Archive for June, 2012

June 21, 2012

Physician Assisted Suicide – The British Columbia Supreme Court Decision

As many will be aware, last week the Supreme Court of British Columbia released its decision striking down a portion of certain sections of the Canadian Criminal Code that make it a criminal offence to counsel a person to commit suicide or to aid or abet a person to commit suicide.  The Court specifically found that the absolute prohibition created by these provisions limits the rights set out in sections 7 (life, liberty and security of the person) and 15 (equal protection and equal benefit of the law without discrimination) of the Canadian Charter of Rights and Freedoms and are of no force and effect:

“to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who:  (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person”

The Court conducted a thorough (302 page) analysis of the ethical and legal issues involved in this case and the available evidence concerning physician-assisted suicide, an analysis that cannot be set out succinctly here.  However, some of the notable findings of the Court are as follows:

  • The Court noted that suicide itself is not a criminal offence and that the Criminal Code provisions therefore discriminate against a portion of the population that is not physically capable of or is more greatly burdened in ending their own life.
  • Ethicists and medical practitioners widely concur that current legal end-of-life practices that may hasten death (ie. palliative care and the right to refuse treatment based on informed consent) are ethically acceptable.
  • The evidence shows that risks in allowing physician-assisted suicide do exist, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness; but that these risks can be very largely avoided through carefully-designed, well-monitored safeguards.
  • While the purpose of the absolute prohibition against assisted suicide as determined (and upheld) by the Supreme Court of Canada in Rodriguez, ie. to prevent vulnerable persons from being induced to commit suicide at times of weakness; is pressing and substantial, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing grievously and irremediably ill adults who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death.
  • The Court found that it was not absolutely bound by Rodriguez because Rodriguez left open the question of whether the Criminal Code provisions infringe the right to life and did not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided.  Those are the principles that laws must not be overbroad and that laws must not be grossly disproportionate.  The Court also held that the analytical approach to s. 1 (the “saving” provision) of the Charter has been modified since Rodriguez.
  • As concerns the elderly specifically, the Court accepted that elderly persons are vulnerable to abuse and that the assessment of voluntariness of elderly people must incorporate an understanding of that reality.  However, on a review of evidence from jurisdictions where physician-assisted suicide is permitted, the Court found that there is no evidence that the elderly access physician-assisted dying in disproportionate numbers.

The Court suspended its declaration for one year in order to allow Parliament time to amend the Criminal Code to deal with these Charter infringements.  The Court also granted an immediate constitutional exemption to one of the plaintiffs under s. 24(1) of the Charter to allow her to apply to the Court within the suspension period to engage a physician-assisted death provided the following conditions are met:

(a)        She provides a written request.

(b)        Her attending physician attests that she is terminally ill and near death, and there is no hope of her recovering.

(c)        Her attending physician attests that she has been:

(i)         informed of her medical diagnosis and prognosis;

(ii)        informed of the feasible alternative treatments, including palliative care options;

(iii)       informed of the risks associated with physician-assisted dying and the probable result of the medication proposed for use in her physician-assisted death;

(iv)       referred to a physician with palliative care expertise for a palliative care consultation;

(v)        advised that she has a continuing right to change her mind about terminating her life.

(d)        Her attending physician and a consulting psychiatrist each attest that she is competent and that her request for physician-assisted death is voluntary and non-ambivalent.  If a physician or consulting psychiatrist has declined to make that attestation, that fact will be made known to subsequent physicians or consulting psychiatrists and to the court.

(e)        Her attending physician attests to the kind and amount of medication proposed for use in any physician-assisted death that may occur.

(f)        Unless she has become physically incapable, the mechanism for the physician-assisted death shall be one that involves her own unassisted act and not that of any other person.

 

One thing that I think we can take as a given.  This issue will be headed back to the Supreme Court of Canada.

June 20, 2012

Banks feeling the weight of an aging population

It appears that the senior’s discount may become more rare in years to come.  What’s next – senior’s rates at the movies?

http://www.theglobeandmail.com/globe-investor/personal-finance/seniors-beware-the-age-of-no-cost-banking-might-be-ending/article4334603/

June 11, 2012

We Can’t Find the Deceased

While luckily rare, from time to time we need to deal with situations where a person has simply disappeared.  How do we deal with the estate?  Most jurisdictions have legislation in place to deal with this possibility.  In Ontario, under the Declarations of Death Act, 2002 (the “Act”), the Court can, on application by an interested party (a defined term) make an order declaring that an individual has died.  Under s. 2(4) and 2(5), the Court can make such an order if it is satisfied that either:

            s. 2(4)

(a)        the individual has disappeared in circumstances of peril;

(b)        the applicant has not heard of or from the individual since the disappearance;

(c)        to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;

(d)        the applicant has no reason to believe that the individual is alive; and

(e)        there is sufficient evidence to find that the individual is dead.

or;

            s. 2(5)

(a)        the individual has been absent for at least seven years;

(b)        the applicant has not heard of or from the individual during the seven-year period;

(c)        to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual during the seven-year period;

(d)        the applicant has no reason to believe that the individual is alive; and

(e)        there is sufficient evidence to find that the individual is dead.

 In both instances, all of the elements of the section must be established.  Of course s. 2(4) allows for a declaration to be made much earlier, but requires an applicant to show that the person “disappeared in circumstances of peril”.  Such circumstances cannot be exhaustively defined and the Courts have found little guidance from the caselaw.  In Poole v. Poole, the Court referenced some more obvious situations, such as disappearance while on a boat where only an empty boat is found, or while climbing in an avalanche zone.  However, that Court also found that circumstances of peril will, in proper circumstances, include “severe depression and risk of suicide”.  Using the Oxford English Dictionary definition of “peril” as “a situation of serious and immediate danger”, the Court held that a psychiatrist’s finding that a person was “in real danger of harming himself” was sufficient to categorize a suspected suicide (where no body was found) as circumstances of peril.

The date of death will often be important as it may determine whether a party or his or her issue do or do not have a right to share in a deceased’s estate (for example where a will requires that a beneficiary survive the testator for a period of time and the beneficiary has died prior to the application under the Act).  Subsection 2(8) of the Act states that the order of the Court declaring a person deceased shall state the date of death, which shall be:

(a)        the date upon which the evidence suggests the person died, if subsection 2(4) applies; or

(b)        the date of the application, if subsection 2(5) applies

 However the Act does leave discretion for the Court to declare a date of death other than that required by subsection 2(8) if the Court is of the opinion that it would be just to do so in the circumstances and that it would not cause inconvenience or hardship to any of the interested persons.

What if he walks through the door?

Despite an order declaring a person dead, that person may one day show up – what then?  The Act strives for finality through s. 6, which states that if an order that applies for the purpose of dealing with an individual’s estate has been made under s. 2 and all or part of the estate has been distributed accordingly, the distribution is final even if the individual is afterwards discovered to be alive, and the individual is not entitled to recover the distributed property.  The section does allow discretion to the Court not to apply this section and require a reconveyance in appropriate circumstances, usually to prevent a fraud.

Other Legislation

One should be aware that other legislation also deals with presumptions of death, in particular s. 209 of the Insurance Act.