Suicide had been a crime in Canada since its colonization. It was also considered immoral and sinful in many religions. In 2016 the Supreme Court of Canada (SCC) decided it could no longer be a crime. Legislation soon followed making it legal under certain conditions, now known as Medical Assistance in Dying (MAID). Our blog has written extensively in the past on this subject. What follows is an update on some of the ongoing legal developments occurring across Canada.
We know that there are doctors opposed to having any involvement with MAID. Their numbers are not known. However, McGill University recently published a national survey of 1,200 graduating physicians on their willingness to perform MAID. The result was that overall, 71% of the respondents would be open to providing MAID. The graduates from the province of Quebec were the most supportive at 85%, and those from Alberta were the least supportive at 63%. Religious belief was the main reason cited for non-support amongst the respondents.
Jean Truchon and Nicole Gladu are asking the Quebec Superior Court to rule that the federal and provincial MAID requirements are too restrictive and constitutionally invalid. Nicole had polio as a child and has since developed post-polio syndrome. She suffers from a lack of mobility and function due to her deteriorating muscles and relies on an electric wheelchair. Jean has cerebral palsy and has lost the use of all of his limbs. Although these conditions will progressively worsen, it is not a certainty that their lives will end soon naturally. They both wish to end their lives through MAID, with Gladu stating that for her, living is mere existence, and not a life with real quality or meaning. Both Gladu and Truchon have undergone evaluations which concluded that they are competent and do not suffer from any condition that would affect or impair their judgement.
To be considered eligible for access to MAID at the federal level, the applicant's natural death is imminent and foreseeable. The provincial legislation in Quebec goes a step further, requiring that the applicant is at the end of their life. The thrust of their argument is that the SCC, in their Carter decision, gave the right to MAID for all patients with a grievous and irremediable medical condition. There was no additional requirement imposed that the person must also be close to death or that their death was foreseeable. These requirements in the legislation are subjective and dependent on the assessment of doctors and not the patients. The counterargument is that these provisions protect the vulnerable patient who although seriously ill, is not close to death. The results of Gladu and Truchon's federal challenge would apply nationally, subject to appeal.
There is also an ongoing debate and study on the following issues:
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Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.
Effective 11:59 p.m. on March 24, 2020, the Ontario government ordered the closure of “non-essential” workplaces. The list of “essential” workplaces included “health care professionals providing emergency care including dentists, optometrists and physiotherapists”.
The College of Chiropractors of Ontario (“CCO”) interprets this list as including chiropractors, and we agree.
So the question becomes – what is “emergency care”?