Physician Assisted Death – Ontario Superior Court Issues Practice Advisory

As discussed in an earlier post, in February 2015 the Supreme Court of Canada declared that portions of the Criminal Code that make it an offence to aid or abet a person to commit suicide are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.  The declaration of invalidity was suspended for 12 months, until February 6, 2016, to allow time for the government to determine what, if any, legislative approach was appropriate to deal with the Court’s decision – in other words, what guidelines should be put in place to allow for physician-assisted death.

In January of this year, the Federal government requested a six-month extension of the suspension.  With the exception of Quebec, the Court granted a four-month extension but directed that during that time period, applications may be brought to provincial superior courts for exemptions to permit individual cases of physician-assisted death to proceed so as not to “unfairly prolong the suffering of those who meet the clear criteria we set out in Carter“.

On February 2, the Ontario Superior Court of Justice issued a practice advisory dealing with the procedure and evidentiary requirements for exemption applications in Ontario.  Of note is the direction concerning evidence to be included, stating that the application “should” (read – “had better”) include affidavit evidence from (1) the applicant; (2) the attending physician; (3) a consulting psychiatrist; and (4) the physician proposed to assist death.  The evidence to be provided must lead the Court to conclude that the applicant:

  • has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering
  • as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant
  • has the mental capacity to make a clear, free, and informed decision about a physician assisted death
  • will be physically incapable of ending his or her life without a physician assisted death
  • consents without coercion, undue influence, or ambivalence to a physician assisted death
  • makes the request for authorization for a physician assisted death freely and voluntarily

Given the relatively short extension (by which time guidelines should be in place) and the evidence necessary to obtain the exemption, I would not expect there to be more than a handful of exemption applications.

 

 

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