When is natural death reasonably foreseeable?

After much suspense and speculation, the federal government introduced bill C-14, on medical assistance in dying, on April 14, 2016. The bill allows people of at least 18 years of age with capacity and eligibility for government-funded health services in Canada to make a voluntary request for, and give informed consent to, medical assistance in dying if they have a grievous and irremediable medical condition.

Many aspects of the bill were expected and the procedural provisions are not too different from those proposed by the provincial regulators. There is, however, real concern that the proposed legislation is more restrictive than Carter v. Canada (Attorney General), contemplated in some respects and too liberal in other respects.

There are provisions that seem ambiguous or are left dangling without appropriate safeguards. These will require further consideration, possibly before the courts, a costly option that may not be available to some.

The clearest example of ambiguity relates to the eligibility criteria, in particular the fourth requirement of the grievous and irremediable medical condition test. Section 241.2(2)(d) requires that the person’s “natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”

To further complicate the issue, the bill also adopts the requirement used in the Quebec legislation of “an advanced state of irreversible decline in capability,” which has been widely interpreted to mean terminal illness. This begs the question: When is the natural death of a terminal patient “reasonably foreseeable”?

In four out of the six reported physician-assisted death authorizations granted by Canadian courts, the patients had life expectancies of only months. In one, the judgment was too vague to discern anything about the nature of the patient’s condition. In AA (Re), the petitioner suffered from multiple sclerosis that greatly interfered with the quality of her life, was at a critical stage, and was permanent and irreversible.

AA is interesting in the context of the discussion of s. 241.2(2). There was no discussion of life expectancy in the judgment. However, perhaps foretelling this subsection, Chief Justice Christopher Hinkson queried whether the petitioner’s condition was “intolerable” as the petitioner requested access to medically assisted dying until June. The decision only allows her access until May, which seems to contemplate a timeline requirement possibly like what the “reasonably foreseeable” criterion contemplates.

On the face of it, the bill does not require a prognosis, let alone one of only months. So, while the four patients who had only months to live would presumably satisfy the “reasonably foreseeable” criterion, this surely cannot be what is contemplated.

If “reasonably foreseeable” is to be defined by only weeks or months, it is questionable whether the petitioner in AA, or even Lee Carter’s mother who suffered from spinal stenosis, would qualify.

In AB v Canada (Attorney General), Justice Paul Perell stated that the condition should be “in the range of critical, life-threatening, or terminal.” This was, of course, before the bill was released, but it may be the best guidance we have on the issue of reasonable foreseeability at this juncture.

Ultimately, the meaning of these eligibility criteria is unclear. With the potentially serious criminal sanctions for violations of the provisions of the bill, we expect counsel will be very cautious in their advice to clients.

Above, we suggested there are provisions without appropriate safeguards. The definition of “medical assistance in dying” includes assisted suicide. It is worthy to note at this juncture that the Quebec legislation does not provide for assisted suicide, perhaps because the Quebec legislature recognized the inherent dangers with unsupervised assisted suicide, which involves the prescription of medication that the person takes on his or her own.

What will happen if the prescribed medication fails and the person is alone? What will happen with the prescribed lethal medication if the person does not end up using it? What is to stop it being sold or traded?

As well, if the concept of consent requires consent at the time of the assisted death, how can we be sure that voluntary consent remains intact in the circumstances of a self-administered substance?

Lastly, we raise the question of whether the exemptions from criminal liability go far enough, in the face of the recent suspension of a nurse by the Vancouver Island Health Authority. The nurse was reportedly suspended with pay for aiding and abetting a suicide after she looked up information for a terminally ill patient because the palliative care physician refused to provide that information.

The bill provides exemptions to all the people necessary to aid the medical or nurse practitioner with a medically assisted death. It does not deal with criminal liability prior to the patient raising the issue with a medical or nurse practitioner. What does this mean for a nurse, other health-care professional, or even a social worker who is asked for information?

While we raise the above as potential criticisms of the new bill, perhaps it was naïve to think that we could come up with a coherent broad access approach in just 18 months, much of which was consumed by the federal election. Remember that Quebec undertook a six-year process to get to its current legislation, which is also very narrow and has left some unsatisfied.

The public debate leading up to this bill showed a lack of consensus in the Canadian public beyond the four corners of the Carter decision. Even within the confines of Carter, “consensus” is an optimistic descriptor of public sentiment. With such divides in public views, there is no way to legislate for broad access while truly reflecting the views of the Canadian public at this time.

The federal government has just over a month to pass legislation before the declaration of invalidity becomes unsuspended. Hopefully, there will be productive debate that will clarify the ambiguous terms and fill the residual gaps in the bill.

Kimberly Jakeman is a partner with Harper Grey LLP in Vancouver and the assistant chairwoman of its health law practice group. Dionne Liu is an articling student with the firm.