Lack of aid in dying law leaves doctors unsure how to proceed

While laws remain vague, doctors are being urged to proceed with caution.

TORONTO – Canadians will have the right to seek a doctor’s aid to terminate their lives, now that the landmark Supreme Court of Canada ruling is coming into effect. But with no federal legislation yet passed by Parliament, many physicians are unsure which patients will be eligible for help to end their suffering, doctors groups say.

In its ruling last year – known as the Carter decision – the Supreme Court overturned the ban on physician-assisted death and euthanasia for patients deemed to have a grievous and irremediable medical condition that causes intolerable suffering.

But the Liberal government’s proposed Bill C-14, now before the Senate, would restrict assisted death only to patients with a physical disease whose demise is “reasonably foreseeable.” Those with psychiatric conditions, for instance, would not be eligible for aid in dying.

This “in-between” legal situation poses challenges for doctors, many of whom still aren’t clear about what “grievous and irremediable” means when deciding if an individual patient would meet the Supreme Court criteria, said Dr. Jeff Blackmer, vice-president of medical professionalism for the Canadian Medical Association.

And with no federal legislation enacted to replace the Criminal Code sections outlawing euthanasia and assisted death, many doctors are anxious about proceeding with the process to help a patient die, Blackmer said Monday from Ottawa, noting that even the Carter eligibility standards “are quite vague.”

“And bear in mind that this is not a situation where physicians will be subject to a slap on the wrist or a licence suspension. If they make the wrong determination, they will still be liable for federal charges, just as they would if a law (is in place) and they do not follow the parameters of that law.

“If they put a patient to death and someone takes them to court and the judge finds that this patient did not have the grievous and irremediable condition, then that physician is going to face jail time.

“We certainly hope that will not come to pass, but even the fact that those possibilities exist understandably makes a lot of physicians quite nervous.”

Dr. Jennifer Hall, president of the College of Family Physicians of Canada, said many family doctors likely will be reluctant to help patients end their lives until a federal law has been passed.

The group’s members are looking for more clarity about what criteria will end up governing doctor-assisted death, Hall said.

“Patients will discuss with their family doctors first and family physicians want to be sure that they have the best information to provide to their patients and to help counsel them in the best way possible … The more clarity there is, the more comfortable they are in providing that information to their patients.”

Despite the lack of certainty resulting from the absence of a federal law, Blackmer said some doctors will be willing to provide aid in dying to certain patients, although he believes most would first seek legal advice from the Canadian Medical Protective Association, the organization that provides liability protection to physicians.

That group has warned doctors to proceed with caution, he noted.

Still others will feel comfortable going ahead with helping patients to die “under the current circumstances,” Blacker acknowledged. “I honestly do not know if that’s 10 doctors or a hundred or a thousand, but there are certainly some physicians who will step forward even in the absence of that legislation.”

One of those is Dr. Ellen Wiebe, a Vancouver practitioner who strongly believes in a patient’s right to die.

Wiebe is among a group of doctors willing to counsel patients and provide aid in dying through an organization called Hemlock AID. In February, she helped Calgary ALS patient Hanne Schafer after an Alberta court granted her permission to terminate her life.

“For myself and my colleagues it’s no problem, in the sense that we have guidelines and standards to follow that the College (of Physicians and Surgeons) has set for us,” Wiebe said of the B.C. regulatory body.

“We’re working under the Carter criteria and I have no problem working under those,” she said, adding that she has a number of people with ALS who have requested help in dying, “and we have patients booked for the next couple weeks.”