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The Ontario court is the first to stipulate the kind of evidence lawyers and their clients will need to make an application. (iStockphoto/iStockphoto)
The Ontario court is the first to stipulate the kind of evidence lawyers and their clients will need to make an application. (iStockphoto/iStockphoto)

Ontario sets protocol for assisted dying ahead of new law Add to ...

Ontario’s Superior Court of Justice has issued a list of safeguards for people seeking a doctor’s help to end their lives in the months before a new law is in place – asking for both medical and psychiatric assessments, a seven-day notice period and the option of alerting family and others who might be affected.

The guidance is included in a practice advisory issued by Ontario Chief Justice Heather Smith late last week. It comes days before Feb. 6, the date when the Supreme Court of Canada has ruled that individuals can ask a judge for permission to have a medically assisted death.

The Ontario court is the first to stipulate the kind of evidence lawyers and their clients will need to make an application – although the guidance is subject to orders by individual judges. Only Quebec has a law in place that sets out a framework for doctor-assisted death.

Last month, the Supreme Court gave the federal Liberal government four more months to prepare legislation in response to its 2015 ruling that struck down the ban on doctor-assisted death. A parliamentary committee is expected to report by the end of the month.

The Ontario move was welcomed by lawyers for providing clear guidance under unusual circumstances, but some involved in the case before the Supreme Court questioned whether certain measures restricted access more than the court intended.

Sheila Tucker, co-counsel for the plaintiffs in the Carter case, which was heard by the Supreme Court, said the legal team is writing a letter on behalf of the B.C. Civil Liberties Association to the Ontario Superior Court to express concerns about inconsistencies with the original high court decision.

Ms. Tucker said her biggest concern is a provision that asks attending physicians if the applicant “is or will be physically incapable of ending his or her life without a physician-assisted death.”

The implication, she said, is that if someone can take their own life, they do not need a doctor’s help.

The requirement for a psychiatric assessment could also create a barrier to access, she said, as could the provision that gives the court the option to notify “spouse/partners, children, parents, grandparents, siblings and any other person who will be affected.”

David Baker, a Toronto lawyer who represented the Council of Canadians with Disabilities and the Canadian Association for Community Living before the Supreme Court, said he already has one client with ALS who wants to use the courts to get medical help to end her life and believes he can work within the court’s guidelines.

“This is extremely helpful,” said Mr. Baker, who has advocated that the new law include adequate safeguards to protect vulnerable individuals. “Now the courts know what to do. Without this, we would be in turmoil.”

In the case of his client, Mr. Baker believes he can find a psychiatrist who will waive the charges for an assessment. A greater challenge, he said, could be getting the support of the attending doctors.

He expects there will be other applications during the four-month window, and has already received two other inquiries.

Mark Handelman, a Toronto lawyer who specializes in health-care law, said the next four months will be “uncharted waters” for the courts.

“Of course they have erred on the side of caution,” he said. “In this case, it will be a judge signing his or her name to a document that authorizes a physician to assist in killing a patient, and that is unique.”

He expects the first few applications at least will have to be meticulous, with doctors and judges being especially careful.

Jocelyn Downie, a law professor at Dalhousie University, said she supports most of the measures, but hopes the Ontario court will make revisions based on the comments it receives.

“I hope this isn’t carved in stone,” she said.

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