Physician-assisted dying is now legal in Canada in cases where patients have a "grievous and irremediable" illness. But because the government has yet to pass federal legislation regulating the practice, the nation's doctors are in limbo.
The Supreme Court of Canada struck down a ban on medical assistance in dying in February 2015 -- a ruling sometimes known as the "Carter decision." It also gave the government 12 months to pass legislation -- as well as another extension earlier this year -- outlining the conditions under which doctors can end a patient's life. On Monday, that deadline passed without a federal law in place.
Canadian physicians now find themselves in a delicate and confusing situation. They are free to interpret what "grievous and irremediable" means, and are subject to the regulatory guidelines that their province has in place. Some doctors, however, fear that with no federal law in place on medical assistance in dying they could be held liable if criminal cases are brought against them.
“There’s a lot of concern about the uncertainty that has arisen because the bill hasn’t gone through,” Dr. Cindy Forbes, president of the Canadian Medical Association, told The WorldPost.
“As it stands right now, we have the Carter decision and the provincial regulations. But the regulations are just that: regulations. They don’t provide legal protection.”
Doctors that Forbes has spoken with are reluctant to provide medical assistance in dying without knowing the exact legal status of the practice. Vague aspects of the Carter ruling mean uncertainty for physicians over a number of issues, including how old a patient must be before doctors can assist them in dying. In the province of New Brunswick, for instance, age of consent may be as low as 16 years old. Furthermore, some medical professionals are excluded from legal protection under the decision.
“The Carter decision provides security for physicians who are involved in this activity, but it doesn’t provide safeguards for pharmacists or nurses or others, and that’s a big challenge,” Dr. Kevin Imrie, president of the Royal College of Physicians and Surgeons of Canada, told The WorldPost.
“As a medical community we want to ensure that those individuals aren’t placed in jeopardy.”
Another quirk of the current situation, according to Forbes, is that there is no clear legislation stopping foreign citizens from traveling to Canada to seek out physician-assisted death.
Prime Minister Justin Trudeau's Liberal Party is attempting to push through a law that would put assisted dying under federal regulation, and address many of the inconsistencies in the current regulations. Bill C-14 has already passed Canada's Parliament, but is currently under review in the Senate and is under fire from two sides -- one that says it is too restrictive and the other that says it's not restrictive enough. Prominent legal expert Peter Hogg said this week that the bill’s requirement that a patient be near death excludes too many people who are suffering compared with the provisions of the Carter decision, and is therefore unconstitutional.
The proposed government bill requires suffering patients to be no younger than 18 years old and mentally competent. It also says a patient's death should be "reasonably foreseeable." There would also be witnesses and doctors to independently review the cases before doctors could either administer medication or prescribe drugs to take at home. The law would only cover Canadian residents and citizens, as well as take into consideration physicians who don't want to engage in the practice.
The Canadian Medical Association is supporting the bill, while acknowledging that medical assistance in dying is a hard thing to legislate and may need to evolve its regulations over time. In the meantime, the CMA is working to prepare a generation of active physicians who have never dealt with physician-assisted death. The organization plans to set up training programs to educate physicians on best practices.
“This is a brand new procedure," Forbes said, "and a brand new conversation we’re going to be having with patients.”