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Focus: Physician-assisted dying and the estate plan

|Written By Judy van Rhijn

The Supreme Court’s decision Carter v. Canada (Attorney General) to strike down the criminal provisions relating to physician-assisted dying has opened the door to an expansion of end-of-life planning. While the area remains murky pending legislative reform, estate lawyers and their clients are cautiously proceeding to record end-of-life wishes that anticipate new legislation.

‘We can plan but we warn the client we don’t know if their directives will be binding,’ says Holly LeValliant.
With less than six months left until the suspended judgment of the Supreme Court comes into effect, federal and provincial panels are hurrying to investigate foreign practices and formulate workable legislative options. The expert panel on options for legislative reform is the federal body charged with the task. Its three members, consisting of professors of psychiatry and palliative care, disability studies research and education, and law, have been busy consulting with key stakeholders, subject-matter experts, medical authorities, and the interveners from the Carter case as well as canvassing comments from the public.

In the meantime, estate lawyers are already fielding queries about the case and attempting to draft wills and other end-of-life directives that take advantage of the prospect of legalization. “I would say that, yes, more and more of my clients are asking how the recent decision might impact them and their loved ones,” says Holly LeValliant of Basman Smith LLP. “I think people are excited about the possibility of having more choices open to them.”

Suzana Popovic-Montag of Hull & Hull LLP says the really key thing about the case is the increased awareness of the issue. “Now, there is a discussion because the Supreme Court has blessed the fact that doctors can assist the critically ill. We currently have do-not-resuscitate orders, the right to refuse or withdraw treatment, the right to refuse food and drink, and palliative sedation, which is typically the last resort. What assisted death does is to give an alternative to the last one. The physicians can really relieve suffering and hasten death.”

Lawyers aren’t seeing any changes in practice at the hospitals as yet. “Understandably, physicians are leery without guidelines and the standards needed to implement it,” says Popovic-Montag. “It is an unbelievable thing to even think about partaking in and especially without guidelines. Doctors still have the right to refuse to partake in it in recognition it’s a moral, personal, and ethical decision for each doctor that’s asked to assist.”

The Carter decision canvasses the need to be very careful about both monitoring and enforcement around assisted dying. “We have always been scared that this will be a slippery slope with people abusing it,” says Popovic-Montag. “It scares me more that someone might apply it in error because it’s not undoable. The court recognizes that other jurisdictions are doing it and doing it well.”

The Supreme Court has given some guidance and parameters to the health profession that lawyers are making note of in their drafting. “Practitioners start with the law,” says Popovic-Montag. “The key is clear consent by a competent individual with a grievous or irremediable condition enduring suffering that is intolerable to that individual. That’s a pretty subjective test on each one of those.”

LeValliant sounds a note of caution. “We can plan but we warn the client we don’t know if their directives will be binding. There may be moral suasion for the substitute decision-maker, institution or doctor. The key is dialogue — letting people know your wishes.”

Hugh Scher, who represented the Euthanasia Prevention Coalition in Carter, raises the argument that prior consent comes with the necessity for informed consent. “It is a serious risk to go ahead if safeguards are then put in place which preclude various forms of conduct and measures,” he says, stressing that the definition of prior consent is a full and informed understanding of the circumstances at the time someone seeks to implement the wishes.

He also believes an advanced directive must be specific to the condition the person is suffering from. “There cannot be a general expression or general wish. They must be cognizant to what the situation will be at the time.”

LeValliant thinks the legal profession is looking for more direction from Parliament. “While lawyers may be eager to apply the decision to their practice, I think it might be more prudent to adopt a wait-and-see attitude since we do not yet know exactly how legislation might affect things. The legal profession will need to know what safeguards are in place before relying on the decision to protect vulnerable people from being coerced into requesting physician-assisted dying and to ensure that the person requesting physician-assisted dying is mentally competent.”

In fact, the Supreme Court clearly said consent would be necessary at the time, says Scher. “In the context of assisted euthanasia, the Supreme Court does not permit prior consent. The notions of consent, capacity, voluntariness, and absence of duress are a fundamental requirement to access this measure. That’s not to say the legislature couldn’t legislate that. The Supreme Court decision is a floor beneath which people cannot operate, but the legislature could implement allowances for prior consent for assisted suicide.”

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