Doctors seek more clarity on assisted dying

Top court’s extension of law ran out but doctors want to help patients

The president of the Saskatchewan Medical Association (SMA) is concerned about the grey area surrounding doctor-assisted dying.

“It’s a tough area at the moment, but I’m hoping there will be better clarity in the ensuing days,” Dr. Intheran Pillay said Monday.

On Feb. 6, 2015, the Supreme Court of Canada struck down a portion of the law prohibiting physician-assisted dying.

“It only struck down the prohibition to the extent that it applied to physicians assisting patients who met certain defined criteria,” said Bryan Salte, associate registrar and legal counsel with the College of Physicians and Surgeons of Saskatchewan.

“Those were a grievous and irremediable medical condition, intolerable suffering that can’t be alleviated by any means acceptable to the patient and a clear consent by the patient to their own death.”

The 2015 decision gave the federal government until Feb. 6, 2016 to pass new legislation.

“For that one-year period, the law remained in effect and it was illegal for doctors, as well as everybody else, to assist somebody to die,” Salte said.

In January 2016, the federal government applied to the Supreme Court of Canada for an extension to pass new legislation, which was granted until June 6.

Prior to Monday, individuals could apply to the court and ask for a personal exemption to allow them to access medical assistance in dying.

Bill C-14 is now before the Senate, but senators voted Friday to send the divisive bill to a committee on legal and constitutional affairs.

The committee isn’t expected to report on the bill until the Senate resumes Tuesday — a day after the high court’s deadline.

Medically assisted dying will become legal in Canada on Tuesday.

Under the criteria of the Supreme Court, doctors can’t be prosecuted under the Criminal Code if they assist a patient suffering from a “grievous and irremediable illness”, the patient has intolerable suffering and prior consent is given by an adult patient.

Physicians are divided in their viewpoints about medically assisted dying, Pillay said Monday.

“Having said that, we’re aware that the law has been struck down and that physicians will need to look after the needs of their patients when it comes to medical assistance in dying,” Pillay said. “Those who are willing providers are still able to provide it despite the delay in terms of passing the current Bill C-14.”

In the interim, Pillay said physicians who are willing providers should contact the College of Physicians and Surgeons of Saskatchewan, the SMA and the senior medical officers in their regional health authorities to get guidance about how to find help for their patients.

Personally, Salte is concerned a doctor could be prosecuted even if the physician believed the patient met the criteria.

The legislation has what Salte calls “good-faith protection,” where a doctor who participates in medically assisted dying is protected from criminal prosecution if they do so in good faith on reasonable grounds.

If the proposed legislation goes ahead, in order to prosecute a doctor or a nurse helping a doctor or a pharmacist dispensing the medication, “you’d have to demonstrate that in the case of a doctor that the doctor didn’t believe that the patient met the criteria or the doctor was acting unreasonably in coming to a conclusion that the patient met the criteria,” Salte said.

As a result, he worries medically assisted dying could be limited to only the clearest of cases and patients who meet the criteria might not be able to find a physician willing to assist them.

Salte has been working with government and regulatory officials to develop forms that patients and physicians would complete to clearly state they are meeting the defined criteria.

He intends to take the forms to the college’s June 24 council meeting for approval.

“At the moment, there is not a defined form in Saskatchewan,” he said.