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Lawyers face uncharted waters with assisted death applications

Counsel could be confronted with requests in next four months
By Cristin Schmitz
February 05 2016 issue

Montreal lawyer Jean-Pierre Menard says Canadians now have a choice regarding ‘the time and the manner to die’ and he is confident lawyers ‘will be willing’ to guide people on ‘this basic new constitutional right.’ [Christinne Muschi for The Lawyers Weekly]

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Lawyers and judges facing people seeking personal constitutional exemptions for physician-assisted death are entering uncharted, and possibly choppy waters, which could include court interventions by family members or interest groups opposed to such a remedy, counsel say.

The Supreme Court ruled 9-0 in Carter v. Canada (Attorney General) [2016] SCC 4 on Jan. 15 that people who meet the criteria the court set out in its landmark Carter ruling last year may apply to a superior court to be personally exempted from the Criminal Code’s blanket prohibition of assisted suicide — a ban the court ruled unconstitutional but left in force until June 6 to give Parliament time to draft a substitute law.

For at least the next four months, therefore, some lawyers and judges across Canada could find themselves confronted with requests for the novel individual constitutional remedy about which the top court said little.

It did stipulate that physician-assisted death may be sought in court by competent adults who clearly consent to the termination of their lives and have “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.”

Among the questions for jurists in the trenches dealing with Carter applications: when should (or shouldn’t) a lawyer take on such a case; is a lawyer bound ethically or otherwise to take on — or refer — such a brief, contrary to his or her conscience; should lawyers seek anonymity for clients and should courts grant anonymity orders; what evidence will be required to support applications for a personal exemption; can family members or interest groups intervene to oppose a Carter application; what are the negligence or other pitfalls for lawyers, and how can they avoid them?

Also a question mark: what is the role of the attorney general of Canada if named as respondent?

Justice Minister and Attorney General Jody Wilson-Raybould told The Lawyers Weekly matters relating to individual exemptions are under discussion within the government.

“We’re currently examining the implications of what that [decision] means, the realities of what would happen,” Wilson-Raybould said.

The new justice minister said she had not received notice of any individual Carter applications in the 11 days since Carter was handed down.

“We’ll look at it when and if that happens, and we’ll take action at that time,” she noted.

“But we haven’t made any determinations. This is something that has been given to the superior courts in the provinces to decide, but it actually underscores the need for us to work very quickly — and we are — to ensure that we’re working with our provincial and territorial counterparts” on a new law.

Health law lawyer Jean-Pierre Ménard of Montreal’s Ménard Martin, an architect of Quebec’s Bill 52 — the recently proclaimed (and only) provincial legislation to provide a regime enabling physician-assisted death — said it is possible a person could make a Carter application even in Quebec. That’s because the provincial law is arguably more restrictive than the Supreme Court’s ruling.

Under Quebec’s End-of Life-Care Act, “medical assistance to die should be provided only when…the end [of life] is in sight,” explained Menard, who chaired the Expert Jurists Committee that advised the Quebec National Assembly on its approach.

Ménard confirmed his firm was consulted several weeks ago by the first Quebecker to obtain medical assistance to die under the new law.

“Canadians have gained a new constitutional right to decide — not to die — but the time and the manner to die,” he said. “So the lawyer’s role should be to try to implement this new right.”

He suggested health law and criminal law lawyers are probably best suited to bring Carter applications. The court procedure and evidence required remains to be worked out. Lawyers also need training, and to develop special expertise, he said.

“Probably the most difficult case will be the first one, but once we have a judgment…it could be a pattern for the others. So I am very confident.

“Canadian lawyers are very much devoted to their clients’ interests and I’m very, very confident that the lawyers will be willing to be involved in the recognition and execution of this basic new constitutional right.”

Jocelyn Downie, health care ethics and law professor at Dalhousie’s Schulich School of Law, said two people have contacted her about obtaining a physician-assisted death since the latest Carter ruling, and she knows at least one other lawyer has been approached.

“It is my belief that lawyers will respond in keeping with the best traditions of the legal profession, and there will be lawyers across Canada willing and able to provide this assistance on a pro bono basis — and that courts will award costs in light of the circumstances that caused physician-assisted death not to be available under a regulatory framework not requiring attendance in a court after February 6,” Downie said by email.

