Interpreting Canada s Medical Assistance in Dying Legislation

Transcription

1 IRPP REPORT March 2018 Iterpretig Caada s Medical Assistace i Dyig Legislatio Jocely Dowie ad Jeifer A. Chadler

2 Iterpretig Caada s Medical Assistace i Dyig Legislatio ABOUT THE AUTHORS Jocely Dowie is a member of the Caadia Coucil of Academies Expert Pael o Medical Assistace i Dyig, ad she was a member of the Royal Society of Caada Expert Pael o Physicia Assisted Dyig, the Provicial-Territorial Expert Advisory Group o Physicia Assisted Dyig, ad the pro boo legal team for the plaitiffs i Carter v. Caada. She is a uiversity research professor i the faculties of law ad medicie at Dalhousie Uiversity, a faculty member of the Dalhousie Health Law Istitute, ad a adjuct professor at the Australia Cetre for Health Law Research. She is a member of the Order of Caada ad a Fellow of the Royal Society of Caada, the Caadia Academy of Health Scieces, ad the Pierre Elliott Trudeau Foudatio. Jeifer A. Chadler is a member of the Caadia Coucil of Academies Expert Pael o Medical Assistace i Dyig. She is the Bertram Loeb Research Chair ad a professor at the Cetre for Health Law, Policy ad Ethics, Faculty of Law, Uiversity of Ottawa. ACKNOWLEDGEMENTS The authors are deeply idebted to the participats of the meetig we coveed i August 2017 uder the Chatham House Rule. Their geerous ad costructive egagemet with the drafts of this report ad their commitmet to a collaborative process aimed at icreasig clarity with respect to the meaig of Caada s MAiD legislatio has bee extraordiary. The meetig was made possible by the Pierre Elliott Trudeau Foudatio fellowship held by Jocely Dowie. The authors are also grateful to other experts who geerously provided sometimes challegig ad always helpful feedback o earlier drafts of this report. The opiios expressed i this study are those of the author ad do ot ecessarily reflect the views of the IRPP or its Board of Directors. If you have questios about our publicatios, please cotact irpp@irpp.org. If you would like to subscribe to our ewsletter, IRPP News, please go to our website, at irpp.org.

3 IRPP Report March 2018 CONTENTS Abstract Itroductio Developig our proposed iterpretatios Six key phrases i the Caadia MAiD law Reasoably foreseeable atural death Serious ad icurable coditio Itolerable sufferig Irreversible declie i capability Immiet loss of capacity to provide iformed coset Exclusio of metal illess Coclusio...31 Appedix...34 Refereces...35

4 Iterpretig Caada s Medical Assistace i Dyig Legislatio ABSTRACT Ucertaity about the meaig of specific terms i the Caadia MAiD legislatio puts Caadias at risk i a umber of ways. Eligibility for MAiD may be determied too broadly or too arrowly, ad there may be arbitrary iequality of access whe the various MAiD assessors ad providers iterpret the law differetly. I this ew IRPP report, the authors idetify six key phrases i the curret law that urgetly eed clarificatio. They explai how these phrases are geeratig iterpretive ucertaities, propose a iterpretatio for each phrase ad justify each iterpretatio. The aim of this report is ot, therefore, to fid ways to expad or restrict access to MAiD. Rather, it aims to determie the most defesible iterpretatios of the legislatio, usig the tools of statutory iterpretatio supported by relevat cliical ad other forms of expertise. RÉSUMÉ Le ses approximatif de certais termes de la loi caadiee sur l aide médicale à mourir expose la populatio à u évetail de risques. O pourrait aisi e détermier l admissibilité de faço trop large ou trop étroite, alors que l accès au processus pourrait varier arbitrairemet selo l iterprétatio que chaque évaluateur et prestataire fera de la loi. Six locutios clés du texte de loi doivet être clarifiées de toute urgece, estimet les auteures de ce rapport de l IRPP, qui décrivet les problèmes d iterpréta-tio qu elles suscitet tout e proposat et e justifiat pour chacue l iterprétatio qui leur semble appropriée. Ce rapport e vise doc pas à élargir ou à restreidre l accès à l aide médicale à mourir, mais bie à établir les iterprétatios les plus justifiables au regard des pricipes d iterprétatio législative souteus par toute forme d expertise cliique et pertiete. 4

