Publications
February 2016
PFD | Insurance

Physician assisted death: how far have we come?

By Annie-Claude Ménard, François Alexandre Guay

Since it was passed on June 5, 2014, the Act respecting end-of-life care has been the subject of extensive media focus and much debate. In Québec, the courts were recently called upon to consider the constitutionality of certain articles set out in the Act. And in a ruling in February 2015, the Supreme Court of Canada handed down a decision in a British Columbia case on the constitutionality of the prohibitions pertaining to physician-assisted death in the Criminal Code. In light of these developments, it is important to take stock of the distance covered thus far.

Physician-assisted dying has always raised legal debates on the power of federal Parliament to prohibit doctors from helping patients to die under the Criminal Code and the jurisdiction of provincial legislatures such as the National Assembly of Québec over healthcare services in hospital settings.

It is important to remember that the Act respecting end-of-life care stems from a lengthy public consultation process undertaken in Québec, including the highly publicized work of the Select Committee on Dying with Dignity. The Act is the first in Canada to allow and regulate physician-assisted death by addressing it from the perspective of the continuity of care provided to patients by healthcare centres. It establishes a series of stringent criteria in a restrictive framework. The Act was passed in June 2014 but most of the articles only came into effect in December.

On February 6, 2015, after the Act had been adopted in Québec, the Supreme Court of Canada issued a landmark ruling in a BC case?Carter v. Canada (Attorney General) (2015 SCC 5)?that essentially challenged the constitutional validity of the provisions of the Criminal Code that prohibit physicians from assisting their patients in dying. The nation's highest court invalidated the provisions, stating that they deprived patients of their fundamental right to life, liberty and security, and then suspended the ruling for twelve months to allow the federal government to amend its laws so as to avoid a legislative gap. Proponents of Québec's Act respecting end-of-life care welcomed the decision.

Though the suspension is set to end in February 2016, the election and coming into power of the new government has slowed the legislative process since the ruling was handed down. The Supreme Court therefore granted a four-month extension of the suspension (2016 SCC 4), except in Québec, where the provisions of the Criminal Code will be declared invalid as of February 6, 2016. The extension was waived at the request of the Attorney General of Québec to avoid creating confusion with the coming into effect of the Act respecting end-of-life care. The legislative changes will be applicable throughout Canada in June 2016. In Québec, the coming into effect of the Act had been contested. Last fall, Ms. Lisa D'Amico, a seriously ill patient, and her physician Dr. Paul J. Saba challenged the validity of the articles in the Act respecting end-of-life care allowing physician-assisted dying and sought to provisionally suspend their coming into force on December 10, 2015. On December 1, 2015, Justice Michel Pinsonnault of the Superior Court ruled (2015 QCCS 5556) and suspended the application of the province's dying with dignity legislation, stating that it was incompatible with the provisions of the Criminal Code, which had not yet been invalidated (scheduled for February 6, 2016).

The Attorney General of Québec appealed the ruling. On December 22, the Court of Appeal rendered its judgment (2015 QCCA 2058) and overturned the Superior Court's decision, stating that legislation could not be invalidated based on its incompatibility with other legislation that had previously been struck down. In other words, the articles of the Criminal Code that had been invalidated by the Supreme Court in the Carter ruling could not be invoked to challenge the validity of the articles set out in the Act respecting end-of-life care.

In fact, the Act respecting end-of-life care is now in effect in Québec and may be applied by medical teams in healthcare facilities. The courts will undoubtedly be called upon to interpret the articles in the near future. For more details on the criteria for physician-assisted death, do not hesitate to contact us or consult the Portail santé et mieux être of the Ministère de la Santé et des Services Sociaux du Québec, which provides information for citizens: http://sante.gouv.qc.ca/en/programmes-et-mesures-daide/loi-concernant-les-soins-de-fin-de-vie/.