Apr 14th, 2016
OTTAWA: Today the Justice Centre for Constitutional Freedoms responded to the Government of Canada’s tabled draft legislation to regulate physician-assisted suicide, which the Government refers to as “medical assistance in dying” (“MAID”). The proposed legislation, Bill C-14, is in response to the 2015 Supreme Court of Canada decision in Carter v. BC (Attorney General) (“Carter”).
The Government’s tabled legislation, Bill C-14, includes:
- Protection for the vulnerable by restricting MAID to mentally competent adults; persons under 18 years of age and the mentally incompetent will not be eligible;
- Prevention of MAID tourism by requiring a patient’s participation in Canada’s public health care regime prior to eligibility for MAID;
- Restriction of MAID to persons with physical illnesses; and
- Institution of parliamentary review of the legislation every five years.
Bill C-14 does not require physicians, nurses or other health care workers to participate in, or refer for, physician-assisted suicide. However, Bill C-14 fails to include express protection for medical practitioners and institutions to refuse to participate in or refer for MAID. Rather, the federal Government has left implementation to the discretion of the provinces and territories, including the setting of criteria by which physicians and institutions may refuse or deny MAID.
Justice Centre staff lawyer Jay Cameron provided initial comments on Bill C-14, stating:
“Bill C-14 is a significant improvement over the recommendations of the Parliamentary Sub-Committee. We are pleased to note the valuable protections for vulnerable patients, specifically the restriction of MAID to patients over the age of 18 years with an actual physical ailment. However, we are disappointed to note the lack of protections in Bill C-14 for both the conscience and religious rights of individual doctors and other health care workers, and the rights of Catholic, Jewish and other religious hospitals to carry out their mission in accordance with their beliefs. We deem such protections necessary, especially given the concerning positions of some of the provincial colleges of physicians and surgeons.”
The Justice Centre for Constitutional Freedoms testified before a Joint Committee of the House of Commons and Senate on February 1, 2016, regarding what Parliament’s response should be to the 2015 Supreme Court of Canada decision in Carter v. BC (Attorney General). The Supreme Court of Canada struck down the Criminal Code prohibition on physician-assisted suicide. Parliament has until June of 2016 to pass new legislation to implement the Court ruling.
The Justice Centre’s Brief to the Joint Committee made clear that the Carter ruling does not compel doctors or other healthcare workers to cooperate unwillingly in a physician-assisted suicide (“PAS”). Rather, Carter specifically noted that physicians’ Charter-protected conscience rights are engaged by the decision of whether to participate in MAID. Carter was predicated on two key factual conditions: a willing patient and a willing doctor. The applicants in Carter all had willing doctors. They neither sought nor received a Charter right to compel doctors and other health care practitioners to provide, or refer for, physician-assisted suicide.
Titled Protecting Patients and Doctors: The Charter Rights of Medical Practitioners, the Justice Centre’s Brief to the Joint Committee of the House of Commons and Senate set out five recommendations:
Recommendation 1: The new federal legislation should provide explicitly that physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, can refuse to participate in, and refuse to refer for, physician-assisted suicide (“PAS”) or euthanasia.
- Outcome 1: There is nothing in the tabled legislation which provides explicitly that health care workers can refuse to participate in, and refuse to refer for, PAS, but no compulsory participation provisions were included.
Recommendation 2: Parliament should enact legislative protections for medical practitioners in a substantially similar fashion to those contained in the Civil Marriage Act.
- Outcome 2: The tabled legislation contains criminal exemptions for doctors and nurses who provide MAID, and for family members who assist in providing MAID, but there are no conscience-based protections as recommended by the Justice Centre.
Recommendation 3: The new federal legislation should mandate that the Application process for PAS be made to a Superior Court Judge on a permanent basis, as already established on an interim basis by Carter. Of all the available options to Parliament this is the best.
- Outcome 3: The Government has rejected this recommendation. Two medical practitioners or nurse practitioners only are required to execute MAID.
Recommendation 4: The new federal legislation should mandate a Parliamentary Review Board every 3-5 years to review the physician assisted suicides that have occurred and make recommendations for any legislative amendments.
- Outcome 4: The Government’s tabled legislation mandates parliamentary review every 5 years.
Recommendation 5: Parliament should note the constitutional infringements already apparent in the various guidelines released by the provincial Colleges of Physicians and the Canadian Medical Association, and codify the necessary protections in the pending legislation to prevent the erosion of practitioners’ rights.
- Outcome 5: While there is nothing in the Government’s legislation mandating medical practitioners to participate in or refer for MAID, there is also nothing in the legislation that codifies and protects the conscience of practitioners’ rights.