University of Ottawa professor Bernard Pelletier

Restricting physician-assisted death to adults may not pass court challenge, says expert

  • January 29, 2016

OTTAWA - Physician-assisted death legislation could include competent children under the age of 18, a legal expert told a Parliamentary committee Jan. 26.

University of Ottawa professor Bernard Pelletier, who served on the three-person External Panel on Options for a Legislative Response to Carter v. Canada, said Parliament could broaden the criteria beyond the Carter decision which permits physician-assisted death for competent adults.

The panel’s legal expert told the Parliamentary committee on physician-assisted dying that restricting access only to competent adults would be vulnerable to a legal challenge.

Pelletier’s advice disagreed with that given the previous day by Peter Hogg, a leading constitutional expert who had argued on behalf of the federal government before the court in Carter. Hogg had said the legislation should stay close to the justice’s criteria and not restrict it to only terminal patients for example or expand it to include minors.

Pelletier said Carter was decided on the basis the Charter’s sec. 7 provision on life, security and liberty of the person, but future litigation could argue on the Charter’s sec. 15 equality provision to include competent children under 18.

Also appearing Jan. 26 were the two co-chairs of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Jennifer Gibson and Maureen Taylor. That group recommended competency, not age, should be the criteria so that children as young as 12 should qualify for a physician-assisted death if they are competent. Gibson pointed out it is already the practice in parts of Canada to let competent adolescents make end-of-life decisions.

Age limits were one of the challenges the federal external panel encountered in its travel to the countries in Europe and American states where euthanasia and/or assisted suicide is practised. Pelletier said they found “a general satisfaction with the law in the countries we visited.”

“We were told that assisted dying works well in the context of a robust social safety net, well-founded health care services and high levels of trust in physicians,” he said. “At the same time there is intense controversy about cases that push the boundaries, test the limits of the law, cases that challenged the age requirement, cases involving advanced directives, cases that arise from psychological existential or psychiatric suffering, or suffering related to chronic conditions that are not life threatening.”

The joint-Parliamentary Committee on Physician-Assisted Dying is grappling with all these issues as it hears witnesses in preparation for advising Parliament with a report at the end of February.

Pelletier said the Carter decision applies to both physical and psychological illness and is not restricted to end of life. He said the Quebec law that allows assisted suicide “could be a very good model across Canada,” but it doesn’t go as far as the court did in Carter because it restricts “medical aid in dying” to terminal patients. He said he would prefer the federal government did not intervene in the Quebec law.

Both the federal and the provincial-territorial panel witnesses confirmed the wish of Canadians for access to physician-assisted death across Canada. The provincial panelists said there was a wish to avoid a patchwork approach across Canada. They also said there was a desire for clarity from the federal government so health practitioners would know what they could and could not do under the Criminal Code.

“One of the key messages we heard consistently was we want to know that when we're talking about ‘grievous and irremediable,’ ‘we want to know that we as clinicians are operating without incurring liability in what we do.’ ”

But while clinicians wanted to operate within the rules, they did not want them too “narrowly stipulated,” she said.

Gibson and Taylor also said physician-assisted death should be enlarged to include other health care practitioners, such as nurse practitioners, especially when it comes to serving remote areas.

“We very strongly think that the Supreme Court decision, although it mentioned physician-assisted death, did not mean to exclude other health-care professionals,” said Taylor. “Anyone who understands how health care is delivered in this country knows that it is delivered not solely by physicians.”

Senator Nancy Ruth asked about advanced directives for patients who develop dementia to have a physician-assisted death. Pelletier said their survey of Canadians showed 62 per cent of Canadians either strongly agreed or agreed with them.

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