5 IRPP Report March INTRODUCTION I February 2015, the Supreme Court of Caada (SCC) issued its decisio i Carter v. Caada, declarig Caada s Crimial Code prohibitios o volutary euthaasia ad assisted suicide ivalid. 1 The SCC declared that the prohibitios violated the Caadia Charter of Rights ad Freedoms isofar as they prohibit physicia-assisted death for a competet adult perso who (1) clearly cosets to the termiatio of life; ad (2) has a grievous ad irremediable medical coditio (icludig a illess, disease or disability that causes edurig sufferig that is itolerable to the idividual i the circumstaces of his or her coditio). Irremediable does ot require the patiet to udertake treatmets that are ot acceptable to the idividual. 2 The SCC suspeded its declaratio of ivalidity for 12 moths to give the federal govermet time to pass legislatio to regulate medical assistace i dyig (MAiD) if it wated to do so. 3 After a chage i govermet withi that 12-moth widow (the Liberal Party havig replaced the Coservative Party i power), the SCC grated a four-moth extesio. I April 2016, the govermet itroduced its MAiD legislatio, Bill C Reactios to the Bill were immediate ad vociferous. Some felt that it was too permissive: for example, by ot requirig judicial preauthorizatio of all cases (see, e.g., VPS-NPV 2017). Others felt that it was too restrictive: by requirig, for istace, that MAiD caot be provided util atural death has become reasoably foreseeable (see, e.g., commets of Joseph Arvay ad Jea-Pierre Méard, Stadig Seate Committee o Legal ad Costitutioal Affairs 2016b). Such disagreemets were to be expected because there is disagreemet withi Caadia society about what eligibility criteria ad procedural safeguards are most appropriate for MAiD. It was also widely oted that the meaig of some of the Bill s key terms ad phrases was uclear. For example, questios were immediately raised about the meaig of icurable illess, disease, or disability, 5 advaced state of irreversible declie i capability, 6 edurig physical or psychological sufferig that is itolerable to them 7 ad atural death has become reasoably foreseeable. 8 1 Carter v. Caada (Attorey Geeral), 2015 SCC 5, [2015] 1 SCR 33 [Carter SCC]. Volutary euthaasia was prohibited through sectio 14 ad the homicide provisios of the Crimial Code, ad assisted suicide was prohibited through sectio 241(b): Crimial Code, RSC 1985, c. C Carter SCC at paragraph The federal govermet was free to do othig (just as it did whe the restrictios o abortio were struck dow by the SCC i R. v. Morgetaler, [1988] 1 SCR 30). This approach would have left MAiD to be regulated like ay other health service through the provicial/territorial admiistratio of health care ad the regulatio of health care providers through their provicial/territorial colleges of physicias, urses ad pharmacists. 4 Bill C-14, A Act to amed the Crimial Code ad to make related amedmets to other acts (medical assistace i dyig) [Bill C-14], 1st. Sess. 42d Parl (first readig 14 April 2016), olie: DocumetViewer/e/42-1/bill/C-14/first-readig (asseted to 17 Jue 2016). 5 Crimial Code, sectio 241.2(2)(a). 6 Crimial Code, sectio 241.2(2)(b). 7 Crimial Code, sectio 241.2(2)(c). 8 Crimial Code, sectio 241.2(2)(d). 5

6 Iterpretatio challeges are ot ucommo with ew legislatio. However, the risks of leavig ucertaity ad cofusio uaddressed i this cotext are sigificat. 9 Too arrow a iterpretatio could mea people who should have access may be deied MAiD; too broad a iterpretatio could mea some people may be give access who should ot. Two persos i the same circumstaces may be treated differetly (oe allowed access ad oe deied it) simply because their providers or their cousel iterpret the legislatio differetly. Other cosequeces arisig from the iterpretive cofusio are possible too. For example, i respose to particular iterpretatios of the legislatio that suggest o other optio, some patiets may forgo drugs eeded for effective pai cotrol ad remai i a state of itolerable sufferig i order to maitai the ecessary level of decisio-makig capacity to reiterate their request at the time of MAiD admiistratio. Fially, the ucertaity about the meaig of key terms ad phrases may raise cocers about potetial crimial liability, producig a chillig effect o medical ad urse practitioers willigess to provide MAiD. 10 How ca we avoid these cosequeces? Oce a piece of legislatio is i force, oly the courts ca defiitively iterpret it. Ufortuately, seekig clarificatio through litigatio is prohibitively expesive ad time-cosumig. Few people deied access to MAiD because of issues of iterpretatio would be i a positio to seek assistace from the courts. I the absece of defiitive judicial guidace, there are evertheless steps that ca be take to mitigate the problems metioed above. These challeges must be cofroted by those who have the resposibility ad authority to provide iterpretive guidace to health care practitioers ad patiets: govermets, directors of public prosecutio ad attoreys geeral, professioal regulators, health authorities, professioal liability protectio providers, professioal associatios, ad civil society groups. I the coclusio of this report, we provide recommedatios for specific actios. I short, there are istrumets ad aveues available to reduce ucertaity ad cofusio amog patiets ad health care providers. Although 1,982 Caadias accessed MAiD i the legislatio s first year, betwee Jue 17, 2016, ad Jue 30, 2017 (Caada 2017c), cofusio remais ad clarity is required. It is time for those who ca help to clarify the meaigs to do so. 9 The seriousess of the situatio was ackowledged by Justice Perell i AB v. Caada, 2017 ONSC 3759 [AB]. He took the uusual step of issuig a iterpretative declaratio, otig that the regime for medical assistace i dyig is i early days, ad give the extreme gravity of the issues ivolved ad the eormous public iterest i how the Caadia regime operates, there is utility i removig doubts about the iterpretatio ad operatio of the statute creatig the regime (at paragraph 73). The absolute umber of requests that are adversely affected by the lack of clarity is likely low. However, we do ot kow the percetage of requests that are so affected. I additio, the severity of the cosequeces is very high, eve if the icidece is low. 10 While o peer-reviewed studies o the icidece of such cosequeces are available, the authors do have cofirmatio from people workig i the field that they have observed each of the cosequeces set out i the text. This chillig effect was also visible i the recet case of AB, i which oe physicia cocluded that a patiet was eligible for MAiD, a secod physicia cocluded that she was ot, a third cocluded that she was, but the first physicia feared crimial liability because of the ucertaity ad so was o loger willig to provide MAiD. AB wet to court to get the ucertaity resolved ad, thereby, remove the chillig effect. Aother example of this chillig effect was recetly described by Kas Roussy of CBC News (Roussy 2017). All that said, may patiets are gettig access to MAiD, ofte without barriers associated with ucertaities about statutory iterpretatio. 6

