A.B. v. Canada (Attorney General): Ontario’s Approach to Physician-Assisted Dying
In A.B. v. Canada (Attorney General), 2016 ONSC 1912 (“A.B. v. Canada”), A.B., an 81-year-old man with advanced-stage aggressive lymphoma, brought an application in the Ontario Superior Court of Justice for the following declarations: (1) that his health situation meets the criteria for the constitutional exemption granted in Carter v. Canada (Attorney General), 2016 SCC 4 (“Carter-2016”) for a physician-assisted death; and, (2) that the attending physician does not need to notify the coroner of the circumstances of his death. The focus of this post is the Court’s approach to physician-assisted death.
In his decision, after explaining the legal basis for this application the Honourable Justice Perell examined the Supreme Court of Canada’s (“SCC”) decisions in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter-2015”) and in Carter-2016, then reviewed the legislation enacted in December 2015 in Quebec in response to Carter-2015 entitled An Act Respecting End-Of-Life Care (CQLR c S-32.0001) and applied the pertinent procedural and evidentiary guidelines set out in the Ontario Practice Advisory-Application for Judicial Authorization of Physician Assisted Death (“Ontario Practice Advisory”) to the facts.
The Issue of Physician-Assisted Death
In Carter-2015, the SCC framed the issues as follows:
“It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.” (para. 1)
In Carter-2015, the Supreme Court of Canada determined that the sections 14 and 24(b) of the Criminal Code, that would prohibit a physician from assisting an individual with their death violate an individual’s right to life, liberty and security of the person contrary to s. 7 of the Canadian Charter of Rights and Freedoms, 1982 (the “Charter”) and struck down those provisions for one year to allow the Federal government to enact new legislation that does not offend the Charter. The Federal government has until June 6, 2016 to enact this new legislation. Until June 6, 2016, it remains a crime in Ontario for a physician to provide or administer medication that intentionally brings about a patient’s death at the request of that patient.
Criteria from Carter-2015
In A.B. v. Canada, Justice Perell extracts then provides an explanation of the five criteria from Carter-2015 that are necessary for a declaration that s. 24(b) and s.14 of the Criminal Code are void insofar as they prohibit physician assisted death: “(1) the person is a competent adult person; (2) the person has a grievous and irremediable medical condition including an illness, disease or disability; (3) the person’s condition is causing him or her to endure intolerable suffering; (4) his or her suffering cannot be alleviated by any treatment available that he or she finds acceptable; and, (5) the person clearly consents to the termination of life.”
(1) Competent Adult
Pursuant to the Health Care Consent Act 1996, S.O. 1996, c.2, Sched. A (“HCCA”), “a patient is presumed to be competent” (para. 24, A.B. v. Canada). In the context of physician assisted death, “the matter of capacity must be proven, not assumed” (para. 24, A.B. v. Canada). Justice Perell relies on the common law definition of capacity in the context of decisions about medical treatment in Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2013 SCC 53 as the “ability to understand the nature, purpose, and consequences of the proposed treatment” (para. 24, A.B. v. Canada).
(2) Grievous and Irremediable Medical Condition
A grievous medical condition “greatly or enormously interferes with the quality of that person’s life and is in the range of critical, life threatening, or terminal”, while a irremediable medical condition is “permanent and irreversible” (para. 25, A.B. v. Canada). This criterion must also be proven.
(3) Intolerable Suffering
There are two elements to this criterion: (1) the individual is suffering from grievous pain; and (2) the primary source of the grievous pain is the individual’s medical condition. Given the subjective and idiosyncratic nature of and individual’s pain, the evidence presented to prove this criterion will likely be a mixture of subjective and objective medical evidence.
(4) Treatment Cannot Alleviate Suffering
“[I]t is the pain and suffering, not the medical condition that cannot be alleviated by any treatment acceptable to the person” (para. 27, A.B. v. Canada). Again, the evidence presented in support of proving this criterion will be both subjective and objective in nature: “[o]bjectively, there may or may not be effective treatments to alleviate and manage the person’s pain but, if there are treatments, they must be subjectively acceptable to the person” (para. 27, A.B. v. Canada).
