Today, the Supreme Court’s deadline for the federal government to regulate Canadians’ access to medical assistance in dying expires. The Liberal government has failed to pass Bill C-14.
So what happens now?
“You have the Justice Minister and the Health Minister who are saying we’re in a legal vacuum and there will be nothing to guide this particular service. That viewpoint is one end of the spectrum,” says Catharine Schiller, a lawyer, nurse and assistant professor in UNBC’s School of Nursing. “At the other end, organizations like the BCCLA are saying there is no legal void. We’ve got guidelines by the provincial medical regulators and so it’s going to be fine.”
Schiller says most Canadians, including doctors and nurses, probably fall somewhere in the middle. The Carter decision handed down by the Supreme Court is clear that, in specific circumstance, Canadians’ have a right to medical assistance in ending their lives but most people will feel better when there’s concrete legislation on the issue.
The Liberals have been criticized for their unwillingness to allow any amendments to the bill while it was in the House of Commons. Citing the June 6 deadline, the government pushed parliament to approve the bill as it was.
“I was thrilled with the level of thoughtfulness and the quality of the debate that was happening in the Senate. I think it’s what we hoped for in the house of commons and didn’t get an instead now we’re getting it in the Senate where they’re saying, ‘We’ll take the time that this needs to get it right.’”
So far, the most contentious aspect of the bill seems to be the government’s language surrounding eligibility for aid in dying. In its current form, only Canadian adults with incurable illnesses meet the criteria.
“If the Supreme Court had meant incurable, they would have said incurable but they didn’t and they were very clear in their decision that you didn’t require a terminal illness. [The government is] using very different language in the legislation and not understanding that language makes a difference.”
In fact, Kay Carter, the woman whose case struck down previous restrictions on medical assistance in dying, would likely not qualify for medical help in ending her life under Bill C-14.
The restrictions have been called unconstitutional by several MPs, including Skeena Bulkely-Valley MP Nathan Cullen, and courts in Alberta and Ontario have already ruled to that effect. Cullen has said C-14’s constitutional issues mean the federal legislature “will be seeing this movie again in a year or so.”
Schiller says it’s chronically and terminally ill Canadians who will bear the cost of this issue.
“When you rely on constitutional challenges to build your law, you end up with a really costly, time-consuming, inefficient way of building your law that puts the onus on individual citizens to bring those challenges to court. And to do it at a time in their lives when they have a terminal illness, are suffering intolerably and then say now go do a constitutional challenge to see if you’re eligible or not, I happen to think that a lot of that responsibility should have fallen on the government to do a clear bill.”
While national and provincial regulators for physicians have come out with guidelines for their members regarding medically assisted dying, nursing regulators haven’t.
“The College of Registered Nurses of BC and the Canadian Nurses Protective Society are largely waiting to see what clarity is provided about the nursing role in the new bill. They’re hoping to see some clarity about the what the role of the nurse can be and should be – where they’re legally protected and where they’re not. That holds for nurse practitioners, who are enabled under C-14 to provide medical assistance in dying, but it also applies to nurses who are part of the team, who work in health care and typically administer regulations. The Carter decision really contemplated physicians doing this service. It’s Bill C-14 that really put nurse practitioners into the mix in a very formally way. Without Bill C-14 being enacted. I’m not sure how the CRNBC and the CNPS are going to issue guidance to their members.”
This could particularly affect Canadians living in rural and remote communities who rely on nurse practitioners for their primary care. Without clear guidelines, Schiller says those nurse practitioners may be hesitant to help their patients end their lives comfortably and safely.
It’s anyone’s guess how long it will be before Bill C-14 becomes law.
In the meantime, the quality of life and self-determination of hundreds, if not thousands, of Canadians hangs in the balance.