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PHYSICIAN ASSISTED DEATH (CANADA/ALBERTA) – PERSONAL DIRECTIVES

In-law Suites: What Are They and What You Need to Know

The Criminal Code in Canada has long had a prohibition against physician assisted death. In 1993, the Supreme Court of Canada (SCC) rejected the argument that the prohibition violated the right to life under s. 7 of the Charter in Rodriguez v. British Columbia (Attorney General).

On February 6, 2015, the SCC declared that the prohibition did violate the Charter in Carter v. Canada (Attorney General), in the following circumstances:

When a competent adult person,
1) Clearly consents to the termination of life; and
2) Has a grievous and irremediable condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The SCC invited Parliament and the Provinces to respond by enacting legislation. The declaration of invalidity was suspended for 12 months, and extended for another 4 months on January 15, 2016. Parliament began debate on the proposed Bill C-14 on April 22, 2016, and the debate will continue for two days starting on May 2, 2016.

Of interest to this blog is the question of whether the law will prohibit a person from planning for physician assisted death in a Personal Directive?

Some have interpreted the Carter decision to mean that a person’s capacity is required both at the time of the request and at the time of the service. I believe Alberta Health is also taking a conservative view of the Carter decision and that personal directives will not be relied on. Bill C-14 would also seem to bar the use of Personal Directives in that the patient will be unable to provide informed consent at the time of death.

Critics of this approach argue that the bar on Personal Directives will force some patients with progressive conditions to try to end their lives prematurely while they are still competent. These persons may not meet the other requirements at the same time they are mentally competent.

We will await the final form of Bill C-14, and further review of same by the SCC.

Please contact us if you have any questions about the foregoing.