Tag: physician assisted death
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.
Thank you for reading,
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.
Thank you for reading,
Other blog posts that may be of interest:
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.
Thank you for reading,
Other blog posts that may be of interest:
The issue of medically assisted death attracted a lot of attention in 2016. We blogged on the topic several times.
The federal Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) received Royal Assent in June 2016. The federal legislation has been criticized for being too restrictive. The British Columbia Civil Liberties Association has indicated it plans to challenge the constitutionality of the federal legislation.
The government of Ontario recently proposed legislation to complement the federal legislation. Some highlights of the proposed Medical Assistance in Dying Statute Law Amendment Act include:
- Patients must be competent adults over the age of 18 and suffer from incurable conditions or face a reasonably foreseeable natural death to qualify for physician-assisted death.
- All physician-assisted deaths must be reported to the Coroner, who may then choose whether or not to investigate the death.
- Physicians and nurse practitioners are not liable for any act or omission made in good faith in performing a medically-assisted death.
- Insurance and workplace compensation benefits cannot be denied to people for choosing medically assisted death.
The Medical Assistance in Dying Statute Law Amendment Act has only passed the first reading stage and may change as it is subject to second and third readings. The provincial legislature will not debate the bill again until February, when the legislature reconvenes after winter break.
Thank you for reading.
Other articles you might enjoy:
The issue of physician-assisted death has attracted national media attention, particularly over the course of the last year, and we have blogged on it throughout that time-frame, including most recently here.
Although the new legislation is in its infancy, it is already attracting criticism. A patient’s death must be “reasonably foreseeable” and the patient’s condition must be in an advanced state of irreversible decline in order to qualify.
Beth Lamb, a 25-year-old British Columbia woman, who suffers from spinal muscular atrophy, a progressive disease, is reported to be challenging the legislation. Her lawyers argue that the requirement that death be “reasonably foreseeable” unfairly excludes patients with chronic and untreatable conditions. Some of the groups Ms. Lamb’s lawyers assert are left out include those with Multiple Sclerosis, Huntington’s disease and Parkinson’s disease. They note that such individuals may be faced with the prospect of decades of suffering if they do not qualify for an assisted death.
The constitutional challenge has been filed to the B.C. Supreme Court, and it is expected that it may ultimately proceed before the Supreme Court of Canada. We will be watching to see how it unfolds.
A similarly sensitive and emotional subject area is one of making decisions to withdraw life support. This has recently been tackled by Shelley Hobbs (a lawyer with the Office of the Public Guardian and Trustee) in her award-winning play, A Good Death. This week’s edition of the Lawyers Weekly includes a nice article about the play, which revolves around a woman in her 30s left in a coma after being hit by a car, with conflict ensuing between her close friend and substitute decision-maker and her estranged mother. Although it may appear on the surface to be somewhat gloomy subject matter, the director describes the play as “life-affirming”. Perhaps something to check out at this year’s Toronto Fringe Festival.
Thanks for reading and enjoy the long weekend,
Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), continues to wind its way through the legislative process. The Bill is the federal government’s proposed new law regarding physician-assisted death, in response to the Supreme Court of Canada’s decision in Carter v Canada. The Bill was passed by the Senate on June 15, 2016 with several amendments. Yesterday, Members of Parliament in the House of Commons voted 190 to 108 in favour of the Bill, and sent it back to the Senate.
As we have previously blogged, the Supreme Court of Canada’s landmark decision in Carter v Canada declared that the prohibition against physician-assisted death in the Criminal Code violated the Charter of Rights and Freedoms.
However, in order to provide the government with sufficient time to enact a law that would pass constitutional muster, the Court suspended its declaration that the relevant sections of the Criminal Code were of no force and effect for a period of 12 months. The deadline was set to expire on February 6, 2016.
The Supreme Court subsequently granted a further four-month extension, which was set to expire on June 6, 2016. However, the Court granted an exemption for individuals who wished to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”
In response, the Ontario Superior Court of Justice published a practice advisory that provided guidance on the procedural steps for such an interim application. However, upon the expiry of the Supreme Court’s suspension of its declaration on June 6, 2016, and in the absence of enacted federal legislation, it was unclear if individuals seeking access to a physician-assisted death still had to bring an application before the Ontario Superior Court of Justice for such relief.
As of June 6, 2016, the Ontario government’s website stated that assisted death was legal in Canada, “as long as the criteria set out in the Supreme Court of Canada’s decision are met.”
