Posts tagged ‘health’

April 14, 2016

Medically Assisted Death Bill Introduced in Parliament

On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

  • be 18 years of age and capable of making decisions with respect to their health;
  • have a grievous and irremediable medical condition;
  • have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
  • give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”.  The government has defined it in the bill as requiring all of the following:

  • a serious and incurable illness, disease or disability;
  • an advanced state of irreversible decline in capability;
  • enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and
  • natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

  • be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;
  • ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;
  • ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
  • ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;
  • immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying.  A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out.  The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards.  Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent.  Minors are clearly not eligible and will be the subject of further study.  As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering.  However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent.  Connected to this issue is the matter of advance consent.  What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability?  If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment.  This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill.  Given what is really a short period of time to deal with such a large social issue, this was not unexpected.  Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.


March 17, 2016

First Ontario Physician-Assisted Death Approved

Justice Paul Perrell of the Ontario Superior Court of Justice today granted the application of an 81-year-old man, permitting him to proceed with a physician-assisted death.  Known as A. B., the applicant has aggressive, advanced stage lymphoma.

The application is the first granted in Ontario since the Supreme Court of Canada’s decision in Carter.  A. B. met the Superior Court of Justice’s test for an exemption under Carter.  The test is a temporary measure put in place while the federal government deals with a legislative framework for physician-assisted death.

Read more here and here

February 11, 2016

Lifestyle, education and dementia

Some interesting news about lifestyle and education and their potential relationship to certain types of dementia.

The originating article is in the New England Journal of Medicine but you will need to be a subscriber to read it.

February 4, 2016

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.



August 28, 2015

77% of Canadians Support Assisted Dying

This article in the Toronto Star is an interesting reflection of the sentiment of most Canadians on the subject of physician assisted dying.  It also illustrates somewhat of a divide between ordinary citizens and those who would be tasked with complying with the law in making a dignified death possible – physicians.

December 11, 2013

G8 Dementia Summit Gets Underway

The G8 Dementia Summit starts today in London, bringing together ministers, researchers, pharmaceutical companies and charities to discuss the many facets of an increasingly prevalent condition.  The World Health Organization estimates that worldwide, 35.6 million people have dementia and 7.7 million new cases are added every year. 65.7 million people will be living with dementia globally by 2030 and 115.4 million by 2050, with much of the increase occurring in developing countries.  1.4 million Canadians are expected to be affected by 2040.

The conference can be viewed live.

November 13, 2013

One Take on the Rasouli Decision

Many have commented on the recent Supreme Court of Canada decision in the Rasouli case and it is interesting to hear different views. The case deals with one aspect of how we deal with end of life decisions. The issue – who decides when life support should or should not be continued where the measures may have no medical or quality of life benefit to the patient? The Court upheld the decision of the courts below, holding that where a substitute decision maker under the Ontario Health Care Consent Act (“HCCA”) does not consent to the withdrawal of life support, even where the patient’s physician is of the opinion that life support does not provide a medical benefit to the patient, a physician’s only remedy is an application to the Consent and Capacity Board (the “Board”) established under the HCCA. The Board’s power is to review the decision of the substitute decision-maker to determine whether she has complied with the rules for giving or refusing consent to treatment set out in the HCCA. If the Board finds that she has, apart from any appeal available under the HCCA, life support will continue and the physician has no further legal recourse.

In my view, and I believe the view of most commentators, the decision was not unexpected. What I found interesting about the case though was the fact that it was not a majority decision. Two Justices, Abella and Karakatanis, dissented from the majority. To me, the dissent reflects some of the differing views of Canadians on this subject.

It is notable that the majority went to some lengths to narrow the issue as much as possible and not address a greater societal debate. The Court held that the issue could be decided on a straight-forward statutory interpretation basis. The majority found that its sole role was to determine if the HCCA applied in this situation. It found that it did because life support was found to be “treatment” under the Act as it is for a “health related purpose”, part of the definition of treatment under the HCCA. The Court rejected the doctors’ submission that to fall within the HCCA, the treatment must be of a medical benefit, holding that to do so find would substitute physician-made criteria for the decision-making criteria set out in the HCCA. As life support is treatment, the procedure to be followed in challenging the substitute decision-maker’s decision to continue life support is that set out under the HCCA.

The minority decision takes a more, might I say, political view. It concluded that the HCCA codifies the common law right to refuse treatment but does not give patients, or their substitute decision-makers, the right to “insist on the continuation of a treatment that is futile, harmful, or contrary to professional medical standards of care”. These Justices determined that, at first instance, a physician should be permitted to determine whether life support has any chance of being medically effective and whether withdrawal of the treatment is in the best interests of the patient. That decision must be made within the professional standard of care at common law and is subject to review by the courts. This determination necessarily includes consideration of the patient’s wishes, values and beliefs, in addition to the broad mental and physical implications for the patient’s condition and well-being, all within the framework of governing legal principles.