7 IRPP Report March DEVELOPING OUR PROPOSED INTERPRETATIONS To cotribute to such a exercise of leadership, we developed a draft paper proposig iterpretatios for some of the most problematically ucertai phrases i Bill C-14. From this startig poit, we refied the draft through discussios with some MAiD providers. We the posted it o the Social Scieces Research Network (Dowie ad Chadler 2017) ad sought feedback through a ope call (Twitter etworks ad s to various people we kow are iterested i the topic) ad direct cotact with MAiD assessors ad providers. I-perso coversatios with key experts from legal or regulatory etities led to further refiemets. We the hosted a Chatham House Rule 11 meetig with 15 participats i Halifax i August 2017 to workshop the revised draft. The goal was cofidece buildig, ot cosesus buildig. Our itetio was to brig together people with relevat expertise from a variety of perspectives shaped by their roles or experieces withi particular orgaizatios. Everyoe was asked to leave their istitutioal role at the door. Participats were ivited to speak solely for themselves (ad ot for attributio), o the basis of their expertise. We spet a day ad a half together discussig ad debatig the substace of the draft paper. Followig this meetig, we revised the draft paper agai, recirculated it to the group for commets ad icorporated further feedback. The result is the followig set of iterpretatios of key phrases i the legislatio. See box 1 for additioal iformatio about the process ad this report. 3. SIX KEY PHRASES IN THE CANADIAN MAiD LAW We have idetified six phrases i the curret law that urgetly eed clarificatio. They are preseted i their statutory cotext i box 2. I this sectio of the paper, we explai how these phrases are geeratig iterpretive ucertaities. We the provide a proposed iterpretatio for each phrase, followed by a justificatio for each proposed iterpretatio. 3.1 Reasoably foreseeable atural death The Caadia MAiD legislatio requires that, i order to be eligible for MAiD, a perso must have a grievous ad irremediable medical coditio. The legislatio the lists four criteria for such a coditio. Oe is that their atural death has become reasoably foreseeable, takig ito accout all of their medical circumstaces, without a progosis ecessarily havig bee made as to the specific legth of time that 11 The Chatham House Rule, as explaied by Chatham House, is as follows: Whe a meetig, or part thereof, is held uder the Chatham House Rule, participats are free to use the iformatio received, but either the idetity or the affiliatio of the speaker(s), or that of ay other participat, may be revealed (Chatham House,.d.). We modified the rule to permit disclosure of the idetity ad affiliatio of those participats who idicated explicitly that they coseted to such disclosure. Participats willig ad able to be idetified are listed i the appedix. Those listed do ot ecessarily edorse all statemets i this report. 7

8 Box 1. About the process ad report Legal advice ad legal risk assessmet This report caot ad does ot represet legal advice. Nor is it a legal risk assessmet, ad so it should ot be take as suggestig that some iterpretatios of the MAiD legislatio carry low or high risk from a legal liability perspective. Health care regulatory bodies This report caot substitute for the regulators of health care professios. Care providers are subject to the policies ad stadards pertaiig to the MAiD legislatio that have bee adopted by their regulatory bodies ad should act withi the guidace provided by their regulator s iterpretatio of the legislatio (if ay). Access to MAiD The goal of the process that led to this report was ot to fid ways to expad or restrict access to MAiD. Rather, it was to determie the most defesible iterpretatios of the legislatio, usig the tools of statutory iterpretatio supported by relevat cliical ad other forms of practical expertise. We were agostic at the outset as to whether the iterpretatios that would be proposed i the ed would expad or costrai developig patters of practice with respect to who is able to access MAiD. Ideed, i the ed, the iterpretatios likely cut both ways. For example, they may result i greater access by rejectig the iterpretatio of reasoably foreseeable as requirig less tha a 12-moth life expectacy; ad they may result i less access by rejectig the iterpretatio of the provisios o timig of the request that allows the siged ad dated request to be made before all the criteria of grievous ad irremediable medical coditio are met. Ogoig challeges ad reviews The costitutioality of the federal MAiD legislatio is beig challeged i ogoig litigatio. i We do ot address ad take o positio o the argumets that will be put forward by the plaitiffs or the Crow o the costitutioal questios. The Coucil of Caadia Academies Expert Pael o MAiD is curretly coductig a idepedet review of the evidece relevat to the exclusio from access to MAiD of those who make a advace request for MAiD before loss of capacity, of mature miors, ad of people whose sole uderlyig coditio is a metal illess but who do ot otherwise meet all the curret eligibility criteria. ii We do ot address the questio of whether or ot the curret law should be modified i order to allow access for such idividuals. Chagig the law This report focuses o the meaig of the legislatio as it was passed; it does ot cosider possible modificatios. Questios such as whether additioal procedural requiremets or safeguards should be i place for specific types of cases are ot addressed here, but could be addressed through law reform. Participats i the Chatham House Rule meetig Participats i the Chatham House Rule meetig did ot agree o everythig, ad so should ot be take to have edorsed everythig i this report. That said, we carefully cosidered the discussios at the meetig ad the participats feedback received o the revised draft i reachig this fial report. i ii Lamb v. Caada (Attorey Geeral) [Lamb] (27 Jue 2016), Vacouver, SCBC, S (otice of civil claim) filed 27 Jue 2016, olie: bccla.org/wp-cotet/uploads/2016/06/ notice-of-civil-claim-1.pdf; Jea Trucho ad Nicole Gladu v. Caada (Attorey Geeral) ad Quebec (Attorey Geeral) (13 Jue 2017), Motreal, CQ (Civ Div) (otice of Applicatio to Proceed for Declaratory Relief) filed 13 Jue 2017, olie: eol.law.dal.ca/wp-cotet/uploads/2017/06/ demade-itroductive-da%c2%80%c2%99istace-e-jugemet-da%cc%83%c2%89claratoire.pdf. Caadia Coucil of Academies (.d.). 8