The government’s website also stated that, while it was not required by the Supreme Court of Canada, patients and healthcare professionals were encouraged “to seek further clarity and certainty about how the Supreme Court’s decision applies to their particular circumstances by bringing an application to the Ontario Superior Court of Justice.”
However, in a decision rendered on June 15, 2016, the Ontario Superior Court of Justice held that judicial authorization is still required in the absence of a federal law.
The Honourable Justice Paul Perell, who had previously rendered the first decision regarding physician-assisted death in Ontario pursuant to the Superior Court of Justice’s interim practice advisory, has held that those seeking a physician-assisted death must still bring an application until the federal legislation is passed.
Given Justice Perell’s recent decision, although physician-assisted death is technically legal in Canada, individuals and healthcare providers in Ontario would be well-advised to consult with a lawyer and bring an application for judicial authorization before making end-of-life decisions.
Thank you for reading,
Umair Abdul Qadir
This week on Hull on Estates, Paul Trudelle and Nick Esterbauer discuss recent developments in the prohibition against physician-assisted death, including the exemption granted by the Ontario Superior Court of Justice last month in A.B. v. Canada (Attorney General). (http://bit.ly/1RILY06)
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
On March 17, 2016, the Honourable Justice Perell of the Ontario Superior Court of Justice rendered his decision in A.B. v Canada (Attorney General), 2016 ONSC 1912, the first Application in Ontario for a declaration with respect to the constitutional exemption for a physician-assisted death.
As we had previously blogged, the Supreme Court of Canada released a landmark decision on February 6, 2015, declaring that the prohibitions against physician-assisted death in the Criminal Code violated the Charter of Rights and Freedoms. The Court suspended its declaration that sections 241(b) and 14 of the Criminal Code were of no force and effect for a period of 12 months, and the deadline was set to expire on February 6, 2016.
The Attorney General of Canada subsequently sought an extension of the suspension. In its January 2016 decision in Carter v Canada, 2016 SCC 4, the Supreme Court granted a four-month extension. However, a majority of the Court also granted a constitutional exemption for individuals who met the legal criteria set out in Carter v Canada and who wished to exercise the right to physician-assisted death during this interim period. The Alberta Court of Queen’s Bench rendered the first decision with respect to such an Application for a personal exemption on February 29, 2016 in Re H.S., 2016 ABQB 121, which was discussed here.
In response to the Supreme Court’s decision, the Ontario Superior Court of Justice published Practice Advisory – Application for Judicial Authorization of Physician Assisted Suicide. The practice advisory provides guidance on the procedural steps for such an interim Application.
In A.B. v Canada, the Applicant was an 81-year-old man who was diagnosed with advanced-stage aggressive lymphoma in 2012. After treatment failed to cure the cancer, A.B. decided to begin palliative oral chemotherapy in 2013.
The palliative care helped manage A.B.’s symptoms and pain until the end of 2015, when A.B.’s pain began to worsen. A radiation oncologist prescribed radiation, and A.B. came under the care of a palliative care physician. A.B.’s hematologist, who had been his treating physician since 2012, provided a worsening prognosis and a life expectancy of less than three months.
A.B.’s Application was supported by affidavit evidence from A.B. himself, his wife, his daughter, his hematologist, his palliative care physician and a geriatric psychiatrist. The geriatric psychiatrist performed a capacity assessment and insight, judgment and cognition assessments on A.B., and provided an opinion that A.B. had the capacity to make a decision regarding physician-assisted death. The Attorney General of Canada and Attorney General of Ontario took no position on the Application.
The Court also reviewed an exchange of correspondence with the Chief Coroner of Ontario, with respect to an ancillary request for a declaration that the physicians providing physician-assisted death not be required to notify the coroner of the circumstances of the death pursuant to the Coroners Act. On this issue, Justice Perell granted a declaration that the coroner did not need to be notified of A.B.’s death.
After reviewing the evidence, Justice Perell concluded that A.B. had satisfied the criteria set out at paragraph 127 of the Supreme Court’s 2015 decision in Carter. Justice Perell held that A.B. was a competent adult person who had a grievous and irremediable medical condition. Justice Perell also held that A.B.’s condition was causing him to suffer enduring intolerable suffering which could not be alleviated by any treatment available to him that he found acceptable, and that A.B. clearly consented to the termination of his life.