The minority held that to do otherwise (ie. submit the issue of withdrawal/continuation of life support to the decision-making process under the HCCA) gives too much decision making power to the substitute decision-maker and would have a detrimental impact on the standard of care and legal, ethical and professional duties in the practice of medicine. The minority held that there must be a balance between patient autonomy and the physician’s role, expertise, and advice. It also found that “there are a myriad of important interests, such as the integrity of our health care system, at stake”. Of course, the “integrity of our health system” could include many socio-economic considerations.

The approach of the majority in confining the case to the narrowest of legal issues illustrates to me that the matter of end of life decisions is one that the courts would prefer to leave to the legislature (as would be expected), where the greater societal debate can be played out. The position of the minority reflects one view within that debate.

April 2, 2013

The Law and Mental Disorders – A Balancing Act

The balance of individual constitutional rights against the legislative objective of providing medical care to individuals suffering from mental disorders can lead to curious results. One such result was illustrated in the recent appeal from the Ontario Consent and Capacity Board (the “Board”) to the Ontario Superior Court of Justice in Gradek v. Shafro.

Mr. Gradek “suffered from a schizoaffective disorder, a bipolar subtype with features of mania”. Mr. Gradek did not agree with this diagnosis and denied that he has a mental disorder. He was admitted to a psychiatric facility on an involuntary basis by means of a physician’s certificate under subsection 20(5) of the Ontario Mental Health Act (“MHA”). He was also found by his physician to be incapable of consenting to or refusing treatment for his disorder with anti-psychotic and mood stabilizing medications (subsection 4(1) of the Health Care Consent Act (“HCCA”)). Both of these findings were upheld by the Board. Mr. Gradek appealed.

Subsection 20(5) of the MHA sets out the conditions for involuntary admission of a patient to a psychiatric facility by a physician. Those conditions require that the attending physician, after examining the patient, be of the opinion that the patient is suffering from a mental disorder of the nature or quality that likely will result in serious bodily harm to the patient or another person, or result in serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility.

The Board found that Mr. Gradek’s mental disorder would likely result in serious bodily harm or serious impairment to him. On the facts of this case, the Court did not agree. It agreed that Mr. Gradek suffered from a mental disorder but found that evidence of serious harm or impairment was insufficient. As a result, the Court granted the appeal with respect to the involuntary admission. The effect was that Mr. Gradek could not be held in the facility on an involuntary basis.

However, the Court did agree with the Board’s finding that Mr. Gradek was incapable of consenting to or refusing treatment in connection with his mental disorder. Under the HCCA, such a determination requires a finding that a person is not able to understand information that is relevant to making a decision about treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Based on Mr. Gradek’s diagnosis, the Court was satisfied that this test had been met. In these circumstances, a substitute decision-maker could make the decision to consent or refuse treatment on Mr. Gradek’s behalf. Unfortunately, he did not have a suitable substitute decision-maker (Mr. Gradek’s mother was a substitute decision-maker but appeared unwilling to continue in that role) *.

Mr. Gradek made it clear that if discharged, he would not take medication for his condition (not surprising given that he did not accept that he has a mental disorder). The net effect then of the Court’s decision is that Mr. Gradek could not be kept involuntarily but will not, at least for the time being, be treated for his disorder.

The decision illustrates how the Courts will jealously guard an individual’s s. 7 Charter right to liberty of the person by strictly applying legislation that may limit that right. In the proper circumstances, the limitation will be allowed. Those circumstances did not exist in this case. The effect of this decision though, is that a person deserving of treatment may not receive it. A price we pay for our constitutional freedoms or a hole in the constitutional/legislative framework? – depends in your perspective.

* The judge did posit that an option here is to arrange for the appointment of a new substitute decision-maker

November 16, 2012

Alzheimer’s risk gene points to role of inflammation

“Scientists have identified a new gene variant that seems to strongly raise the risk for Alzheimer’s disease, giving a fresh target for research into treatments for the mind-robbing disorder” – see

November 14, 2012

What might “brain viewing” technology mean for the law concerning consent and capacity

The article below shows how advances in medicine have permitted doctors to communicate with a man in what was believed to be a persistent vegetative state.  By looking at brain activity through MRI, doctors were able to ask the patient questions and interpret the brain activity as yes or no responses.  Most importantly, they were able to determine that the patient was not in pain, allowing him a direct say in his care. 

While good news in and of itself, this advance, and those that are certain to follow, will undoubtedly impact on how some personal care decisions will be made in future.  In circumstances where medical professionals and a substitute decision-maker at are odds regarding the care of a loved one, in particular in dealing with end of life issues, wouldn’t it be wonderful if we could ask the patient.  While the circumstances of this gentleman’s state of health appear to be quite different from those that the Supreme Court of Canada will be dealing with in the Rasouli case or Desmond Watson’s situation, perhaps one day the role of the courts in these matters will be but a memory.–vegetative-ontario-man-scott-routley-talks-to-researchers-through-brain-scans