February 2017 update
While many Canadians are now legally ending their suffering through doctor-provided assisted deaths, there are some people who cannot, even though they have equally intolerable suffering from “grievous and irremediable” medical conditions. This is because of the restriction added to the legislation by the Canadian Government that the person’s death must also be “reasonably foreseeable”. This restriction was not in the Canadian Supreme Court judgement of February 2015 that led to the medical aid in dying law.
This article provides information on the problems being caused by the restriction. An important action being taken is a legal challenge against the restriction by the British Columbia Civil Liberties Association (BCCLA), the organisation responsible for the original ground-breaking Carter vs Canada case that resulted in the Canadian Supreme Court decision. Read more
23 August 2016 Update
In a massive step forward for voluntary assisted dying law reform internationally, the Canadian legislation to provide for medical assistance in dying was passed and received Royal Assent on 17 June 2016. You can read details of what is now legal in Canada as well as access the law itself and other background information here.
It will take some time for the implementation of the new law to occur. This is occurring through the Provinces and Territories and with medical and nursing registration and professional bodies playing an important role. (In Canada, health care is an area of shared jurisdiction by federal and provincial-territorial governments.) See for example, British Columbia and Alberta.
One of the big issues we will be following in Canada – as in other places with assisted dying laws – is making sure people can get assistance if their own doctor (or, as in Canada, nurse practitioner) is not prepared to provide it.
We will also follow expected legal challenges to the law which has been criticised because of the requirement that the death of the person requesting medical assistance in dying must be reasonably foreseeable. This could prevent someone with a serious incurable illness and enduring unbearable suffering, with no end in sight, from accessing assistance. This is likely to be argued for a woman with spinal muscular atrophy in British Columbia.
11 May 2016 Update
The Canadian legislation to legalise voluntary assisted dying has moved a significant step closer. On 4 May, it passed the Second Reading stage in their House of Commons by a massive vote of 235 in favour and only 75 against. Of the 75 against, 73 were Conservatives (80% of them voted against) and only 1 Liberal and one New Democratic Party. Interestingly, 8 of the 9 Conservatives from Quebec voted for the Bill.
(The Quebec legislation came into effect in December 2015 having been passed in 2014 by a vote of 94 – 22. A recent media report indicated that 20 people have accessed assisted dying since then. The Quebec law followed years of intensive consideration and consultation which demonstrated voluntary assisted dying choice was necessary and could be made safe from abuse. We think the vote in Quebec and by Quebec MPs in the debate on the cross-Canada Bill show that MPs support voluntary assisted dying legislation when they make well-informed, rational and well-considered decisions.)
The Parliament needs to have the legislation passed both the House of Commons and the Senate by 6 June to meet the deadline set by the Supreme Court. Otherwise the Court’s decision will mean that assisted dying will become legal in the conditions set down by the Court. (For more details see the report, Medical Assistance in Dying: A Patient-centred Approach). People are already accessing assisted dying through provincial courts applying the Supreme Court decision.
This week (9 – 13 May) the detailed provisions of the Bill are being considered by two Committees of the Parliament: the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. The Committees are considering the views expressed in the parliamentary debate so far and in submissions to them from the public. We expect them to report quickly with their recommendations and the final debate will then occur in the next few weeks.
Key issues where differences of opinion have been expressed include:
- whether the Bill is consistent with the unanimous Supreme Court decision of February 20015. Some people are arguing strongly that the Bill is more restrictive because it requires that the “natural death” of the person seeking assisted dying is “reasonably foreseeable”. For example, the family of Kay Carter, a key person in the Court case, have claimed that their mother would not qualify under the legislation but the Court had supported her access to assisted dying.
- vagueness of the term “reasonably foreseeable” which has been criticised by opponents of assisted dying who argue for more restrictive set timeframes, eg a prognosis that people will die within 3 months. Opponents are also arguing for more burdensome, time-consuming and costly hurdles including court or legal processes.
- whether people whose suffering is due to mental illness should be able to access assisted dying
- whether the “conscience rights” of doctors are adequately protected. Opponents of assisted dying spent a great deal of time in the debate on this issue with little or no reference at all to the rights of patients.
- access to assisted dying by advance directive or request, eg by people with dementia who no longer have mental competence but made a directive when they did. This matter was not considered by the Supreme Court but the Joint Select Committee report of the Parliament recommended this be provided for.
22 April 2016 Update
The Canadian Bill to legalise voluntary assisted dying (what they call ‘medical assistance in dying’) was introduced in the Parliament on 14 April by the Prime Minister Justin Trudeau. A news item about it quotes him as saying:
The plan we put forward is one that respects Canadians’ choices while putting into place the kinds of safeguards needed.
The Canadian and Tasmanian Bills are very similar
The Canadian Bill is very similar to the 2013 Tasmanian Voluntary Assisted Dying Bill (and the likely 2016 Bill) which also did not allow assisted dying for those groups. The Bills are very similar on other key aspects and demonstrate how well prepared the Tasmanian Bill was:
- Both Bills require the request to be voluntary and made by a competent adult (18 or over)
- Both require the person making the request for assisted dying to be very seriously ill and with great suffering. The Canadian Bill requires the person to have a “grievous and irremediable medical condition” which is defined as including “a serious and incurable illness, disease or disability”, “in an advanced state of irreversible decline in capability” and, as a result, experiencing “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable”. The Tasmanian Bill required the person to be have an “incurable and irreversible medical condition, whether caused by illness, disease or injury”, “that is causing persistent and not relievable suffering for the person that is intolerable for the person”.
- Neither require a prognosis of the likely time before death is expected. The Canadian Bill requires that the person’s “natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining”. The Tasmanian Bill required the person to be in the advanced stages of the medical condition.
- Both require an independent doctor to confirm the first doctor’s view that the person meets all the requirements.
- Neither require compulsory psychiatric assessment of the person making the request. The Canadian Bill is silent about the issue, while the Tasmanian Bill required the doctor to refer the person for counselling by a psychiatrist or psychologist if he/she was not satisfied that the person was competent or not voluntarily making the request.
- Both provide for the assisted dying to be doctor-administered (eg by injection) or self-administered by the person (eg oral medication prescribed by the doctor).
- Both require a written request to be witnessed by two people. The Canadian Bill requires both to be “independent”, while the Tasmanian Bill required at least one to be independent.
- Both provide waiting periods although there are differences in the timeframes. The Canadian Bill allows a shorter waiting period if the person’s death or loss of capacity to provide informed consent is imminent.
- Both provide substantial penalties for some offences.
- Both require information to be provided as part of careful government oversight and monitoring of assisted dying provided under the law.
Significant differences include:
- In the Canadian Bill, “nurse practitioners” are given the same powers as doctors.
- The Tasmanian Bill is much more detailed and prescriptive about many aspects of the process that must be followed by doctors, including the detailed responsibilities of doctors, counsellors and pharmacists, information that must be provided to the patient, safe handling of medication, records that must be kept and provided, immunities and offences, the role and responsibilities of the statutory position of Registrar to provide education, monitoring, review and follow-up on all cases of assisted dying and annual reporting to Parliament.
For ongoing information as the Bill is debated in the Canadian Parliament, keep an eye on the News section of this website or our Facebook page.
1 April 2016
Canada will soon become the 12th jurisdiction to have legal access to voluntary assisted dying. The Canadian experience is very significant for the Tasmanian and other States’ voluntary assisted dying legislation because of the historical, cultural and social similarity between Australia and Canada, both Commonwealth countries.
(Voluntary assisted dying is now legal in 11 jurisdictions – Switzerland (under the 1942 Criminal Code); legislation in the US States of Oregon, Washington, Vermont and California, and as a result of court decisions in Montana; legislation in The Netherlands, Belgium and Luxembourg; court decisions in Columbia; and legislation in Quebec (Canada). There are similarities between the legal provisions but also significant differences. More details about existing legislation and legal provisions can be found in the 2013 paper, Voluntary Assisted Dying: A Proposal for Tasmania, and in Tables of Comparison prepared by DwDTas and included as part of its submission in 2015 to the Victorian inquiry into end of life choices.)
Details of the Canadian legislation have not yet been finalised. However, there are clear indications as a result of the Canadian Parliament’s Special Joint Committee on Physician-Assisted Dying which reported to the Parliament in February 2016 on proposed legislation. Its report, Medical Assistance in Dying: A Patient-centred Approach, makes 21 recommendations, based on detailed rationales following careful consideration of the landmark Canadian Supreme Court decision in February 2015, other reports and its own consultation process.
The Canadian nation-wide legislation will be based on the most thorough and comprehensive reviews of the issue of voluntary assisted dying, national debate and multiple consultations over several years. Most significantly it will have the support of the country’s most significant institutions including the Parliament, the Supreme Court, and the Canadian Medical Association (CMA).
The national legislation will also follow the success of the Quebec legislation, An Act respecting end-of-life care. This was passed in June 2014 by an overwhelming cross-party vote of 94 – 22. Most of the Act’s provisions came into force on 10 December 2015, after legal challenges and potentially more challenges. The Quebec Act had also followed thorough and comprehensive review and consultation over several years through the Quebec Parliament’s Select Committee on Dying with Dignity. Its excellent report on which the Quebec legislation was based was provided to Parliament in March 2012.