9 IRPP Report March 2018 Box 2. Excerpts from Caada s law o medical assistace i dyig Crimial Code as ameded by Bill C (1) A perso may receive medical assistace i dyig oly if they meet all of the followig criteria: (a) they are eligible or, but for ay applicable miimum period of residece or waitig period, would be eligible for health services fuded by a govermet i Caada; (b) they are at least 18 years of age ad capable of makig decisios with respect to their health; (c) they have a grievous ad irremediable medical coditio; (d) they have made a volutary request for medical assistace i dyig that, i particular, was ot made as a result of exteral pressure; ad (e) they give iformed coset to receive medical assistace i dyig after havig bee iformed of the meas that are available to relieve their sufferig, icludig palliative care (2) A perso has a grievous ad irremediable medical coditio oly if they meet all of the followig criteria: (a) they have a serious ad icurable illess, disease or disability; (b) they are i a advaced state of irreversible declie i capability; (c) that illess, disease or disability or that state of declie causes them edurig physical or psychological sufferig that is itolerable to them ad that caot be relieved uder coditios that they cosider acceptable; ad (d) their atural death has become reasoably foreseeable, takig ito accout all of their medical circumstaces, without a progosis ecessarily havig bee made as to the specific legth of time that they have remaiig (3) Before a medical practitioer or urse practitioer provides a perso with medical assistace i dyig, the medical practitioer or urse practitioer must (a) be of the opiio that the perso meets all of the criteria set out i subsectio (1); (b) esure that the perso s request for medical assistace i dyig was (i) made i writig ad siged ad dated by the perso or by aother perso uder subsectio (4), ad (ii) siged ad dated after the perso was iformed by a medical practitioer or urse practitioer that the perso has a grievous ad irremediable medical coditio; (e) esure that aother medical practitioer or urse practitioer has provided a writte opiio cofirmig that the perso meets all of the criteria set out i subsectio (1);... (g) esure that there are at least 10 clear days betwee the day o which the request was siged by or o behalf of the perso ad the day o which the medical assistace i dyig is provided or if they ad the other medical practitioer or urse practitioer referred to i paragraph (e) are both of the opiio that the perso s death, or the loss of their capacity to provide iformed coset, is immiet ay shorter period that the first medical practitioer or urse practitioer cosiders appropriate i the circumstaces; (h) immediately before providig the medical assistace i dyig, give the perso a opportuity to withdraw their request ad esure that the perso gives express coset to receive medical assistace i dyig... Bill C-14, Preamble Ad whereas the Govermet of Caada has committed to develop o-legislative measures that would support the improvemet of a full rage of optios for ed-of-life care, respect the persoal covictios of health care providers ad explore other situatios each havig uique implicatios i which a perso may seek access to medical assistace i dyig, amely situatios givig rise to requests by mature miors, advace requests ad requests where metal illess is the sole uderlyig medical coditio... Bill C-14, Idepedet Review 9.1 (1) The Miister of Justice ad the Miister of Health must, o later tha 180 days after the day o which this Act receives royal asset, iitiate oe or more idepedet reviews of issues relatig to requests by mature miors for medical assistace i dyig, to advace requests ad to requests where metal illess is the sole uderlyig medical coditio. 9

10 they have remaiig. 12 A key questio, therefore, is whe does atural death become reasoably foreseeable. Although this is the fourth criterio listed i the legislatio, we cosider it first because it has geerated the most iterpretive difficulty Ucertaities O first impressio, several possible meaigs of atural death has become reasoably foreseeable emerge. 13 First, the phrase could refer to some probability that a perso will die a atural death as opposed to a uatural death. Secod, it could refer to timig: some probability cocerig whe a perso will die a atural death; the most commo iterpretatio of this kid is that atural death is likely withi some specified legth of time. Third, it could refer to cause: some probability cocerig how the perso will die a atural death (as a result of a particular set of physiological processes or coditios). Or it could refer to some combiatio of the above. Ucertaity as to the iterpretatio of this phrase has cosequeces: medical or urse practitioers who agree o a patiet s progosis may oetheless disagree as to whether the patiet s death is reasoably foreseeable because they disagree as to whether reasoably foreseeable refers to the that, the whe or the how of the patiet s atural death. Eve amog medical or urse practitioers who thik reasoably foreseeable refers oly to timig ad who iterpret the law as requirig that atural death be expected withi a certai legth of time, iterpretive complexities still remai. Does the cocept of reasoable foreseeability require death to be aticipated withi six moths? Withi 12 moths? Withi six years? A patiet with a degeerative eurological coditio (such as ALS) ad a progosis of four years could be said to meet the eligibility criteria o some of these iterpretatios, but ot o others. The same could be said of a patiet with cacer ad a progosis of ie moths. There ca be agreemet o the progosis ad disagreemet about whether the criterio is met, depedig upo the specific legth of time chose as the boudary withi which atural death must be probable. Iterpretatio is o easier for those who thik reasoably foreseeable refers oly to the cause of death. Natural death has become reasoably foreseeable could refer to a requiremet of a particular cause: for istace, that a perso has a fatal coditio that will most probably lead to atural death. Medical or urse practitioers might disagree as to whether reasoably foreseeable requires a diagosis with a fatal coditio, ad so reach differet coclusios i situatios where they all agree that a particular patiet s diagosis is ot that of a fatal coditio. For example, a elderly patiet may ot have ay sigle fatal coditio but may have istead a costellatio of chroic coditios ad symptoms ad a poor score o a frailty idex (Rockwood et al. 2005). This patiet s atural death will ot be reasoably foreseeable to some, but it will be to others. 12 Crimial Code, sectio 241.2(2)(d). 13 The iterpretive difficulties of this criterio are discussed i depth i Dowie ad Scallio (2017). Our report ad Dowie ad Scallio (forthcomig) have iflueced ad draw upo each other. 10