(5) Consent to Termination of Life
Justice Perell equates the criterion of consent to termination of life with consent to treatment pursuant to section 11(1) of the HCCA. To consent to treatment, an individual’s consent must meet the following criteria: (1) it must relate to the treatment; (2) it must be informed; (3) it must be given voluntarily; and, (4) it must not be obtained through misrepresentation or fraud.
As an aside, it may also be helpful to look at sections 11(2) and 11(3) of the HCCA for guidance on what constitutes informed consent. There are two parts to informed consent. First, did the individual receive information that a reasonable person in the circumstances would require in relation to the following matters before giving their consent: the nature of the treatment; the expected benefits of the treatment; the material risks of the treatment; the material side effects of the treatment; alternative courses of action; and, the likely consequences of not having the treatment. Secondly, did that individual receive responses to his or her requests for additional information about those matters.
The Ontario Practice Advisory
In Carter-2016, the SCC directed applications for an exemption to the Criminal Code prohibition against physician-assisted death to provincial superior courts. In response to this direction, Ontario’s Chief Justice of the Superior Court directed the preparation and publication of a Practice Advisory to provide procedural and evidentiary guidance to counsel and interest parties. Specifically, the Ontario Practice Advisory provides applicants, their attending physicians, consulting physicians, and physicians proposed to assist death with guidance on the evidence that should be included in their affidavits.
In A.B. v. Canada, Justice Perell explains that “[t]he Ontario Practice Advisory offers advice on such issues as notice, confidentiality, and the type, amount and form of evidence, as well as matters of timing and scheduling. The Advisory is legislative, but is not legislation or substantive binding law and rather it is adjectival or adjunctive of the substantive law” (para. 27, A.B. v. Canada).
The Role of the Court
Justice Perell also examined the responsibility that Carter-2016 placed on superior courts across Canada, to “ensure compliance with the rule of law” in a special way that is not routine for the following five reasons: (1) an application for physician-assisted death is more investigatory than adversarial in nature; (2) the Court’s parens patriae jurisdiction that protects vulnerable individuals is not engaged (presumably because the applicant must be capable of making medical decisions); (3) the Court has no discretion when the applicant satisfies all the criteria; (4) the Court is not dispensing justice; (5) by investigating and determining whether the applicant has satisfied the criteria for a physician-assisted death, the Court provides an effective safeguard against potential risks to vulnerable people (para. 34, A.B. v. Canada).
Justice Perell’s Decision
Upon reviewing the evidence, Justice Perell concluded that A.B. satisfied the Carter-2015 criteria for a physician-assisted death for the following reasons: (1) he is a competent adult; (2) he has a grievous and irremediable medical condition; (3) his medical condition is causing him “enduring intolerable suffering”; (4) the treatment available to him that he finds acceptable cannot alleviate his suffering; and, (5) he consents to the termination of his life (para. 49, A.B. v. Canada).
Additionally, Justice Perell was satisfied on the evidence that: (1) A.B. is an Ontario resident; (2) he commenced his application after being fully informed of his medical condition, diagnosis, prognosis, treatment options and palliative care options; (3) he understands that his request for a physician-assisted death can be revoked at any time; (4) he understands that once the court grants him authorization for physician-assisted death that using that authorization remains entirely his decision to make; and, (5) “he consents without coercion, undue influence, or ambivalence to a physician-assisted death” (para. 50, A.B. v. Canada).
Before declaring that A.B. satisfied the criteria for the Carter-2015 constitutional exemption, Justice Perell also satisfied himself that: A.B.’s physicians were willing to assist A.B. in dying; his physicians were satisfied that their assistance would be consistent with A.B.’s wishes; and, his physicians understood that it was entirely A.B.’s decision to use or not use the Court’s authorization (para. 50, A.B. v. Canada).
A.B. v. Canada offers guidance to judges and interested parties and sets a strong precedent for applications made before June 6, 2016 for an exemption to the Criminal Code prohibition against physician-assisted death in Ontario. Given the timing of this decision, it will be interesting to see how it will influence those drafting the Federal physician-assisted dying legislation.