In 2016 Bill C-14 was passed by the Parliament of Canada, which amended the Canadian Criminal Code to legalize both medically assisted dying and assisted suicide laws in Canada.  Formally termed “physician-administered euthanasia” (PAE) and “physician-assisted suicide” (PAS), the bill passed to end the suffering of terminally ill adults. The assisted dying law included legal limits to prevent minors, those with mental illness, curable conditions, and long-term disabilities from considering these as options.  The bill also disallows “advance directives”, which would allow a competent patient to request euthanasia under certain circumstances, such as an advanced state of mental decline, as with Alzheimer’s or dementia.

Currently, the system is set up for the qualified individual to provide an “informed consent”, which is a written request in front of two witnesses who can confirm the patient was not coerced into making this decision. The written and witnessed consent must be taken care of a minimum of 10 days before the date of the medically assisted death. The patient must also be of sound mind to be able to repeat this consent all the way up until the moments prior to the life-ending cocktail is administered.

The reason for the final consent is to allow the patient to reverse the decision at the last minute without repercussion. Unfortunately, many severely ill patients who are approved are concerned about the latter requirement of this law should they be in severe and debilitating pain or be on hallucinatory pain medications. Many are also concerned about the possibility of their mental faculties slipping to the point of being unable to make the final consent.

This has brought up a fundamental problem with the dying law. It forces patients to make a choice of dying before they are ready, to ensure they are mentally cognitive or prolonging their suffering in many cases. There are also patients who have dialled back their medication at the end so they can provide willful consent, yet putting themselves back in excruciating pain to do so.

When the legislation was being written, independent advisory committees recommended it include “advance requests” to allow the patient to write instructions and consent even if they are not capable of providing a cognitive affirmation minutes before the lethal injections are given.

BCCLA Fights for Advance Directives

Because there are so many Canadian citizens who are suffering unreasonably, the B.C. Civil Liberties Association (BCCLA) has taken up this cause. The government’s limits on only allowing people who have a “reasonably foreseeable” death and be able to provide a final consent, has caused some Canadian citizens to take their own lives.

In December 2018, the Supreme Court dismissed the B.C. Civil Liberties Association proposal to speed up the lawsuit that challenges the current federal assisted dying law.

BCCLA representative, Josh Paterson said:

“Canadians who are living with debilitating but not imminently life-threatening illnesses were “left out” of the new law, introduced three years ago. Those people, right now, are trapped. Despite having won the constitutional right to an assisted death, they’re unable to access it under the law. They are continuing in their suffering against their will. With great respect to the Supreme Court, we’re disappointed.”

The Supreme Court and Court of Appeal Reevaluate

Now the B.C. Supreme Court and Court of Appeal have determined they would like a second pass at the current legislation, which will hold up any expansion of the current dying laws. This back peddling could add years to the process and could be like starting over.

The BCCLA is currently gathering information and additional evidence in the event a reevaluation takes place. In the meantime, the association is hoping other litigants will join in to combine forces as it would strengthen their case.

What to Do if You’re in this Position

If you have been involved in helping a terminally ill family member create their written consent, yet fear they may not be able to provide the final consent prior to physician-assisted euthanasia, we can help map out a strategy. Lawyers at Sicotte and Sandhu are here to help navigate this extremely sensitive issue and work alongside the BCCLA to push for a legally binding advance directive.  Contact us today to schedule a consultation.