11 IRPP Report March Proposed iterpretatio Natural death has become reasoably foreseeable does ot mea that eligibility is limited to fatal coditios, that the perso is termially ill or at the ed of life, or that death is immiet or aticipated withi six moths. Temporal proximity the earess of atural death ca be sufficiet for cocludig that atural death is reasoably foreseeable. However, temporal proximity is ot ecessary for reasoable foreseeability. Ideed, it is ot ecessary for the medical or urse practitioer to have predicted or to be able to predict the legth of time the patiet has remaiig. Similarly, a predictable cause of atural death ca also be a sufficiet coditio for cocludig that atural death is reasoably foreseeable, but it is also ot ecessary for reachig this coclusio. I other words, atural death will be reasoably foreseeable if either coditio exists a predicted death i a period of time that is ot too remote (Caada 2016b) or a predictable cause of atural death but it is ot ecessary for both coditios to exist for the patiet to meet this eligibility criterio Justificatio There are several idicatios from the courts ad the govermet of what reasoably foreseeable does ot mea. Natural death has become reasoably foreseeable caot mea simply that someoe will die a atural death, because more tha 90 percet of people will do so (Martel 2015). Justice Perell of the Otario Superior Court of Justice recetly issued a judgmet iterpretig this criterio i the case AB v. Caada (Attorey Geeral). 14 Although this is a sigle trial-level decisio, the judgmet makes it clear that the determiatio of the time widow for aticipated death (the whe iterpretatio) may be helpful but is ot required to reach a determiatio that atural death has become reasoably foreseeable : Natural death eed ot be immiet ad...what is a reasoably foreseeable death is a perso-specific medical questio to be made without ecessarily makig, but ot ecessarily precludig, a progosis of the remaiig lifespa. [ ] I formulatig a opiio, the physicia eed ot opie about the specific legth of time that the perso requestig medical assistace i dyig has remaiig i his or her lifetime. 15 Justice Perell also rejected oe versio of the argumet that a particular cause is required (the how iterpretatio). He said it was ot ecessary that a patiet have a termial disease or coditio: The laguage reveals that the atural death eed ot be coected to a particular termial disease or coditio ad rather is coected to all of a 14 AB. 15 AB at paragraph

12 particular perso s medical circumstaces. [ ] The laguage does ot require that people be dyig from a termial illess, disease or disability. 16 The Crow has chose ot to appeal the AB decisio. Of course, the Crow s decisio is ot a cocessio that Justice Perell was correct or a edorsemet of Justice Perell s iterpretatio. I additio, AB is a decisio from a trial judge i Otario ad so is ot a bidig legal authority. However, it is the oly judicial iterpretatio available so far o the meaig of the reasoably foreseeable criterio. Apart from the AB case, there are also plausible argumets based o statutory iterpretatio relyig o, for example, the legislative text ad legislators itet that support the coclusios draw by Justice Perell about what reasoably foreseeable does ot mea. The law s requiremet that atural death be reasoably foreseeable icludes the phrase without a progosis ecessarily havig bee made as to the specific legth of time that they have remaiig. This wordig makes clear that temporal proximity is ot a ecessary coditio. Speeches made i the House ad Seate about Bill C-14, as well as testimoy before House ad Seate committees ad backgroud ad other explaatory materials produced by the govermet, ca be reviewed to uderstad the policy itet. The criterio that atural death has become reasoably foreseeable should ot, accordig to this evidece, be take to mea that atural death must be solely caused by the grievous ad irremediable coditio; 17 immiet; 18 limited to fatal coditios; 19 limited to beig termially ill; 20 limited to a expected remaiig lifespa of six moths (as i the US model); 21 limited to people at the ed of life (as i the Quebec model) AB at paragraph Jody Wilso-Raybould, Miister of Justice, testifyig before the Stadig Seate Committee o Legal ad Costitutioal Affairs (Stadig Seate Committee 2016a): However, i terms of the way that we ve drafted our defiitio aroud grievous ad irremediable, all of those elemets eed to be read together i the totality of the circumstaces. 18 Murray Siclair, Seator (Seate 2016b, 1210). 19 Jody Wilso-Raybould, Miister of Justice (House of Commos 2016a, 1010): To be clear, the bill does ot require that people be dyig from a fatal illess or disease or be termially ill. See also Caada (2016b, 20). 20 Liberal MP Arif Virai (House of Commos 2016b, 1559): Bill C-14 is actually more permissive tha ay assisted-dyig legislatio i North America. I Quebec, a applicat must have a termial disease. Bill C-14 is more accessible. It would allow medical assistace i dyig where death is reasoably foreseeable, lookig at the totality of the medical circumstaces. 21 Jody Wilso-Raybould, Miister of Justice (House of Commos Stadig Committee o Justice ad Huma Rights 2016, 1607): Eligibility does ot deped o a perso s havig a give amout of time remaiig, such as a certai umber of weeks or moths to live, as i the Uited States. 22 Jae Philpott, the Miister of Health (Seate 2016a, 1700): Ed of life is very difficult to defie. It is a term that is used i the Quebec legislatio. There are jurisdictios that put real parameters aroud it that say the ed of life must be aticipated withi six moths or a certai period of time...the solutio was to recogize that, while we could have used the term ed of life..., we preferred istead to defie grievous ad irremediable ad to say that a atural death was reasoably foreseeable, which is a term that is uderstood ad accepted by doctors, as I said before. 12

