Safeguards are in place if assisted dying legislation isn’t ready in time

With "elbowgate" distracting Parliamentarians, and continued disagreement over the contents of assisted dying legislation it looks less likely that Parliament will pass Bill C-14 in time for the Supreme Court of Canada's June 6 deadline.

With “elbowgate” distracting Parliamentarians, and continued disagreement over the contents of assisted dying legislation it looks less likely that Parliament will pass Bill C-14 in time for the Supreme Court of Canada’s June 6 deadline. The bill was supposed to come to a vote last week but the House of Commons became otherwise distracted by more important matters – namely the need to castigate the Prime Minister for his afternoon temper tantrum this past Thursday.

Meanwhile the legislation still has to make its way through the Senate before becoming law and several senators have already expressed doubts that there is sufficient time to do so. There is also still significant disagreement in the red chamber about the bill in its current form.

So what will happen if that date comes and goes? Will it be a complete free for all? Will we, as a society, quickly descend into lawlessness?

Despite the Attorney General’s pleas to the contrary, I think the correct answer is no. The Supreme Court decision that started this process in motion set a standard for who qualifies for assisted dying that is clear and understandable for everyone except perhaps the federal Justice Department, which has chosen to thumb its nose at the court.

Ending the life of someone without their permission or without the existence of a “grievous and irremediable condition” will still be murder with all the legal consequences and sanctions that come along with it. It is not as if there is a complete vacuum in the law.

And while Parliament has dithered on the issue others have been quietly putting the procedural details in place.

Canada is, after all, a federation and the provinces and territories actually have quite an important role to play on this particular issue. Unlike criminal law – which falls to Parliament to legislate – the regulation of the health profession (and by extension the power to set the bar for medical ethics) is a matter for provincial and territorial regulators. Here in the territory the job falls to the Yukon Medical Council.

As was reported earlier this year the Yukon Medical Council has long since prepared a document in conjunction with the College of Physicians and Surgeons of Alberta providing guidance to members for how to navigate this new area. Those guidelines – combined with the Supreme Court of Canada’s decision in Carter – will set the ground rules if Parliament is unable to Act by June 6.

The guidelines produced by the Yukon Medical Council cover many of the same details as Bill C-14. The patient must be suffering from a “grievous and irremediable condition”. An opinion from a separate doctor is required to confirm that the patient meets that criteria, is a “competent adult”, and has made an “informed and voluntary decision”. If necessary a psychiatric consult will be required.

The guidelines require that the patient be provided with certain information including “other treatment options”, the “opportunity to rescind the request for [physician assisted dying] at any time” and even a “recommendation to seek legal opinion on life insurance implications”.

The guidelines require a “period of reflection” between the making of a request and the actual death, the length of which is somewhat flexible depending on the nature of the condition the patient suffers from. The guidelines provide for 14 days when the condition is a “non-terminal and slowly progressive condition”.

In some respects the regime established by Yukon doctors is preferable to the bill currently making its way through Parliament.

Voices in the debate over C-14 have criticized the legislation for failing to provide protection for “conscientious objectors” who for personal reasons do not want to participate in assisted dying. What these voices fail to realize is that federal parliament has absolutely no jurisdiction to provide for these protections. Parliament is only able to create “criminal law” and since no one is proposing any “criminal law” imposing sanctions on physicians who refuse to participate in assisted dying the issue of conscientious objection falls well outside what Parliament can legally accomplish.

As I said, medical ethics are a matter of provincial and territorial concern and only those governments – through their independent regulators – can provide such protections. By dealing with the matter at the provincial and territorial level a more comprehensive regime that can deal with these concerns has been created.

The Yukon Medical Council’s guidance addresses this issue by providing, as a general rule, that “Physicians may decline to provide [physician assisted dying] if doing so would violate their freedom of conscience”, but imposing certain obligations in terms of providing information and referrals where necessary.

Another advantage with having C-14 fail is that the YMC’s guidelines do not restrict assisted dying to those for whom “natural death is reasonably foreseeable” a serious shortcoming of the new legislation that I wrote about several weeks ago.

There was further indication last week that imposing such a requirement on people suffering from non-terminal conditions, as C-14 purports to do, will fail a Charter challenge. The Alberta Court of Appeal pre-emptively called into question the premise of the new legislation in a case involving a woman in just such a situation last week. The court stated that “the declaration of invalidity in Carter 2015 does not require that the applicant be terminally ill to qualify for the authorization”.

So despite the dire warnings of the Attorney General, the sky will not fall if legislators fail to act. Parliament can take its time getting the bill right because at the moment it seems determined to flub the issue. And in the meantime, Yukoner’s can rest assured knowing that the necessary safeguards are in place.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

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