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Bill 84 proposes legislative changes to support medical assistance in dying

Ontario's Bill 84, introduced Dec. 7, is a step towards the creation of a responsive framework for those who choose to provide or receive medical assistance in dying, says Toronto health lawyer Mary Jane Dykeman.

“By now we are all aware that effective June 17, the prohibitions in the Criminal Code against physician-assisted suicide were struck down by the Supreme Court of Canada in a February 2015 decision called Carter v. Attorney General (Canada),” she tells AdvocateDaily.com.

“This paved the way for medical assistance in dying in Canada, a term used by the federal government. Although the amendments to the Criminal Code in federal Bill C-15 extended to other federal statutes, the health sector and patients alike have been awaiting the Ontario government’s proposed amendments to provincial legislation.”

Dykeman, partner with DDO Health Law, explains that if passed, Bill 84, the Medical Assistance in Dying Statute Law Amendment Act, 2016, will amend six Ontario laws:

  • Excellent Care for All Act
  • Workplace Safety and Insurance Act
  • Freedom of Information and Protection of Privacy Act (and the parallel municipal legislation, the Municipal Freedom of Information and Protection of Privacy Act or MFIPPA)
  • Coroners Act
  • Vital Statistics Act (in respect of reporting under the Coroners Act)

Bill 84 would amend the Excellent Care for All Act to state that insurance and workplace safety benefits will not be denied based on an individual receiving medical assistance in dying, outlines a government press release and other communications provided to stakeholders. The legislation would also provide immunity to medical practitioners and nurse practitioners involved in medical assistance in dying (other than in cases of alleged negligence.) 

The Freedom of Information and Protection of Privacy Act and its municipal equivalent, MFIPPA, would, if amended, protect against access to information requests naming clinicians and health-care institutions providing medical assistance in dying, the release says.

The Workplace Safety and Insurance Act would be amended to state that the cause of death of a person who receives medical assistance in dying will be the underlying illness or injury. 

Dykeman says it is likely important to individuals making the request, as well as their family members, that the medically assisted death not be documented as “suicide." 

She explains that under the proposed legislation, the coroner would continue to be notified of all medically assisted deaths, but will have discretion in terms of whether each death will be investigated. 

“Bill 84 also makes clear that the coroner’s duty to investigate all deaths not caused by disease would not apply to medical assistance in dying,” she says. 

Dykeman supports the important role played by the coroner’s office, stating that maintaining the discretion to investigate will be important. 

“The role of the coroner is fundamental in this instance, and a balance has to be struck to protect against deaths that are not the capable choice of the individual, while also recognizing that all medically assisted deaths since June 17 have triggered a mandatory investigation and this requirement will be loosened,” she says. 

The Vital Statistics Act would also be amended to change the documentation requirements for coroners should they determine that a death will not be investigated. 

Bill 84 also proposes that a process to review the coroner’s powers as they relate to medical assistance in dying be established within two years and led by the Minister of Correctional Services and Public Safety, Dykeman says.

“This is most welcome, provided the review itself will occur promptly,” she says. “Medical assistance in dying is new to all parts of the health sector, so a review of the authority given to specific stakeholders is certain to be embraced by the chief coroner and his staff. They will also have a wealth of good information and experience to share at that time, even as they do today, given their involvement in the Ontario cases.”

Dykeman says it’s noteworthy that no amendments are proposed for the Long-Term Care Homes Act under Bill 84, which the sector had anticipated could help clarify issues that have garnered much attention of late. 

“These issues include whether, unlike certain other health-care organizations, the home must permit medically assisted dying to occur on-site — for example, allowing external practitioners to provide the service even if the home’s own practitioners have exercised their right of conscientious objection,” she says. 

The government also says it will establish a care co-ordination service, the details of which will be released in 2017. 

“This is said to accord with the system of effective referral established through health regulatory College policy,” Dykeman explains.

She says stakeholders, including those in the legal sector, will be watching as the consultation process continues and to see whether any changes are made to the bill as it moves forward in the new year.

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