Since the Supreme Court of Canada decision in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”),  many of our clients are interested in discussing the impact of that decision on their future health care planning.  Many of our clients want to know whether they could receive physician-assisted death when they are incapable, or whether they could provide future consent to physician-assisted death in their incapacity estate planning documents.  In short, the answer is no – not at this time.  This article is meant to provide a summary of the Carter case, the legislation that came out as a result of this case, who is eligible for physician-assisted death and what some clients are now requesting in their estate planning.

But first, a quick recap of the two main documents of incapacity planning: (1) power of attorneys, which are important for financial and legal decision making; and (2) representation agreements, which are for personal and healthcare related decisions. Representation agreements provide a mechanism whereby adults may arrange in advance how, when and by whom, decisions about their health care or personal care, the routine management of their financial affairs, or other matters will be made if they become incapable of making decisions independently. If future consent for physician-assisted death is permitted, we would use a representation agreement as the tool to do this.

Until the landmark Supreme Court of Canada decision in Carter, it has historically been a criminal offence to assist another person in ending his or her own life.  This included the inability of a person to seek physician-assisted death when they suffer 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 their condition.  In Carter, the main issue was whether the prohibition on physician-assisted dying found in the Criminal Code violated the claimants’ rights under sections 7 and 15 of the Charter of Rights and Freedoms (namely, the right to life, liberty and security of person and the right to equal treatment without discrimination).  In a unanimous decision on February 6, 2015, the Supreme Court of Canada struck down the provision in the Criminal Code, giving Canadian adults who are mentally competent and suffering intolerably and enduringly, the right to a physician’s help in dying.

The Court stated: “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.”

Medical assistance in dying became legal across Canada on June 17, 2016 after the Canadian federal government passed Bill C-14, which allowed Canadians with terminal illnesses where natural death was “reasonably foreseeable” to choose to die with a physician’s help.

Upon reading Bill C-14 it appears that the Supreme Court of Canada’s ruling did not fully translate into the Bill C-14 legislation.  Dying with Dignity.ca, a very resourceful website for many with questions on this issue states: “Bill C-14 is much more restrictive than the Carter decision. The Carter decision made assisted dying available to any consenting, competent adult suffering intolerably from a grievous and irremediable medical condition. However, the new law includes two provisions that are much narrower in scope. To qualify for assisted dying under Bill C-14, an individual must be in an advanced state of irreversible decline and their natural death must be “reasonably foreseeable.” The vague language of the eligibility criteria — specifically this “reasonably foreseeable” clause — makes the new law ambiguous at its best and unconstitutional at its worst.”

Notwithstanding the comments from Dying with Dignity’s website, Bill C-14 is the existing legislation until struck down by the courts or until modified by the federal government.

Pursuant to Bill C-14, in order to qualify for physician-assisted death, an individual must be 18 years or older and meet the following four eligibility criteria:

1. Have a serious and incurable illness, disease, or disability;
2. Be in an advanced state of irreversible decline in capability;
3. Endure physical and psychological suffering that is intolerable to them; and
4. Their natural death has become reasonably foreseeable

Patients must also be capable of providing informed consent at the time that physician assisted death is provided.

Could a person with dementia qualify for physician assisted death?

Many of our clients are concerned of what happens to them should they be diagnosed with dementia.

The Supreme Court of Canada in Carter, clearly stated that consent would be necessary at the time of the death and it did not permit prior consent.  That is not to say the Canadian government could not legislate to allow for prior consent.  However, at this time the law does not allow for it and therefor advance requests for dying are not permitted. This means Canadians with diagnoses of competence-eroding conditions like Alzheimer’s and Huntington’s disease will not be granted the right to consent while they are still of sound mind to an assisted death that would be carried out at a later time.

Without advance consent, these individuals will most certainly be found ineligible for physician-assisted death because they will likely lose competence before they reach the required “advanced state of irreversible decline” outlined in the eligibility criteria.

There is discussion that this portion of Bill C-14 will be re-reviewed, however, there is no guarantee that advance consent will ever be formally introduced into law. That means individuals with conditions like dementia may never qualify for physician-assisted death.

However, in hopes that prior consent for physician assisted death will be legislated, many of our clients are interested in including language in their representation agreement such as the following:

“If [client name] has a grievous and irremediable medical condition (including an illness, disease or disability) that either [client name] or the Representative decides is causing enduring suffering that is intolerable to [client name] in the circumstances of [his/her] condition, the Representative may give or refuse consent on [client name]’s behalf to a physician-assisted termination of [client name]’s life.  For clarity, [client name], believes that an illness, disease or disability that causes advanced dementia is a grievous and irremediable medical condition.”

Again, under the current law this sort of provision is not effective. There is no guarantee that if the law does change that this clause would be effective (it will depend on what that future legislation could look like).  However, some clients are interested in including it the event that the laws do change to allow for physician-assisted death, and in case at that time those clients no longer have the capacity to do a new representation agreement.

If you need further advice on incapacity planning or other estate planning matters, contact our wills and estates team at Touchstone Law Group LLP – we are here to simplify the complicated!

Author: Jennette Vopicka

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning and estate administration at the following: