Since February 6, 2015 when the Supreme Court of Canada decided in Carter v Canada, 2015 SCC 5 to strike down the ban on assisted dying in the Criminal Code, RSC 1985, c C-46 as being unconstitutional, the government was obligated to legislate who would be eligible to obtain medical assistance in dying, what safeguards ought to be followed to ensure that vulnerable individuals would be protected and to create a system that would monitor accountability, transparency and public trust. After much discussion and consultation on the controversial legislation, on June 17, 2016, Bill C-14 received Royal Assent.
Arguably, the legislation strikes the right balance between personal autonomy for those seeking to end their life and protecting the vulnerable. In order to be eligible for medical assistance in dying, an individual must meet all of the following criteria under subsection 241.2(1) of the Criminal Code:
- He or she must be eligible for health services funded by the federal, provincial or territorial government of Canada;
- He or she must be at least 18 years old and capable of making decisions with respect to his or her health;
- He or she has a grievous and irremediable medical condition;
- He or she has made a voluntary request for medical assistance in dying that was not made as a result of external pressure or influence; and
- He or she must give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve his or her suffering, including palliative care.
The law is clear that an individual must be capable of making health care decisions in order to be considered eligible for medical assistance in dying. A physician or nurse practitioner will ask the patient to confirm his or her choice immediately before administering medical assistance in dying. As a result, the decision to end one’s life cannot be delegated to another individual. Therefore, such a decision does not come within the realm of the decision-making authority of an attorney for personal care or a court-appointed guardian of the person.
As there has been extensive coverage in the news over the past year and a half on the topic, clients have wondered whether they are able to include a request in their power of attorney for personal care for medical assistance in dying to be carried out when they are no longer able to make health care decisions and/or express their wishes. Although the new legislation requires further examination of the legal, medical and ethical issues surrounding this situation, estate planners should discuss their clients’ wishes with them and explain that any request of this nature is merely a wish and may not be legally binding. It remains to be seen whether the courts and/or legislation will change the law as it stands today. One thing is for certain: it will take years before we see any change to the current law, as court challenges will be slow to make their way to the Supreme Court of Canada.