13 IRPP Report March 2018 I lie with these earlier statemets is the govermet s respose to the civil claim made i Lamb v. Caada (Attorey Geeral): Eligibility for medical assistace i dyig is ot limited to those who are dyig from a fatal or termial disease. No specific progosis is ecessary ad death eed ot be immiet or expected withi a prescribed umber of moths. 23 Other statemets i the same case suggest what the govermet believes atural death has become reasoably foreseeable does mea: To have become reasoably foreseeable, a atural death must be reasoably aticipated to occur by oe of a rage of predictable ways, ad withi a period of time that is ot too remote (emphasis added). 24 Similarly, i the recet draft regulatios to establish the federal moitorig system for MAiD, Health Caada proposes to require that, whe a practitioer has assessed the patiet for the reasoably foreseeable criterio for eligibility ad is of the opiio that the patiet meets that criterio, they must report the reasos why the practitioer was of that opiio, icludig the practitioer s estimate as to the amout of time by which medical assistace i dyig, if provided, would shorte the patiet s life ad the practitioer s aticipatio of the likely cause of atural death of the patiet (emphasis added; Caada 2017b). Ufortuately, the govermet has provided o supportig argumets for this positio. For the reasos set out below, we believe it is icorrect ad that the ad should be replaced with or i the govermet statemets: To have become reasoably foreseeable, a atural death must be reasoably aticipated to occur by oe of a rage of predictable ways, ad withi a period of time that is ot too remote (emphasis added). 25 Similarly, the regulatios should be ameded as follows: the patiet s atural death had become reasoably foreseeable, takig ito accout all of their medical circumstaces ad, if the practitioer assessed this criterio ad was of the opiio that the patiet met it, the reasos why the practitioer was of that opiio, icludig the practitioer s estimate as to the amout of time by which medical assistace i dyig, if provided, would shorte the patiet s life (if a progosis as to the amout of time that the patiet has remaiig was made) ad the practitioer s aticipatio of the likely cause of atural death of the patiet (if a likely cause was predicted). 26 The legislative text is critical here. The reasoably foreseeable criterio says without a progosis ecessarily havig bee made as to the specific legth of time that they have remaiig. This could mea either that temporal proximity is ot required, or that a progosis of a specific legth of time is ot required but a progosis of a ospecific legth of time is required. To characterize this required ospecific legth of time, some suggest the phrase used by the govermet: a period of time that is ot too remote. 23 Lamb, Vacouver, SCBC, S (respose to civil claim) at paragraph 37, olie: eol.law.dal.ca/wp-cotet/uploads/2016/10/2016_07_27_respose_to_ Civil_Claim.pdf. 24 Lamb at paragraph Lamb at paragraph Uder the legislatio, it is ot ecessary for the practitioer to have made a progosis as to the specific legth of time that the patiet has remaiig. 13

14 But how ca a medical or urse practitioer assess whether a patiet s death is likely withi a period of time that is ot too remote without kowig how remote is too remote? To idetify a period of time that is ot too remote ad to assess whether this patiet s death is predictable withi that period would require a progosis of the specific legth of time remaiig which would be icosistet with the legislative text. To avoid this icosistecy, a period of time that is ot too remote should be read as establishig the boudary of temporal proximity, which is a sufficiet but ot ecessary coditio for meetig the criterio of reasoable foreseeability. Aother potetial iterpretatio of reasoably foreseeable is the presece of a predictable cause of death, such as a diagosis of a fatal coditio. The govermet made it clear that a diagosis of a fatal coditio was ot a ecessary coditio for reasoable foreseeability. But there is o reaso to believe that it is t a sufficiet coditio. Puttig this all together, the reasoably foreseeable criterio will be satisfied by either temporal proximity ( a period of time that is ot too remote ) or a predictable cause of atural death, ad either is a ecessary coditio if the other is preset. Support for this coclusio ca be foud i govermet statemets about the legislatio. I particular, the laguage i a legislative backgrouder suggests that death should be expected i a period of time that is ot too remote, but also allows for situatios where there is a log period of time before dyig (Caada 2016b, 10). The backgrouder also suggests that a fatal disease would make someoe eligible, but the Miister of Justice ad Attorey Geeral, Jody Wilso-Raybould, clearly stated that the bill does ot require that people be dyig from a fatal illess or disease or be ill (House of Commos 2016a, 1010). The Departmet of Justice published a glossary to Bill C-14, which icludes this explaatio: Natural death has become reasoably foreseeable meas that there is a real possibility of the patiet s death withi a period of time that is ot too remote. I other words, the patiet would eed to experiece a chage i the state of their medical coditio so that it has become fairly clear that they are o a irreversible path toward death, eve if there is o clear or specific progosis. Each perso s circumstaces are uique, ad life expectacy depeds o a umber of factors, such as the ature of the illess, ad the impacts of other medical coditios or health related factors such as age or frailty. Physicias ad urse practitioers have the ecessary expertise to evaluate each perso s uique circumstaces ad ca effectively judge whe a perso is o a trajectory toward death. While medical professioals do ot eed to be able to clearly predict exactly how or whe a perso will die, the perso s death would eed to be foreseeable i the ot too distat future. (Caada 2016a) This aalysis is from the legislative backgrouder: The criterio of reasoable foreseeability of death is iteded to require a temporal but flexible coectio betwee the perso s overall medical 14

15 IRPP Report March 2018 circumstaces ad their aticipated death. As some medical coditios may cause idividuals to irreversibly declie ad suffer for a log period of time before dyig, the proposed eligibility criteria would ot impose ay specific requiremets i terms of progosis or proximity to death The medical coditio that is causig the itolerable sufferig would ot eed to be the cause of the reasoably foreseeable death. I other words, eligibility would ot be limited to those who are dyig from a fatal disease. Eligibility would be assessed o a case-by-case basis, with flexibility to reflect the uiqueess of each perso s circumstaces, but with limits that require a atural death to be foreseeable i a period of time that is ot too remote. It should be oted that people with a metal or physical disability would ot be excluded from the regime, but would oly be able to access medical assistace i dyig if they met all of the eligibility criteria. (Caada 2016b, 10) Arguably, the govermet s various statemets are somewhat cofusig ad appear at times to be iterally icosistet. However, we ca recocile them with the legislatio ad the oe available court decisio by cocludig that either the whe ( i a period of time that is ot too remote ) or the how (a predictable cause of death) is eough to establish that reasoable foreseeability exists. This coclusio also fits well with the kids of circumstaces that it seems the govermet iteded to satisfy the criterio of reasoable foreseeability. The Miister of Health at the time, Jae Philpott, stated that idividuals would meet the criterio from the momet of a diagosis of ALS beig made. 27 The average life expectacy at diagosis of ALS is two to five years; half of all people affected with ALS live at least three or more years after diagosis. Twety percet live five years or more; up to te percet will live more tha te years (ALS Associatio,.d.). Stephe Hawkig, the world-famous physicist, was diagosed with ALS at 21 ad is still alive at 75. I additio, Miister Wilso-Raybould stated: I am 100 per cet cofidet that Kay Carter [from Carter v. Caada] would be eligible uder Bill C-14 to access medical assistace i dyig (Seate 2016a, 1420). Kay Carter had o diagosis of a fatal coditio. Spial steosis (her coditio) itself does ot sigificatly shorte life expectacy. She was, however, 89 years old. The proposed iterpretatio is cosistet with these miisterial statemets about who would be eligible. The proposed iterpretatio also fits well with the coditios that, we ca ifer, the govermet iteded to result i ieligibility uder the reasoably foreseeable criterio. Commets by legislators suggest that the legislative itet was to exclude persos with a physical disability or metal illess who are otherwise i good health. Commets by Miister Wilso-Raybould idicate that the legislative itet was to exclude people like a soldier with post-traumatic stress disorder, a youg perso who suffered a spial cord ijury i a accidet, or a survivor whose mid is hauted by memories of sexual abuse (House of Commos 2016c, 1014) ad persos who have recetly become disabled i a 27 See, for example, Seate (2016a, 1700): A example of a case [that would meet the criterio] would be the matter of amyotrophic lateral sclerosis From the time that that diagosis is made, sadly, a perso s death is reasoably foreseeable because it usually happes withi a matter of moths or years. 15

