Questions and Answers

Since the SCC’s decision in Carter meant that medical assistance in dying would become legal in Canada, it was the responsibility of the government to put forward clear rules around who is eligible to obtain medical assistance in dying, what safeguards must be followed to ensure that vulnerable individuals are protected, and to create a monitoring regime to ensure accountability, transparency, and public trust in the system. Federal legislation also ensures a consistent approach to medical assistance in dying across Canada.

Additionally, the Government has committed to working with provinces and territories to explore options to support access for patients who want access to medical assistance in dying in a manner that supports the personal convictions of health care providers. The Government has also, committed to working with the provinces and territories to improve palliative care during discussions on a new health accord.

There have been many consultations over the past year on the issue of medical assistance in dying, and the results of all those activities have been taken into account in developing the legislation.

On December 11, 2015, the Special Joint Committee (SJC) on Physician-Assisted Dying was established to review recent consultation activities, including those of the External Panel on Options for a Legislative Response to Carter v. Canada and the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying. The Committee also consulted with Canadians and stakeholders, and made recommendations on the framework of a federal response to Carter. The SJC held 16 meetings, heard from 61 witnesses, received over 100 briefs, and tabled its final report in Parliament on February 25, 2016, which included 21 recommendations on eligibility, procedural safeguards, oversight and monitoring, and other health sector implementation issues and responses.

Some form of medical assistance in dying is regulated under legislation in four US states (Oregon, Washington, Vermont and California), in Colombia, and in three European countries (Belgium, the Netherlands, and Luxembourg, i.e., “Benelux”). There are similarities and differences between which form of medical assistance in dying is allowed, who is eligible, and the procedures to be followed.

In Switzerland, assisted suicide is not a crime if the person providing assistance does not do so for a selfish motive. The practice is not specifically regulated; it is carried out by several distinct “right to die” organizations, each with its own protocols. Generally, eligibility is similar to that under the laws of the Benelux countries. Voluntary euthanasia is prohibited.

Yes. This legislation would ensure that individuals whose circumstances were considered by the court in Carter could obtain access to medical assistance in dying. See question specific to Kay Carter.

While the Supreme Court of Canada did not explicitly say that its ruling was “limited to individuals who are nearing death, it expressly stated that: ”[t]he scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations in which physician-assisted dying may be sought.” (para. 127) In legal terms, the effect of these words is that the declaration is limited to persons like Ms. Taylor, a person who was nearing death.

Gloria Taylor was suffering from the fatal disease of ALS and was in an advanced state of irreversible decline in capability. When she joined the litigation, she had a prognosis of one year to live, in other words, her natural death had become reasonably foreseeable. Under Bill C-14, people like Ms. Taylor would be eligible for medical assistance in dying. But Bill C-14 goes farther than the circumstances of Ms. Taylor in two ways: the legislation expressly states that a specific prognosis of time remaining left to live is not required, and that that reasonable foreseeability of death is a function of “all” of a person’s medical circumstances, meaning that they do not have to be dying from a fatal or “terminal” disease.

The SCC did not define “grievous and irremediable medical condition”; rather, it acknowledged that it was Parliament’s task to “weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying”. This is what Bill C-14 does: it defines eligibility in a manner that is consistent with Carter in its entirety, thus bringing certainty and clarity to the assessment of eligibility.

The amendments would allow two types of medical assistance in dying:

1. where a physician or nurse practitioner directly administers a substance that causes the death of the person who has requested it - commonly called voluntary euthanasia; and
2. where a physician or nurse practitioner gives or prescribes to a person a substance that they can self-administer to cause their own death - commonly known as physician-(or medically-) assisted suicide.

No. Any mentally competent adult who has a serious and incurable illness, disease or disability, who is in an advanced state of irreversible decline in capability, who is suffering intolerably, and whose death has become reasonably foreseeable, should have access to medical assistance in dying, by making a voluntary request giving informed consent.

It is not required that the person be suffering from a fatal disease that will cause their death. Rather, the legislation expressly states that death must be “reasonably foreseeable, taking into account all of their medical circumstances,” which could include considerations of age or frailty, and the interaction of several different medical conditions which may cause the person to be in a life-threatening condition. This language was deliberately chosen to avoid limiting assistance to those suffering from fatal or “terminal” conditions, and to allow everyone who is in suffering while in decline toward the end of life to have the option of choosing a medically-assisted death.

The Carter ruling was limited to adults (see paragraph 127 of the decision). There was no evidence before the Court about assessing a minor’s ability to make a decision involving terminating their life, nor about how medical practitioners might respond to such cases. The Supreme Court of Canada expressly acknowledged that the issue of medical assistance in dying for minors was not part of the factual circumstances being considered by the Court (paragraph 111 of the decision).

