MAiD is the acronym for assisted suicide or medical assistance in dying. A person’s suicide is facilitated by health professionals, usually through medication. The taking of one's own life was a criminal offence in Canada until 1972. However, providing any assistance to suicide remained a criminal offence. This was the case until the Supreme Court of Canada’s (SCC) landmark decision in Carter v. Canada (2015). There, the court unanimously ruled that physician-assisted suicide was to be allowed and struck down the relevant section of the Criminal Code as being an infringement of the Canadian Charter of Rights and Freedoms (Charter). The criminal section was held to be in violation of the right to life, liberty and security of the person. The ruling was suspended for one year to allow the federal government time to make the appropriate statutory amendments and other steps toward implementation.
Most structured religions condemn suicide, however caused, and characterize it as a sin. That label is a risk a person of faith needs to take if they choose MAiD to end their life. So far this is just a personal decision. Everyone who qualifies can as of right seek help in dying but has little input on how it is to be characterized by their faith. A problem arises however when the hospital the patient wants to use is a faith-based organization. Religion and hospitals usually make for a good fit. However, in Ontario, many hospitals are the product of the work of the Catholic Church. Many are known by and named after a saint of the church such as Saint Joseph, the patron saint of the church. They have provided care to Ontario’s patients for well over one-hundred years and long before public money was available.
The Catholic Church condemns suicide and anyone promoting, or helping, with the effort. Those who died by (or assisted with) suicide were, in accordance with the faith, not technically entitled to be buried in sacred ground or to be granted a funeral mass. These views have softened, and burials and masses are now allowed. Still, a stigma remains when it comes to the actual step of taking one's life.
Canada's Catholic hospitals are opposed to any MAiD steps being taken in their institutions. In fact, they forbid it. They are legally bound to provide information about eligibility, options and to answer a patient's questions regarding the service. If the patient decides to proceed with their plans, they are then transferred to another, non-Catholic facility to carry out their wishes. This occurs whether the patient is Catholic or not.
This has led to several horror stories of patients being wheeled to the street to have their assessment done, so as to be off hospital grounds. It has also led bioethicists, doctors and newspapers to condemn this practice and demand government action. It has led to lobbying both pro and con. See the Euthanasia Prevention Coalition (EPC) and Dying with Dignity Canada (DDC). The battle in each case is directed toward the provincial governments that fund and regulate hospitals.
It is the provincial government that funds and regulates hospitals in all provinces. In Ontario, the government has so far supported the Catholic hospital’s conditions for MAiD. In fact, the Ford government has recently inserted statutory protection for faith-based institutions in the Patients First Act (PFA). The PFA amends part of the existing Public Hospital Act in a way that gives the health minister additional powers to give directives to hospital boards. In the revised act, reintroduced in early October, there is an added caveat that any directives issued by the health minister to hospital boards:
“Shall not unjustifiably as determined under section 1 of the Canadian Charter of Rights and Freedoms require the board of a hospital that is associated with a religious organization to provide a service that is contrary to the religion related to the organization.”
Those opposed to any restriction on MAiD feel that this amendment creates a two-tier system of healthcare. They also believe the amendment, and the position of Catholic hospitals, will not survive a Charter attack. More litigation and statute law are no doubt soon to follow.
This issue is far from over. Catholic hospitals in other provinces are under similar scrutiny. Some have reportedly crumbled in Nova Scotia. Those in Alberta and British Columbia face regular criticism. The only thing left to do is to wait and see how the teeter-totter ends up. In addition, we should feel sympathy for the bioethicists at all Catholic-based hospitals. It will be a rough ride going forward.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.