She anticipates that lawyers will ask courts to keep secret the names of applicants, and of the physicians who provide affidavits in support of applications — unless the applicants don’t want anonymity. (Quebec’s law has privacy protections.)

“I believe it is in the public interest to protect the identity of the patient and the providers,” Downie explained.

“Especially at this time, they could be targeted by opponents of physician-assisted dying. They will already, by definition, be facing a grievous and irremediable condition causing enduring and intolerable suffering. I would argue that the public interest in the individuals’ identities does not outweigh the harms to them. There can be accountability with proper anonymization.”

Toronto lawyer Hugh Scher, counsel for intervener Euthanasia Prevention Coalition in the Carter case, disagrees. The open court principle, and public notice and scrutiny, are key to detecting and deterring abuse, he said.

“I don’t imagine that lawyers would be asking for [anonymity],” he said. “I can’t imagine why it would be granted to them.

“The court has not provided an open-ended right to kill people…I think it’s absolutely essential that there is the ability to have clear transparency, that these proceedings be public, that they be accountable, and they are subject to appeal where appropriate.”

Scher said court interventions in some circumstances will also be in order, as they have been, for example, in cases involving patients’ objections to withdrawal of medical treatment.

“I think it’s important, in appropriate cases, that there be the means for interventions from publicly interested organizations who can help to define and explain the law to the courts, and serve a useful role as friends of the court to attempt to flesh out some of these concepts, and what the means are, and what the limits and parameters are,” Scher said.

But he doesn’t expect Carter applications to turn into legal battlegrounds.

“Do I think there is going to be sort of a huge number of cases coming before the courts that are contested and controversial? I would say not.”

Scher said lawyers who object to physician-assisted death on moral grounds, or who do not consider themselves competent to handle a Carter application, can refer a person to other lawyers, or to law societies’ referral networks, or other referral sources, such as Dying with Dignity.

He advised lawyers who do take on such cases to “document, document, document. Be aware of the requirements, both in terms of obtaining proper medical information and evidence and making sure that all second opinions relative to palliative care, relative to psychiatric care have been accessed and met.

“Take all steps to identify vulnerability…because if you’re going ahead with somebody who is truly vulnerable in nature, that can potentially expose lawyers to other risks. You don’t want to be perpetrating a fraud on the court by effectively going through with somebody that is trying to unduly influence, or effect coercion, on somebody.”

He suggested videotaping meetings and instructions would be prudent “You want to be able to truly assess the independence, the judgment of the person, [to] make sure the person you are taking instructions from has the capacity to give those instructions.”

Downie anticipates that judges will construe the Carter criteria “quite narrowly” in the months before enactment of a new law. Lawyers will have to submit evidence from the patient, and from a physician (and possibly more than one) with expertise as to whether the criteria are met.

She advised this will likely need to include evidence that the patient has been provided with the following information by his or her physician: diagnosis; prognosis; available alternatives to physician-assisted death including comfort care, palliative and hospice care, pain and symptom control, and the risks and potential benefits of each alternative; consequences of taking/being given lethal medication (including the risk of it not working); available counselling resources; and the right to rescind a request for physician-assisted death at any time in process.

Downie said evidence will also be required that the patient understands the information provided to him or her relevant to the decision to request physician-assisted death, and appreciates the nature, and can reasonably foreseeable consequences of the decision to request physician-assisted death.

There should also be evidence of the patient’s condition and that any available treatments that exist for the condition are not acceptable to the patient; the patient finds the suffering to be intolerable; and of a clear and explicit request for physician-assisted death.

Importantly, there must also be evidence that the patient is competent in the sense of being able to understand the information relevant to the decision and able to appreciate the reasonably foreseeable consequences of the decision, Downie said. There should also be evidence that the decision is voluntary — i.e. a request made freely, without coerced or undue influence from family members, health care providers, or anyone else.

She noted it’s not clear what evidence judges will require to meet the Supreme Court’s requirement that the applicant be an adult: Is it the age of majority in the particular province or territory? Or will a judge look to the common law and consider an “adult” to be any patient who has the capacity to understand the nature and consequences of the decision to request a physician-assisted death?

There must also be evidence that the condition is “grievous” — in the sense of being a very severe or serious illness, disease or disability — and “irremediable” such that no treatments exist for the condition or, if any treatments exist for the condition, none are acceptable to the person.

The person’s suffering must also be shown to be “enduring,” i.e. not temporary, as well as “intolerable” to the person.

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