16 car accidet ad have become quadriplegics (House of Commos 2016d, 1102). What these idividuals have i commo is that it is ot possible to idetify i ay way their trajectory toward a atural death: that is, the timig ad cause of their atural death are both upredictable whe lookig at the totality of their medical circumstaces. Additioal examples may be helpful to illustrate the implicatios of the proposed iterpretatio i practice. These are coditios that meet the criterio of reasoable foreseeability, makig patiets eligible for MAiD if all other eligibility criteria are also met: Advaced cacer: because the period of time before death is ot too remote ad the cause is predictable ALS at diagosis: because the cause is predictable Advaced age: because the period of time before death is ot too remote Hutigto s disease at diagosis: because the cause is predictable O the other had, some persos who would ot meet the reasoably foreseeable criterio ad so are ieligible for MAiD would be a 25-year-old with quadriplegia followig a car accidet, a 45-year-old with chroic pai ad a 50-year-old with multiple sclerosis if they are otherwise healthy. I these cases, the period of time before death is too remote ad the cause of death is ot predictable. It is importat to ote that, eve if a perso may satisfy the reasoably foreseeable atural death criterio, that perso may ot satisfy the other eligibility criteria (e.g., edurig ad itolerable sufferig, or advaced state of irreversible declie i capability). 3.2 Serious ad icurable coditio Aother criterio defiig the grievous ad irremediable medical coditio required for MAiD eligibility is that the perso have a serious ad icurable illess, disease or disability Ucertaities Does icurable mea icurable by ay meas? If so, as log as there is ay chace of a cure from ay available treatmet, the patiet would ot be cosidered icurable. Does it mea likely icurable by ay meas? Uder this iterpretatio, if a available treatmet offers ay reasoable chace of cure, the patiet would ot be deemed icurable. Or does it mea icurable by ay meas acceptable to the perso? If so, if the oly possible chace of cure comes from a available treatmet that is uacceptable to the perso (perhaps because the side effects of the treatmet are, to the patiet, worse tha death), the patiet would be deemed icurable. I sum, is icurable defied relative to the patiet s perspective or to cliical judgmet or to a combiatio? 28 Crimial Code, sectio 241.2(2)(a). 16

17 IRPP Report March 2018 Medical or urse practitioers with differet iterpretatios of icurable may agree o a cliical judgmet (agreeig o all the biological facts, such as the chace of cure ad the ature ad severity of the side effects) yet disagree as to whether a illess, disease or disability is icurable. A patiet with oral cacer who has already tried two differet chemotherapeutic agets ad is offered a third, with a 30 percet chace of cure, may decide that they caot edure aother roud of chemotherapy. A Jehovah s Witess may have a very good chace of recovery with chemotherapy for leukemia as log as they receive supportive blood trasfusios; however, the patiet refuses blood products for religious reasos (Kuti et al. 2002). O oe iterpretatio (icurability as partially or wholly depedig upo the patiet s perspective), these patiets are icurable ad thus eligible for MAiD; o aother (icurability as exclusively a cliical judgmet), they are curable ad ieligible Proposed iterpretatio Icurable meas that, i the professioal opiio of the medical or urse practitioer, the perso caot be cured by meas acceptable to that perso. This does ot mea that the professioal opiio substitutes for the perso s assessmet of whether the meas are acceptable; rather it meas that professioal opiio holds that there are o cliical optios that would accord with the perso s ow assessmet of acceptable meas Justificatio The essetial issue here is whether a illess, disease or disability is to be cosidered icurable whe treatmets are available that the medical or urse practitioer thiks are potetially curative, but that are ot acceptable to the patiet. Aother of the law s eligibility criteria is edurig physical or psychological sufferig that is itolerable to the patiet; this criterio specifies that the sufferig must be such that it caot be relieved uder coditios that [the patiet] cosider[s] acceptable. 29 If the govermet had wished to iclude such a proviso i the serious ad icurable criterio as well, some argue, it could have doe so. They coclude that acceptability to the patiet is ot a coditio of curability. We reject this argumet for the followig reasos. First, the proposed iterpretatio is cosistet with the well-established law o coset to medical treatmet (i the area of crimial assault as well as the tort of battery). With very few exceptios (such as patiets with certai commuicable diseases), the law allows capable patiets to refuse medical treatmets for ay reaso whatsoever, regardless of the potetially fatal cosequeces of the refusal ad regardless of whether others cosider their refusal reasoable. As oted by the Seior Cousel of the Departmet of Justice: I would coclude that the crimial law itself prohibits admiisterig a medical substace to a perso agaist their wishes. That is the crime of assault. The crimial law has to be iterpreted cosistetly, as a whole. So it s ot possible to iterpret icurable i Bill C-14, were it to pass, as though it would require a perso, compel a perso, to udertake a medical treatmet that they otherwise 29 Crimial Code, sectio 241.1(2)(c). 17