However, if Bill C-14 passes in Parliament, the government would initiate an independent review to study the legal, medical and ethical issues related to medical assistance in dying for mature minors and in other contexts within 180 days of the legislation receiving Royal Assent. This will enable the development of the approach to this study, and the study itself, to be informed by the considerations and perspectives that will be expressed during the Parliamentary study of the Bill.

As noted in the Supreme Court’s decision in Carter, “Kay was diagnosed in 2008 with spinal stenosis, a condition that results in the progressive compression of the spinal cord. By mid-2009, her physical condition had deteriorated to the point that she required assistance with virtually all of her daily activities. She had extremely limited mobility and suffered from chronic pain.” (para 17). Kay Carter was 89 years old when she went to Switzerland to obtain assisted dying.

Under the proposed legislation, two independent health care professionals would need to evaluate the circumstances of a patient’s health. The circumstances of Kay Carter could have been found to meet the following four eligibility criteria to receive medical assistance in dying:

1. Having a serious and incurable illness, disease or disability;
2. Being in an advanced state of irreversible decline;
3. Enduring physical or psychological suffering that was intolerable to her; and,
4. Her natural death had become reasonably foreseeable, taking into account all of her medical circumstances, without a prognosis necessarily having been made as to the specific length of time left to live. (it is not required that death be caused by any particular disease or condition - it can include considerations of age or frailty, and all other relevant health considerations).

People with a mental illness would be eligible for medical assistance in dying, as long as they met all of the eligibility criteria.

Where death is not reasonably foreseeable in all of the circumstances of the person’s medical condition or where their mental illness renders them incompetent to make medical decisions, people with psychiatric conditions would not be able to access medical assistance in dying, because they would not meet all of the eligibility criteria.

In terms of the Carter ruling there was no evidence before the Court about the specific considerations and complexities regarding medical assistance in dying for people suffering solely from amental illness, and no witnesses or parties to the case were in such circumstances. In fact, the Court said at paragraph 111, in regards to evidence from Belgium: “a number of recent, controversial and high-profile cases of assistance in dying in Belgium ... would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders...”.

Medical assistance in dying for people suffering solely from a mental illness involves a unique range of considerations and concerns, and more study is needed to determine the relative benefits and risks associated with permitting assistance in dying in this context in Canada.

If Bill C-14 passes in Parliament, the government is proposing an independent study be conducted of the legal, medical and ethical issues related to medical assistance in dying for those suffering from a mental illness alone. This would enable the development of the approach to this study, and the study itself, to be informed by the considerations and perspectives that will be expressed during the Parliamentary study of the Bill.

Advance directives, by their nature, are made before they are needed and are only actioned when a person can no longer communicate. People who cannot communicate cannot confirm whether or not they still consent to the procedure requested in the advance directive. The ability to withdraw consent is a key safeguard in the Bill to protect vulnerable individuals.

Furthermore, the Carter ruling was limited to mentally competent adults who clearly consent at the time that medical assistance in dying would be provided. There was no evidence before the Court regarding the unique considerations of advance directives.

However, in recognition of these difficult circumstances, the legislation does permit the reflection period of 10 days to be shortened to any shorter period of time if it appears to both medical practitioners that the person’s loss of capacity to consent is imminent.

In testimony before the Special Joint Committee on Physician-Assisted Dying, the Alzheimer’s Society of Canada warned that the “risks are just too great” to allow medical assistance in dying when a person is no longer competent to express their wishes.

If Bill C-14 passes in Parliament, the government is proposing an independent study of the legal, medical and ethical issues related to advanced requests for medical assistance in dying. This would enable the development of the approach to this study, and the study itself, to be informed by the considerations and perspectives that will be expressed during the Parliamentary study of the Bill.

Any nurse practitioner whose provincial and territorial laws and professional rules and standards allow them to provide medical assistance in dying would be able to do so without fear of criminal sanction.

Nurse practitioners have the authority to deliver many of the same medical services as family physicians; they can assess, diagnose, prescribe and treat patients. They can act independently in every jurisdiction except Quebec, where they practice under the authority of a physician.

Exempting nurse practitioners from criminal liability would provide provinces and territories with an additional option to facilitate access to medical assistance in dying.

It would not be a crime for a physician or nurse practitioner, or other health care professional (such as a social worker, psychologist, psychiatrist or therapist), to provide information about how to request medical assistance in dying in a lawful manner. However, it would remain a crime to provide a person with information that would enable them to take direct action to end their life in an unlawful manner, such as where to find certain deadly chemicals that could be ingested to cause death.

It would also remain a crime for anyone, including physicians and nurse practitioners, to encourage, counsel, advise, recommend, or in any way try to influence a person to seek to end their life. Physicians and nurse practitioners - and others in a caregiving relationship with a patient, or those in a relationship of authority or responsibility over a patient - should take care to avoid inadvertently encouraging someone to choose medical assistance in dying.

Many of the drugs commonly used for this procedure are already marketed in Canada, and are prescribed for common purposes, such as pain control, anaesthesia, and nausea.

