Open letter: Provincial superior courts must consider compassion during extension period

In a new open letter, Dying With Dignity Canada condemns the Ontario Superior Court's interim rules for assisted dying and urges the judiciaries in other provinces to take a more patient-centred approach to handling requests for aid in dying in the four-month period before the Supreme Court's decision in Carter v. Canada comes into effect.

To all whom it may concern,

On January 15, 2016, the Supreme Court of Canada granted, in part, a request from the federal government to delay the decriminalization of physician assisted dying. In a unanimous decision, the Court granted a four-month extension to compensate for the time lost to the 2015 federal election.

The Court also decided to provide for exemptions to mitigate harm to people who meet the eligibility criteria of Carter and are seeking an assisted death before June 6, when the extension expires. The decision states a person seeking a physician-assisted death during the interim period may apply to the superior court in their respective province or territory for a personal exemption. The Court went on to state that a judicial process during the extension period will ensure compliance with the rule of law and provide an effective safeguard to protect vulnerable people.

The Supreme Court did not provide further guidance to provincial and territorial courts. To date, only Ontario and Quebec have interim guidelines in place for people who are seeking a personal exemption. Quebec is the only province that has both legislation and medical protocols ready for residents seeking an assisted death. The Ontario Superior Court of Justice released its Practice Advisory for Judicial Authorization of Physician Assisted Death on January 29, 2016.

Ontario Superior Court creates significant barriers to access

Dying With Dignity Canada (DWDC) is concerned that the Ontario Superior Court’s Practice Advisory imposes legal protocols that virtually guarantee that physician assisted dying will be unavailable to Ontarians during the extension period. Though the Advisory states that its direction is subject to the discretion of the presiding judge, the protocols will unfairly burden desperately ill Ontarians looking to exercise their right to a peaceful death.

Problems with the Practice Advisory:

  1. Of special concern is the requirement that the attending physician must sign an affidavit confirming that the patient “is or will be physically incapable of ending his or her life without a physician assisted death.” This requirement is not consistent with the Carter decision and implies that if the person can end their own lives, their request for an assisted death will be denied. This language is unconscionable and utterly unbecoming of a court of law.  
  1. It calls for evidence from a consulting psychiatrist. DWDC believes this blanket requirement is unnecessary. The attending physician should only seek a psychiatric assessment if he or she has concerns about the patient’s competency and capacity to request an assisted death. 
  2. The Court may require that the patient’s family members (such as a spouse, children, etc.) and “any other person who will be affected by the order sought” be notified of the individual’s legal request for assisted dying. This is a gross violation of an individual’s right to privacy. If the physician suspects a person is not discussing the matter with their family, they can encourage the patient to do so, but that is the limit of their authority.

If these rules remain in place, applying for a personal exemption during the interim period will be onerous and could represent an insurmountable barrier for the people who most desperately need assistance to die.

Assisted dying is healthcare

DWDC is deeply concerned about how these obstructive judicial protocols may influence new legislation for physician assisted dying. In an effort to effectively deny Canadians of their Charter right to physician assisted dying, some organizations and individuals have suggested judicial processes should be adopted to deal with requests for physician assisted dying.

In fact, over the past few weeks, Parliament’s Special Joint Committee on Physician Assisted Dying has heard calls from assisted dying opponents who want the judiciary or appointed panels to have the final say over who can receive assistance to die. Their testimony ignores the fact that physician assisted dying is healthcare and, as such, should be treated in the same manner as other end-of-life decisions.

Dying With Dignity Canada urges legislators to reject calls for mandatory judicial review of requests for physician assisted dying. Such a requirement would impose steep barriers on some of the country’s most desperately ill patients, and block many of them from accessing their hard-won right to die in peace and dignity. The Ontario Superior Court’s protocols are not within the spirit of the Carter decision. They are not compassionate. They are not what sick and dying Canadians need.

Lastly, we strongly discourage other provincial and territorial Chiefs of Justice from following in the Ontario Superior Court’s examples. Instead, it is incumbent on our leaders to create interim protocols that treat dying patients with the dignity, respect and mercy they deserve.


Dying With Dignity Canada


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