18 do t coset to. That is oe sectio of the Crimial Code compellig what is crimially prohibited by virtue of aother sectio of the Crimial Code. (Stadig Seate Committee o Legal ad Costitutioal Affairs 2016c) I other words, a perso has the right to refuse ay kid of treatmet. A perso ca have a illess for which there is a potetially effective treatmet, but if the perso refuses to be treated, eve to save their life, the illess will be, for all itets ad purposes, icurable. Secod, i Carter v. Caada (Attorey Geeral), the SCC used the laguage grievous ad irremediable coditio i establishig its criteria for MAiD ad explicitly stated, Irremediable...does ot require the patiet to udertake treatmets that are ot acceptable to the idividual. 30 Parliamet adopted the grievous ad irremediable phrasig i its legislatio. With o evidece that the legislature iteded to deviate from the SCC s approach to acceptability of treatmet, it is reasoable to attach the same qualificatio to icurable. Furthermore, this proposed iterpretatio of icurable has bee explicitly adopted by the Miister of Health ad the Seior Cousel for the Departmet of Justice. Whe appearig before the Seate, both stated that icurable should be iterpreted as icludig the limitatio by ay meas acceptable to the patiet (Seate 2016a, 1650; Stadig Seate Committee o Legal ad Costitutioal Affairs 2016c). Fially, the questio of the meaig of icurable was explicitly raised by legislators who were cocered that it was either a objective (cliicia-oly) or mixed objective-subjective (cliicia ad patiet) stadard rather tha a purely subjective (patiet-oly) stadard (Seate 2016a, 1650; Stadig Seate Committee o Legal ad Costitutioal Affairs 2016c). Their questios were aswered by the govermet s represetatives as idicated above. It therefore seems reasoable to assume that the fact that o amedmet was offered with respect to the stadard 31 idicates that the broader legislative uderstadig ad itet was for the stadard to iclude the patiet s perspective o acceptability. Before cocludig this justificatio of our proposed iterpretatio, three additioal poits must be made. First, our proposed iterpretatio cotemplates that both the perso seekig MAiD ad the medical or urse practitioers assessig eligibility for MAiD have a role to play with respect to whether this eligibility criterio is met. The medical or urse practitioer determies whether the patiet has a coditio ad whether it ca be cured by meas acceptable to the perso; the perso requestig MAiD determies whether ay potetial treatmets are acceptable. Secod, the established orms of iformed coset apply i the cotext of MAiD; the provider must esure that the patiet has bee iformed of the treatmet optios ad is capable of uderstadig ad appreciatig the cosequeces of refusig potetially effective treatmet. 30 [2015] 1 SCR 331 at paragraph A amedmet was passed iitially by the Seate to remove all of sectio 241.2(2), but the Seate amedmet was for Charter argumets agaist the etire provisio rather tha argumets about the stadard of assessmet of icurability. 18

19 IRPP Report March 2018 Third, good cliical practice also requires that the provider ivestigate a patiet s reasos for refusal of treatmet to verify whether ay of the cocers leadig to rejectio of a possible treatmet may be mitigated (for example, whether a misuderstadig about the side effects of the treatmet ca be cleared up). 3.3 Itolerable sufferig Amog the legislatio s criteria for grievous ad irremediable medical coditio, which is required for accessig MAiD, is that the perso must have a illess, disease or disability or... state of declie [that] causes them edurig physical or psychological sufferig that is itolerable to them ad that caot be relieved uder coditios that they cosider acceptable Ucertaities Two categories of ucertaity arise from the criterio of itolerable sufferig. 33 First, the meaig of itolerable to them ca be uderstood i more tha oe way. Specifically, does it mea sufferig that literally caot be tolerated, or does it mea a itesity of sufferig that is at the far ed of a spectrum ruig from mild to extreme? Secod, questios have bee raised about the timig of the assessmet of the itolerable sufferig criterio relative to the assessmet of the other elemets of eligibility to make a request for MAiD ad the actual makig of a request for MAiD. The legislatio provides the followig sequece of steps: 1) The patiet is iformed by a medical or urse practitioer that she has a grievous ad irremediable medical coditio (sectio 241.2(3)(b)(ii)). 2) The perso sigs a request (sectio 241.2(3)(b)). 3) Te clear days must pass betwee the day the request was siged ad the day MAiD is provided (sectio 241.2(3)(g)). The legislatio also requires that, i order to receive MAiD, two idepedet medical or urse practitioers must be of the opiio that the patiet requestig MAiD meets all of the eligibility criteria (sectios 241.2(1) ad (2) as set out i box 2). Thus, i order to be eligible to make a request for MAiD, the patiet must have bee foud by oe medical or urse practitioer to have a grievous ad irremediable medical coditio. I order to be eligible to receive MAiD, the patiet must have bee foud by two medical or urse practitioers (idepedet from each other) to meet all of the eligibility criteria (ot just the criterio of grievous ad irremediable medical coditio ). 34 For the rest of 3.3.1, we are cocered oly with the matter of eligibility to make a request for MAiD. 32 Crimial Code, sectio 241.2(2)(c). 33 The legislatio also requires that the sufferig be edurig. We do ot explore the iterpretatio of this term, as it does ot appear to be a source of cofusio. 34 The practitioer who assesses eligibility to make a request for MAiD ca be (ideed most ofte is) oe of the two practitioers who assess eligibility to receive MAiD. However, uder the law, they eed ot be. 19