Decisions by physicians and nurse practitioners to use specific drugs for specific patients are considered within the practice of medicine and guided by clinical practice guidelines and protocols.

Health Canada, as the regulator of drug products, works with partners as appropriate to enable access for Canadians to safe and effective health products through scientific reviews.

Canadians have clearly indicated that they want to maintain their independence and receive care at home, including at the end of their lives.

As part of a multi-year health accord, the federal government has committed to providing $3 billion over the next four years to improve home care, including palliative care.

Recently, federal, provincial and territorial ministers of health agreed to work individually and collectively on improving home care to better meet the needs of patients closer to home, including those who need palliative care.

Monitoring would be critical for transparency and public accountability of medical assistance in dying, as well as to evaluate whether the law is achieving its goals of respecting autonomy for eligible persons to choose medical assistance in dying, while protecting vulnerable persons and the conscience rights of health care practitioners. Monitoring would ensure that high-quality, comparable Canadian data is generated so that any future discussions about changes to the medical assistance in dying system could be made based on the best possible evidence. Monitoring would help Canadians understand, for example, the number of requests for medical assistance in dying (approved and not approved), demographic information about the persons who request medical assistance in dying, whether there are regional differences in how medical assistance in dying is being carried out across Canada, the types of medical conditions that motivate requests, and whether the procedural safeguards in the law are working as intended.

Nearly all jurisdictions that permit a form of medical assistance in dying have established monitoring systems for these purposes. The proposed legislation empowers the Minister of Health to make regulations about the information to be collected and the processes for collecting it and reporting on it.

The Government would work with provinces and territories in developing these regulations and in establishing an interim system until a permanent process is in place.

The Bill would amend definitions of various terms in the Pension Act and the Canadian Forces members and Veterans Re-establishment and Compensation Act to ensure a Canadian Forces member or veteran who dies after receiving medical assistance in dying would not have their survivors’ entitlement to pensions or other benefits affected. The amendments to these two acts would also deem that a member or veteran’s death in these circumstances would be considered as resulting from their underlying medical condition, not medical assistance in dying itself.

The Bill would also amend section 19 of the Corrections and Conditional Release Act to clarify that if a federal inmate were to receive medical assistance in dying, there would not be a requirement for the Correctional Service of Canada to conduct a separate investigation into such a death.

The federal government provides some direct and indirect health services to federal populations, such as First Nations and Inuit, immigration detainees, refugee claimants, federal inmates, veterans, members of the Armed Forces and the Royal Canadian Mounted Police.

These departments would determine how best to serve their client populations, although it is likely they would align with provincial and territorial approaches for implementation, with consideration for the particular challenges of their populations.

The legislation will apply to all Canadians, including First Nations. However, the provision of medical assistance in dying raises some specific issues and implications for First Nations and Inuit communities in Canada, particularly with respect to their unique geographical and cultural characteristics.

Federal, provincial and territorial ministers of health agreed to work together and with Indigenous leaders to improve the coordination, continuity and appropriateness of health services for Indigenous peoples.

The eligibility criteria for some Veterans Affairs Canada benefits available to eligible survivor(s) currently require that the Canadian Armed Forces member’s or Veteran’s death was as a result of a service-related injury or disease, or a non-service related injury or disease that was aggravated by service.

Veterans Affairs Canada will be making changes to its legislation to be able to provide benefits to eligible survivors in cases where the underlying cause of a Canadian Armed Forces member’s or Veteran’s death was a service-related medical condition, and the manner of death was medical assistance in dying. As a result of these changes, medical assistance in dying, is not “willful self-inflicted wounding” for the purposes of benefit eligibility.

Inmates in federal institutions who meet all of the eligibility criteria in the proposed legislation would be able to have access to medical assistance in dying while in federal custody.

Parliament has exclusive jurisdiction over the criminal law, including exemptions from otherwise applicable offences. In the case of medical assistance in dying, the proposed legislation sets out who is eligible to receive medical assistance in dying, and what safeguards must be applied, for medical practitioners to be protected from criminal responsibility.

Provinces and territories cannot modify the Criminal Code requirements through their own legislation in such a manner as to make lawful something that is not permitted under the criminal law. However, they can legislate with respect to other aspects of medical assistance in dying under their jurisdiction over health. They could create laws that address other aspects of medical assistance in dying, such as whether any special training is needed to provide medical assistance in dying, whether specific forms should be used, and how the cause of death should be recorded on the death certificate in the case of medical assistance in dying. At the moment, only Quebec has specific legislation in place.

Provinces and territories could add restrictions on access through legislation. Depending on what any such law might do, it could be challenged as violating rights under the Charter of Rights and Freedom. Whether or not provinces or territories pass medical assistance in dying-related laws or regulations, the criminal law would no longer prevent eligible patients from accessing medical assistance in dying.