Physician-Assisted Death – Alberta Decision

On January 15, 2016, the Supreme Court of Canada granted a four-month extension (to June 6, 2016) of the suspension of its declaration in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter), that ss. 14 and 241(b) of the Criminal Code are of no force and effect to the extent that they prohibit physician-assisted death for competent adult persons that (1) clearly consent to the termination of life, and (2) have a grievous and irremediable medical condition that causes enduring and intolerable suffering to the individual in the circumstances of his or her condition. At the same time, during the four-month extension, the Court granted an exemption from the prohibition on physician-assisted death to persons that met the Carter criteria so that they may apply to the superior court of their jurisdiction for relief.

As set out in our previous post, Physician-Assisted Death – An Update, the Supreme Court of British Columbia recently issued a procedural checklist intended to provide guidance to those intending to bring an exemption application prior to June 6, 2016, including a summary of the evidence required on such applications.

The first application for physician-assisted death was granted by the Court of Queen’s Bench of Alberta on February 29, 2016 in HS (Re), 2016 ABQB 121 (“HS”), to a woman in the final stages of amyotrophic lateral sclerosis (ALS). Although she was a resident of Calgary, the physician assisted death was to be carried out on private property in Vancouver by two local physicians. Of note is that the approach taken by the Alberta Court of Queen’s bench in HS is more flexible than the procedure prescribed by the B.C. Supreme Court.

The decision in HS provides further guidance to individuals seeking to avail themselves of the exemption granted in the 2016 Carter decision, and establishes the following:

  • The Supreme Court’s decision on January 15, 2016 granted individuals that met the Carter criteria an automatic exemption from the Criminal Code prohibition on physician-assisted death. Accordingly, the court’s role on applications for relief prior to June 6, 2016 is simply to determine whether a particular claimant is inside or outside the group that benefits from that exemption.
  • An order granting authority to access physician-assisted death need not require that competence be established both at the time of the court application and at the time of death because an ongoing determination of competence is part of and flows from the physician-patient relationship. While “ongoing” consent is required, a formal reassessment is unnecessary beyond the obligations placed on physicians to obtain genuine, ongoing, and informed consent to treatment.
  • Licensed pharmacists who prepare and provide medications are necessarily protected under the term “physician-assisted death”, since what is contemplated in Carter is not death by a doctor, but a physician-assisted process designed to allow for a relatively painless and peaceful death through the use of pharmaceuticals. Without pharmacists, physicians would be incapable of providing medication and assisting in the manner contemplated in Carter.

The Court in HS does not opine on whether the same protection from criminal liability extends to nurses and other medical practitioners that may provide assistance to physicians in this context.