Physician-assisted death in Ontario comes with a legal caveat

After Monday, June 6, 2016, doctors can no longer be prosecuted for helping a Canadian who is suffering from a "grievous and irremediable" illness to die.

The deadline for legislation has passed, but rules around controversial practice still unclear

(University of Calgary)

After Monday, June 6, 2016, doctors can no longer be prosecuted for helping a Canadian who is suffering from a "grievous and irremediable" illness to die.

The deadline came from the Supreme Court of Canada, which told the federal government it had to enact a law on physician-assisted death by that date.

However, with the Liberal government's medical assistance in dying legislation still in the Senate, physician-assisted death remains undefined, stalled in what some are calling "legal limbo." 

Stuck in the Senate but legal

Ontario Premier Kathleen Wynne says critically ill people in the province can seek a doctor's help to end their life
even before the federal government comes up with new legislation on assisted dying.

Wynne says the province worked with the Ontario College of Physicians and Surgeons so protocols would be in place, and will wait for the federal legislation to see if those protocols need to be updated.

She says people will still need to go through their family doctor, but will not have to go to court "to get medically assisted death service."

Health Minister Eric Hoskins says Ontario will also ensure that drugs for medically-assisted dying will be available at no cost.

Hoskins also urged the federal government to pass legislation on assisted dying as quickly as possible so a national framework could be established on the practice.

Mandatory referral

Just as the law is still a little fuzzy, the issue of physician-assisted dying is not clear in a lot of doctors' minds.

Some doctors have already pledged not to help patients who are suffering intolerably from a serious medical condition die. Others have raised the issue that it is not acceptable in their religion to do so.

So the Ontario government is setting up a referral service so physicians unwilling or unable to provide medically assisted dying can connect patients with those who are willing.

The doctors who choose not to be involved in medical assistance in dying must refer qualified patients to another doctor who will perform the practice.

According to the provincial government, that can take place in:

  • a hospital
  • a long-term care home
  • a hospice or palliative care facility
  • the patient's home

Drugs and guidelines

There are two main requirements for physician-assisted dying, according to Ontario's health regulatory colleges for physicians, nurses and pharmacists.

They say doctors in Ontario are allowed to provide assistance in dying to a competent adult who:

  • clearly consents to the termination of life
  • has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The college will is also offering guidance on these requirements for health care providers with patients. 

But just in case, see the courts

While the Ontario government appears supportive of physician-assisted death, there's a caveat. The government is couching its legislation by encouraging patients to seek legal approval.

"We encourage patients and health care providers to seek further clarity and certainty about how the Supreme Court's decision applies to their particular circumstances by bringing an application to the Ontario Superior Court of Justice," read a statement from the province.

Madeleine Meilleur, Ontario's attorney general, clarified that the courts should be used for deciding who can access physician-assisted death. So the government is recommending patients considering physician-assisted death to consult health care professionals, and then together consult the courts.

Health professionals have been advised that they may have to show the court the capacity of the individual fulfills the criteria of the Supreme Court, said Meilleur. She said she could not answer how long the court rulings would take.

Doctors and patients going to the courts would have to pay legal fees themselves.

The recommendation that the courts still be involved, along with the federal bill still in the Senate, has created unneeded complication and confusion, some critics say.

"I think it's very unfortunate they are going to impose this sort of legal limbo and expense and time for people who are suffering," said Dr. Stefanie Green, a Victoria, BC, physician hoping to add medical aid in dying to her practice told CBC's The Current. "I think this is unnecessary, I think this unfortunate, and I think this comes from a place of fear."

Fear or not, some physician-assisted death advocates argue that there is no legal limbo, and that it is outright legal. Dying With Dignity said there is no "legal void" because the Supreme Court's decision is clear and provincial medical regulators have already done the legwork to make sure the new rules are not abused.

With files from The Canadian Press, CBC's The Current