In conversation with Rosario G. Cartagena
As a member of the Health Law Group at Fasken Martineau in Toronto, Rosario Cartagena provides advice on a variety of health law matters, including corporate governance, public policy, government relations, risk management, privacy, health regulatory compliance, and health research. She also regularly assists in drafting agreements, related to corporate governance and regulatory compliance across the health sector. Prior to obtaining her law degree from the University of Ottawa, Ms. Cartagena completed a graduate degree in Public Health at the University of Alberta and she was also an intern at the Harvard School of Public Health, researching policies and laws around the world, which focused on people living with HIV-AIDS. In this interview with BioTuesdays.com, Ms. Cartagena discusses a Supreme Court of Canada decision in 2015 that declared the existing criminal prohibition on physician-assisted death to be unconstitutional and the proposed legislation, known as Bill C-14, which has come out of that ruling.
What is the history and forces that have shaped Bill C-14?
In 1993, the Supreme Court of Canada ruled 5-to-4 upholding the ban on physician-assisted suicide and against an application by Sue Rodriguez, who was diagnosed with ALS in 1991. In 1994, Ms. Rodriguez took her own life with the help of an anonymous physician. In the years that followed, there continued to be debate on the issue of physician-assisted death. Certain public surveys in the 1990s found that Canadians generally supported the right to die when diagnosed with an incurable, terminal disease and other surveys found that Canadians were not supportive of the right to die in these circumstances or that they were uncertain of their position. Nonetheless, the issue continued to be discussed and even resulted in a number of Private Member and Senate bills introduced in Parliament, which were ultimately unsuccessful. Eventually, Quebec’s end-of-life legislation (An Act respecting end-of-life care) came into force in December 2015.
How did the recent court ruling define medical aid in dying?
The Supreme Court of Canada in February 2015 held that the prohibition on physician-assisted death was void insofar as it deprives a “competent adult” of such assistance where the person affected clearly consents to the termination of life and the person has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual. The court found that the prohibition violated Section 7 of the Canadian Charter Rights and was not in accordance with the principles of fundamental justice.
What are the timelines the government is working under?
The court gave the government one year, until February 6, 2016 to consider its approach to physician-assisted death. But because of an election and a new federal government in Canada, the court this past January extended the deadline for the government to adopt the Charter of Rights decision (the government now has until June 6, 2016). Also in January, the Canadian Medical Association and Ontario College of Physicians and Surgeons released their guidelines and principles for physician-assisted dying, culminating in Bill C-14, which the new Liberal government introduced on April 14.
Who can administer medical assistance in dying?
Bill C-14 exempts medical and nurse practitioners from counselling or aiding a suicide and exempts them from culpable homicide, if they adhere to the provisions in the Bill. It would appear that nurse practitioners were included in the proposed legislation to aid individuals in rural areas where a medical practitioner may not be available. Bill C-14 also allows medical and nurse practitioners to prescribe or provide a substance to an eligible individual so that they may self-administer the substance at home and cause their own death.
Who is eligible? Who is not eligible? And what are the implications for both?
Eligibility under Bill C-14 covers people who are eligible for health services funded by the government of Canada. They must be at least 18 years of age and be capable of making health decisions, they must have a “grievous and irremediable” medical condition, and they must have made a voluntary request and have given informed consent. The proposed legislation defines grievous and irremediable as a serious and incurable illness, disease or disability in people who are in an advanced state of irreversible decline in capability. In addition, the illness, disease or disability or state of decline causes individuals enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that they consider acceptable. In addition, eligibility covers individuals where their natural death has become reasonably foreseeable, without a prognosis having been made as to the specific length of time they have remaining. It will be interesting to see how this final point is managed in medical practice. Mature minors under the age of 18 are not eligible for medical-assisted dying and it’s questionable whether people suffering from severe mental health issues would be eligible. The provinces, which regulate health care, also will have to address the question of doctors, pharmacists, institutions and anyone else providing care who conscientiously object to physician-assisted death.
What safeguards are included in the Bill?
The safeguards are framed for medical and nurse practitioners, who must ensure that request is made in writing and is signed and dated by the ill person or if unable to sign, another person who is at least 18 years old and who understands the nature of the request. In addition, requests must be signed and dated after the person has been informed that his or her natural death has become reasonably foreseeable. Medical and nurse practitioners must be satisfied that the request is signed and dated before two independent witnesses who also sign and date the request. In addition, the patient must be informed that he or she can withdraw their request at any time and ensure that there are at least 15 days between the signed request and the application of the request, or fewer days, if both medical and nurse practitioners are of the opinion that the person’s death or loss of capacity to provide informed consent is imminent. In addition, the Bill gives the person an opportunity to withdraw their request and ensure that the person gives express consent before receiving the lethal dose. It’s unclear how expressed consent will apply in medical practice if the patient, for example, is in and out of consciousness near the end of his or her life.
How does the bill define independent witnesses?
They cannot be beneficiaries under the will of the person making the request, recipients of financial or other material benefit resulting from death, owners or operators of any health care facility where the ill person is being treated or resides, or providing personal care to the patient. Medical and nurse practitioners cannot be in a business relationship with the other practitioner, cannot be a beneficiary under the patient’s will or recipient of financial benefit, other than standard compensation, and cannot be connected to the other practitioner or patient in a way that would affect their objectivity.
Are there penalties for not complying with provisions in the Bill?
The Bill is framed in the Criminal Code and there are strict repercussions for medical and nurse practitioners and other individuals if they do not comply. These include imprisonment of two years or more on conviction.
The Bill must now be debated in the House of Commons and the Senate. If it’s not passed before the deadline of June 6, 2016, there will not be a federal legislative framework for physician-assisted death in Canada and it will be up to each individual province to decide whether or not to pass laws related to physician-assisted death (including what would be contained in those laws). Nonetheless, if the Bill is passed, it is likely that provincial governments and regulatory colleges will implement further regulations to address any matters that have not been addressed by the Bill, such as conscientious objection by regulated health professionals and institutions.