Only Ontario, Quebec have interim guidelines ready for those seeking assisted death

In its historic ruling one year ago, the Supreme Court of Canada unanimously voted to lift the ban on physician-assisted death, giving the federal government one year to draft legislation.

But the long federal election campaign helped ensure that did not happen, and so last month the Supreme Court of Canada granted the federal government a four-month extension to put new legislation in place.

In the process, the court also instituted interim guidelines — which take effect today — for people to seek out an assisted death in their province before June 6, when the federal legislation is due.

Many provinces, however, have yet to reveal how those guidelines are to be applied.

• Supreme Court gives federal government 4-month extension to pass assisted dying law
• Supreme Court says yes to doctor-assisted suicide in specific cases
• Quebec patient receives doctor-assisted death in Canadian legal first

Under the Supreme Court of Canada ruling, physician-assisted death is still considered illegal in this interim period. But those who want to avail themselves of that option can apply to the Superior Court of their home province for an exception, if they meet the criteria set out during the original Carter v. Canada ruling on Feb. 6, 2015. 

That criteria stipulated that a person who seeks an assisted-death must be a "competent adult … who clearly consents to the termination of life" and who "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."

Guidelines not in place in most provinces

At this point, though, it is not clear what applicants will need to do to apply, as guidelines have not been published in most provinces.

"It's not really clear, from a legal perspective, what those protocols are going to look like," says Shanaaz Gokool, chief operating officer of Dying with Dignity Canada. 

Quebec is an exception as it is the only province to set out its own law allowing physician-assisted death.

For the rest of the provinces, only Ontario has published an advisory on what applicants will have to do when applying for a legal exception for a physician-assisted death during the next four months. 

Under the Ontario rules, applicants will have to provide information confirming an awareness of their respective conditions and the options available to them. Affidavits are also required from an attending physician, a physician proposed to assist in the death and a psychiatrist.

But Gookool said her organization takes issue with those guidelines, particularly with the requirement to have to consult a psychiatrist.

These rules, she says, are "onerous, and they essential made what should be a health process a judicial and, I should say, a criminal process." 

Josh Paterson, executive director of the B.C. Civil Liberties Association, also said his organization opposes the idea of an affidavit from a psychiatrist. 

"It's just unnecessary," he said. "There's nothing wrong with having a psychiatric evaluation if the attending physician thinks it is necessary or helpful to be able to judge whether or not the patient is competent. But you don't require it as a blanket requirement for people [where] there's no suggestion whatsoever of any psychiatric issue."

Roslyn Levine, executive legal officer for the Superior Court of Justice in Ontario, said in an email that the guidelines were made with the original ruling of Carter v. Canada in mind, and that individual judges will apply the advisory in a way they feel appropriate in each case.

Paterson said the court process will be a challenge for those seeking assisted death.

"To make an application in court is already an onerous process," he said. "So, for us, this process of having to go to a court in the interim is not ideal.

"It certainly does pose a barrier to accessing a medical service. But, in the period of time in which it remains criminal, until June, we understand that it's a reasonable compromise in this limited interim period while the practice remains criminal."

He further noted that in absence of legislation or specific guidelines, provincial courts will likely have to treat things on a case-by-case basis.

Doctors weighing in

With no law yet in place, health-care organizations and doctors colleges across the country have been preparing their own guidelines for health-care providers on how to handle requests for assisted dying.

British Colombia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia and Quebec all have health organization guidelines of some sort. 

Newfoundland and Labrador's College of Physician and Surgeons expects to finalize its own guidelines in March, while Yukon's health authorities are also creating guidelines and the Northwest Territories is holding public consultations on the matter.

Paterson said the health-care framework is well in place already to handle requests for physician-assisted death, as doctors deal with these difficult end-of-life care decisions regularly.

"We're not flying blindingly into some kind of vacuum," he said. "Doctors work with patients making these kind of end-of-life decisions all the time."

Provinces have also consulting on the legal and legislative side of physician-assisted death.

A report was released in November by the Provincial-Territorial Advisory Group on Physician Assisted Dying, which offers a number of recommendations being considered by the provinces. 

Assisted dying was also discussed at the health ministers' meeting in January, though no decisions were made while the federal government takes on the job of crafting legislation.

But for this interim period, before federal legislation is implemented, Paterson said he hopes courts will not make things difficult for those who want a physician-assisted death.

"Our hope is that the courts won't needlessly complicate this when we think the guidance that's needed is actually there in the Supreme Court's judgement."