Category: Administrative Law

COVID-19 Creates an Urgent Need for Legal Clarity in Medically Assisted Death (MAID)

 

A small percentage of Canadians infected with COVID-19 will die from the virus.  Their death will usually be horrible: lung failure creating oxygen deprivation, causing multiple organ failures.

Ventilators are used to pump oxygen into these compromised lungs, to give the patient a chance to recover.  However, the majority don’t recover, particularly not the elderly and those with other serious medical problems.  Such patients may occupy a scarce ventilator for days or weeks, with death inevitable and foreseeable.  Canada does not have enough ventilators, and it looks like we will be unable to acquire them soon enough for everyone in need.

Some very sick patients who will not get a ventilator will die slowly, from gradual suffocation.  With insufficient ventilators, physicians will have to make the godlike decision of who lives and who dies.  Physicians may be less tortured and traumatized if they know that those they have selected to die can choose, through medically assisted death (MAID), not to die slowly and painfully.  But this law is controversial. It was held unconstitutional in a recent court decision. When the law is unsettled it is risky for physicians to administer MAID because the consequence might be criminal prosecution.

For anyone whose death is reasonably foreseeable (with or without a ventilator), the current law permits a patient to choose MAID, provided they meet the legal requirements.  Most of these legal requirements can be met, but one could be an obstacle.

This is the requirement that the patient must read a request form and sign it in the presence of two independent witnesses.  Criminal Code Section 241.2 (3) (c) requires the medical practitioner or nurse practitioner who will administer the drug to:

(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) [if the patient is too ill to sign personally] — before two independent witnesses who then also signed and dated the request; [underlining added]

Today, it would be unsafe for two witnesses to be near someone dying from COVID – 19 to watch the patient read and sign a form.  It would only be safe to do this virtually, e.g., via smart phones.  The legal question is whether the word “before” in the above-quoted law should be interpreted literally, as meaning physically in front of the witnesses, or whether it should be interpreted purposively.  The Supreme Court of Canada has repeatedly held that our laws should be interpreted purposively, which requires determining the purpose of the law.

In my view the purpose is to ensure that the patient made the request voluntarily (without pressure from family or medical staff), understood what they were requesting, and gave their informed consent.  This can be determined without being physically present.

Another requirement is that the two witnesses must sign and date the request form.  Again, a purposive interpretation would see these two signatures as being to provide the evidentiary record of the witnessing.  This could be done through a typed signature sent via text or email, or even via oral instruction to sign on their behalf given to someone physically present with the patient.

If our pet dogs or cats are terminally ill and suffering greatly we can end their lives humanely.  Should we not be able choose the same compassionate end for ourselves if we are unlikely to recover?

The Canadian Medical Association, which issues guidelines to physicians, should obtain a legal opinion (if it has not already done so) to provide physicians with guidance on how to administer MAID in the age of COVID – 19.  If necessary, the Prime Minister should recall a quorum of Parliament (as he did last week for financial assistance) to amend the Criminal Code to remove the legal uncertainty surrounding MAID.  This would help those of us who are likely to die soon to choose not to live their last few days on earth slowly suffocating in isolation.

Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?

If you have not read Part 1 of this post I suggest that you read it first, here. This Part is for those interested in law and how it develops but is not a technical law journal article. For anyone wanting a detailed legal analysis I suggest reading Paul Daly’s 5 blog posts starting here.

A Bit of History

Changing Courts, Changing Attitudes

Until about the early 1980’s most Canadian judges were men, usually appointed from law firms representing businesses and governments.  Judges appeared generally sympathetic to litigants like their former clients and less sympathetic to unions, women and the less fortunate in society. As a broad generalization, judges were to the political right of the average Canadian.

Gradually, judicial appointments became more diverse and judicial attitudes evolved. The attitude change was substantially influenced by administrative law professors like Bora Laskin (who eventually became Chief Justice of the Supreme Court of Canada). Some law professors (then and now) serve as labour arbitrators or members of administrative tribunals like Labour Relations Boards or Human Rights Commissions. Unions will reject the appointment of arbitrators unless they believe them to be at least somewhat sympathetic to unions. Hence these arbitrators and labour board members led the way, both in law journal articles and as judges, to offset the perceived judicial bias against unions and labour relations adjudicators.  The attitude moved leftwards and has remained there, but whether you see this as having moved to the political centre or to the left of centre depends upon your political views.

Judges protected labour adjudicators by declaring that labour boards had labour relations expertise equal to or greater than generalist judges. In practice this was usually true.  “Expertise” became shorthand for “stop picking on them” and show some deference. Considerable respect for such decision-makers has been the judicial policy for decades.

Continue reading “Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?”