Accordingly, the Court granted a declaration that A.B. had satisfied the criteria for the constitutional exemption that was granted in the Supreme Court’s recent decision.
Thank you for reading,
Umair Abdul Qadir
Our blog has previously covered updates regarding the historic decision of the Supreme Court of Canada in Carter v. Canada (Attorney General), which declared the prohibition against physician-assisted death unconstitutional, the subsequent extension of four months of the of the declaration of the invalidity of the terms of the Criminal Code of Canada that prohibit physician-assisted death, and the practice advisory guidelines recently released by the Ontario Superior Court of Justice in this regard.
A woman from Alberta, whose identity is protected under a publication ban, was granted a legal exemption for physician-assisted death by the Alberta Court of Queen’s Bench and died in Vancouver on Monday.
In HS (Re), 2016 ABQB 121, the Court considered the criteria to be met in order to qualify for an exemption for physician-assisted death, as outlined within the Carter decisions in determining that the Applicant would have access to the relief that she sought:
- The applicant is a competent adult;
- The applicant clearly consents to the termination of life;
- The applicant has a grievous and irremediable medical condition;
- The condition of the applicant causes enduring, intolerable suffering; and
- The suffering of the applicant cannot be alleviated by any treatment acceptable to the applicant.
The Applicant suffered from amyotrophic lateral sclerosis (ALS) and was in the final stages of the disease when her life was ended earlier this week. The Applicant had previously enjoyed an active lifestyle, which had been compromised by the progression of the disease, which had rendered her “almost completely paralyzed.” The Court accepted that the Applicant had no more than six months to live and was in severe pain. In its decision released on February 29, 2016, the Court used the Applicant’s own words to describe the reasons behind her request for physician-assisted death:
I am not suffering from anxiety or depression or fear of death. I would like to pass away peacefully and am hoping to have physician-assisted death soon. I do not wish to have continued suffering and to die of this illness by choking. I feel that my time has come to go in peace.
Until the extension of the invalidity of the Criminal Code expires on June 6, 2016, individuals like the Applicant in Re HS can apply to the superior court of the relevant jurisdiction to be considered for physician-assisted death prior to the enactment of new legislation.
Thank you for reading.
As lawmakers continue to formulate a legislative response on the issue of physician-assisted death, the Ontario Superior Court of Justice has released a practice advisory for interim applications seeking judicial authorization.
As my colleague Lisa Haseley recently noted on this blog, the Supreme Court of Canada suspended the declaration that sections 241 and 14 of the Criminal Code were of no force and effect for a period of 12 months, and the one-year deadline was set to end on February 6, 2016. The Attorney General of Canada subsequently sought a six-month extension of the suspension. In its decision in Carter v Canada, 2016 SCC 4, released on January 15, 2016, the Court granted a four-month extension in light of the recent federal election.
However, a majority of the Court also granted an exemption for individuals who wish to exercise the right to physician-assisted death during this interim four-month period, holding that “they may apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of our reasons in Carter.”
On January 29, 2016, in response to the Supreme Court’s decision, the Ontario Superior Court of Justice published Practice Advisory – Application for Judicial Authorization of Physician Assisted Suicide. The practice advisory provides guidance on the procedural steps for such an interim application for judicial authorization.
The practice advisory states that the application must be commenced by Notice of Application, pursuant to Rule 14 of the Rules of Civil Procedure. The applications would be heard no earlier than fifteen days and no later than thirty days after the application is commenced, but certain applications can be heard on an emergency basis.
The Notice of Application must be served on the Attorney General of Canada and the Attorney General of Ontario, and may need to be served on the applicant’s family members and “any other person who will be affected by the order sought” depending upon the individual circumstances of the applicant. The applicant must serve and file an application record and factum at least seven days before the hearing, and the respondents shall serve and file a factum and respondent’s application record at least four days before the hearing.
In addition to highlighting the evidence that should be included in the applicant’s affidavit, the practice advisory provides guidance on the affidavit evidence required from the applicant’s attending physician, consulting psychiatrist and the physician proposed to assist death (who may also be the attending physician).
Any Ontario parties or counsel seeking an exemption should carefully review both the practice advisory and the Supreme Court’s 2015 decision in Carter. The practice advisory notes that while it includes references to the types of evidence discussed in the decision, “the onus rests with the applicant to confirm and meet the evidentiary requirements set out in Carter (2015).”
Thank you for reading.
Umair Abdul Qadir