In January we blogged here about the Supreme Court of Canada’s decision to delay assisted dying laws by 4 months so that Parliament could draft legislation. The Court reached a unique compromise whereby it decided to allow people who are suffering to seek a “constitutional exemption” from a judge in their own provinces to be permitted to access physician-assisted dying (“PAD”) prior to the new June 2016 deadline.

The first constitutional exemption was granted in Alberta to a woman with advanced ALS. Applications are being pursued in Ontario as well.

People seeking constitutional exemptions are finding that there are many barriers to overcome before applying to court. These barriers include:

  1. Not being able to find physicians willing to assist. Many health professionals do not want to be involved with PAD.
  2. The requirement to speak with a consulting psychiatrist. In particular, the need for a referral to meet with a psychiatrist is a barrier for those without a treating physician or family doctor.
  3. The requirement that a consulting psychiatrist swear under oath that “the applicant has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering”. This is problematic because psychiatrists are likely not specialists in the medical condition underlying the request.
  4. The requirement to have 2-3 physicians perform assessments and provide affidavits. Most people seeking assisted dying have mobility issues making it difficult to attend multiple doctors’ appointments, particularly if they live in the community.

It was reported that even after obtaining the court order in Alberta, it was difficult for the physician to access the necessary medications.

Of course, what looks like a barrier to one person may be viewed as a safeguard by someone else. Even people who support the right to an assisted death typically agree that proper safeguards are required to protect vulnerable persons from being coerced to request PAD.

On March 1, 2016 the “Vulnerable Persons Standard” was shared by a group of professional advisors across Canada. They recommend that PAD be limited to people with end-of-life conditions, that the causes of a patient’s suffering be explored, and that the request for PAD be “subject to an expedited prior review and authorization by a judge or independent body with expertise in the fields of health care, ethics and law.”

Of particular concern to many is the possibility that PAD will be available to people who are not suffering from a terminal illness and to “mature minors” under 18 years of age. This was contemplated in a February 2016 Report of the Special Joint Committee on Physician-Assisted Dying.

At this time federal legislation is underway.

The introduction of PAD in Canada will become an important part of Canadian history. If you are interested in following the developments related to PAD please sign up for our monthly newsletter here.