All About Estates

How Will Capacity to Consent to Physician Assisted Death Align with Ontario Policy on End-of–Life Decision-Making?

Canadians are well aware that in Carter v. Canada[i] the Supreme Court struck down the provision of the criminal code against physician assisted death (PAD). In its decision, the Supreme Court set out the circumstances in which PAD is appropriate:

(1) The person affected clearly consents to the termination of life; and

(2) The person 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 original supporters of PAD were typically advocates for terminally ill patients wishing to choose a so-called ‘rational suicide’ who were distinguished from those with mental illness for whom suicidal ideation was assumed to be irrational.[ii] However, in Carter v. Canada, the Supreme Court has not imposed a requirement that the medical condition be terminal such that mental illness may be a legitimate basis for requesting PAD.

In upholding the trial judge’s decision, the Supreme Court summarized the trial judge’s findings about performing a capacity evaluation of the person wishing to consent to PAD:

[106]      The trial judge found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process (paras. 795-98, 815, 837, and 843). In reaching this conclusion, she particularly relied on the evidence on the application of the informed consent standard in other medical decision-making in Canada, including end-of-life decision-making (para. 1368). She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity (para. 831).

The application of the informed consent standard for end-of-life decision-making in Ontario has recently been updated in a newly revised policy from the College of Physicians and Surgeons of Ontario (CPSO).[iii] The policy requires consent for physicians to withhold cardiopulmonary resuscitation (CPR). In essence, the physician is obliged to inform the patient (or their substitute decision maker (SDM), if incapable) that CPR is considered by the CPSO as the standard in end-of-life care and consent is required to withhold CPR regardless of the clinical situation, and regardless of whether the physician believes CPR should be proposed for that individual.[iv] This policy was approved notwithstanding the fact it was not a requirement under the Health Care Consent Act[v] (HCCA) (which only requires consent to be given for proposed treatments); or pursuant to Cuthbertson v. Rasouli[vi] (which established the requirement that consent be given for withdrawing treatment). Nowhere in the legislation or common law is consent required for physicians to withhold hypothetical treatments they do not wish to offer.

If we are to align CPSO policy with Carter v. Canada, then the informed consent standard in Ontario for end-of-life decision-making could hypothetically oblige physicians to inform patients of the availability of PAD as a standard of care even if the physician does not wish to offer or propose PAD.

Carter v. Canada assumes that physicians can reliably assess capacity to consent of patients requesting PAD and reasonably detect coercion, undue influence, or ambivalence. There is no mention of hidden motivations such as fear of being a burden, fear of financial impact of illness and a wish to expedite financial gain of beneficiaries; nor is there mention of unrecognized mental health disorder, the most common cause of suicide.[vii] Furthermore, I suggest that by presenting PAD as a standard of care option, physicians may unwittingly bias patients towards feeling pressured to agree to PAD or to perceive a sense of entitlement to PAD.

In order to address these possible deficiencies, I propose that pending policy guidelines and legislation regarding end-of-life care and evaluation criteria of capacity to consent to PAD should include the following:

(1)  PAD must not be regarded as a standard of care.

(2)  PAD must not be considered an option that physicians are obliged to inform patients about.

(3)  PAD should be considered an exceptional intervention that must be initiated by and orchestrated independently by a patient, and not by any third party, regardless of their relationship to the patient, be it familial or fiduciary.

(4)  Capacity to consent to PAD must include evaluation not only of the presence of coercion, undue influence, and ambivalence, but also for hidden motivations amenable to intervention and for the presence of unrecognized mental health disorder, all of which would need to be documented in the patient’s medical record.

(5)  Patients wishing to pursue PAD should be advised of the full range of alternatives, including a physician’s order to “allow natural death” (AND)[viii] rather than relying only on a “do not resuscitate” (DNR) order at the end-of-life. AND orders are less commonly understood, but are a reasonable alternative to PAD. An AND order means the patient consents to the withdrawal and withholding of life sustaining therapies which may provide little benefit other than prolonging the dying process.


[i] Carter v. Canada (attorney general), 2015 SCC 5, [2015] 1 S.C.R. 331


[ii] Humphry, D. (2002). Final exit: the practicalities of self-deliverance and assisted suicide for the dying. Random House LLC


[iii] Planning for and Providing Quality End-of-Life Care. Toronto: The College of Physician and Surgeons of Ontario; 2015 [updated]. Available: (accessed March 9, 2016).


[iv] Downar, J., Warner, M., & Sibbald, R. (2016). Mandate to obtain consent for withholding nonbeneficial cardiopulmonary resuscitation is misguided. CMAJ: Canadian Medical Association journal= journal de l’Association medicale canadienne.


[v] Health Care Consent Act, 1996, SO 1996, c 2, Sch A, retrieved on 2015-07-16


[vi] Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R


[vii] Sentinel Event Alert 56: Detecting and treating suicide ideation in all settings. (Accessed March 17, 2016).


[viii] Venneman, S. S., Narnor-Harris, P., Perish, M., & Hamilton, M. (2008). “Allow natural death” versus “do not resuscitate”: three words that can change a life. Journal of Medical Ethics, 34(1), 2-6.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: