with all of the information necessary to make the decision.
For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.
Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.
Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.
In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.
By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.
According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.
This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.
To learn more about Mr. Garlock’s story, please see CBC’s recent article here.
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Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give 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.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
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Other blog entries that may be of interest:
Section 241.1 of the Criminal Code sets out a detailed procedure for determining when medical assistance in dying can be provided. However, the medical and legal communities are still grappling with the application of the provisions.
In A.B. v. Canada (Attorney General), 2017 ONSC 3759 (CanLII), two physicians concluded that AB met the criteria for a medically assisted death. A third doctor, however, did not, as he felt that AB did not meet the Criminal Code requirement that a natural death was reasonably foreseeable. Although only two medical opinions are required, the opinion of the third doctor had a chilling effect on one of the other physicians, who declined to provide assistance to AB for fear of being charged with murder.
AB then applied to court for a determination that she met the requirements of the Criminal Code, and a declaration that she may receive medical assistance in dying.
Justice Perell, who had previously considered the issue of assisted death in another proceeding, heard the application.
Ontario and Canada took the position that a declaration should not issue, as the regime established by the Criminal Code does not require judicial pre-authorization. Further, the civil courts should not issue a declaration as such a declaration would interfere with the prosecutorial discretion of the Crown by predetermining criminal liability.
Justice Perell agreed with the position of Ontario and Canada. However, he felt that their position was “as unhelpful as it is technically correct.” The practical effect of such a position was that AB qualified for medically assisted death, but no physician was prepared to assist.
In his decision, Perell J. thoroughly reviews the legislative history of medical assistance in dying. He agrees that it is the medical practitioner and not the court that is to decide whether the Criminal Code criteria are satisfied. He agrees that the court cannot make the decision for them.
However, Perell J. expresses that some form of declaration would be “useful” and have “utility”.
Perell J. walks a fine line in his decision. He accepts that the court is not to make declarations that the Criminal Code criteria for assisted death are met: that must be done by the medical practitioner or nurse practitioner: s. 241.2(3)(a). What Perell J. does, however, is attempt to clarify what is meant by s. 241.(2)(d): the provision that requires the person to meet the criteria that “their natural death has become reasonably foreseeable”. As a matter of statutory interpretation, he declares that in AB’s case, AB’s natural death is reasonably foreseeable.
Perell J. cautions that in making a declaration, he is not conferring immunity on the physicians from prosecution. He also states that he is not finding that courts could or should grant pre-approvals for persons seeking medical assistance in dying. It is unclear as to whether this will provide much comfort to medical practitioners.
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For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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Other blog posts that may be of interest: