This document was prepared by the staff of the Parliamentary
Research Branch to provide Canadian Parliamentarians with plain language background and
analysis of proposed government legislation. Legislative summaries are not government
documents. They have no official legal status and do not constitute legal advice or
opinion. Please note, the Legislative Summary describes the bill as of the date shown at
the beginning of the document. For the latest published version of the bill, please
consult the parliamentary internet site at www.parl.gc.ca.
LS-347E
BILL S-2: AN ACT TO FACILITATE THE
MAKING OF LEGITIMATE MEDICAL DECISIONS
REGARDING LIFE-SUSTAINING TREATMENTS
AND THE CONTROLLING OF PAIN
Prepared by:
Mollie Dunsmuir
Law and Government Division
26 October 1999
LEGISLATIVE HISTORY OF
BILL S-2
HOUSE
OF COMMONS |
SENATE |
Bill
Stage |
Date |
Bill
Stage |
Date |
First Reading: |
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First Reading: |
13
October 1999 |
Second Reading: |
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Second Reading: |
23 February 2000 |
Committee Report: |
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Committee Report: |
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Report Stage: |
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Report Stage: |
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Third Reading: |
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Third Reading: |
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Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
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TABLE OF CONTENTS
BACKGROUND
DESCRIPTION AND ANALYSIS
APPENDIX
BILL S-2: AN ACT TO FACILITATE THE
MAKING OF LEGITIMATE MEDICAL DECISIONS
REGARDING LIFE-SUSTAINING TREATMENTS
AND THE CONTROLLING OF PAIN
BACKGROUND
On 23 February 1994, a Special Senate
Committee on Euthanasia and Assisted Suicide was appointed "to examine and report
upon the legal, social and ethical issues relating to euthanasia and assisted
suicide." On 6 June 1995, the Committee submitted its report, Of Life and Death,
to the Senate. The Committee had begun by considering the scope of the Report, an issue
that had generated considerable discussion:
The Committee found that it had to examine
and become familiar with many of the current health care practices across Canada by
medical practitioners, nurses, medical institutions and community services as well as the
role that governments play in influencing and directing the provision of such services. .
.
These other end-of-life considerations . .
.must be explored in order to ensure that those who engage in future debate are fully
informed of the wide ramifications of the issues. (p.3)
Accordingly, the Committee included
chapters on:
- the terminology involved in end-of-life situations,
- pain control and sedation practices,
- withholding and withdrawing of life-sustaining treatment,
and
Although the Committee could not reach a
consensus on all issues, the recommendations in these earlier chapters were unanimous, and
are found in the Appendix.
In discussing the background to issues
surrounding death and dying, and why these were of such great public interest, the
Committee identified six different factors:
the difference between the
view of some medical professionals that death represents a medical failure and the view of
others, including palliative care specialists, that care of dying patients should be aimed
at alleviation of suffering rather than a cure;
The convergence of these factors led
Committee members to conclude that they would first have to define the appropriate
terminology and undertake a full discussion of palliative care, pain control, and the
withholding and withdrawing of treatment.
Bill S-2 primarily seeks to implement the
Committee recommendations on pain control and the withholding/withdrawing of
life-sustaining treatment; it also touches on issues of terminology, palliative care and
advance directives.
DESCRIPTION
AND ANALYSIS
Bill S-2 begins with a preamble that
situates the bill firmly within the context of the report of the Special Committee.
Clause 1 gives the short title of the
proposed legislation, the Medical Decisions Facilitation Act. The Special Committee
had recommended that the Criminal Code be amended to clarify and explicitly
recognize in what circumstances it is legal to (a) withhold and withdraw life-sustaining
treatment and (b) to provide treatment that aims to alleviate suffering but that may
shorten life. As Bill S-2 also deals with other health issues in clause 6, however, a
simple amendment to the Criminal Code was not possible.
Clause 2 would clarify that a health care
provider can legally provide sufficient medication to alleviate physical pain, even if
this requires dosages that might shorten the life of the person. The Special Committee
recognized the present situation whereby "providing treatment aimed at alleviating
suffering that may shorten life is legal. However, it also recognize[d] that there are
misconceptions on the part of the medical profession and the public as to the current
legal status of this practice" (p. 31). The confusion leads to fear of liability,
which may in turn result in the administration of inadequate medication so that the
patient suffers unnecessary pain. As well, a secretive medical environment makes it
difficult to obtain data, thereby inhibiting research into pain control, and possibly even
masking potential abuses.
The bill aims to clarify that protection
from criminal liability applies only where the purpose of the medication is to alleviate
pain, and is limited to the alleviation of physical pain. The Special Committee had used
the broader terminology "alleviation of suffering," but clause 2 narrows the
scope and excludes situations where medication might be administered to alleviate
emotional or psychological suffering. Moreover, clause 2 would not provide protection
where another ground of criminal liability, such as criminal negligence, might exist.
Finally, clause 2 specifically does not apply to "mercy killing" situations,
where there is an intention to cause death.
A "health care provider" is
defined as a person qualified to practise medicine who is responsible for the treatment
and care of the person involved, or a nurse or other person working under the direction of
the medical practitioner. This recognizes the fact that it is very often nurses, working
under the instruction of a physician, who are responsible for ongoing pain control.
Clause 3 would clarify that there is no
criminal liability when a health care provider withholds or withdraws life-sustaining
medical treatment from a person, provided that the person, while competent, has made a
valid request for such action, in accordance with clause 3(2). Alternatively, clause 3(3)
then sets out the procedure required to obtain such permission when the person is not
competent.
"Life-sustaining medical
treatment" is defined as any medical or surgical procedure intended to prolong life,
including artificial hydration and nutrition. The Special Committee gave the following
definitions and examples:
The Committee has defined withholding
life-sustaining treatment as not starting treatment that has the potential to sustain
life -- for example, not instituting cardiopulmonary resuscitation (CPR); not giving a
blood transfusion; not starting antibiotics; or not starting artificial hydration and
nutrition.
Withdrawing life-sustaining treatment is stopping
treatment that has the potential to sustain life. Examples include removing a
respirator or removing a gastric tube supplying artificial hydration and nutrition. (p.
37)
Clause 3(2) deals with the situation where
a competent person makes a "free and informed request" that treatment be
withheld or withdrawn. The definitions of "free and informed" and
"competent" in Bill S-2 are very close to those used in the Report of the
Special Committee:
"Free and informed consent"
means the voluntary agreement by a person who in the possession and exercise of sufficient
mental capacity, as defined by an appropriate medical professional, makes an intelligent
choice as to treatment options. It supposes knowledge about the consequences of having or
not having the treatment and about possible alternatives. The consent must be free from
coercion, duress and mistake. (p. 15)
"Competent" means capable
of understanding the nature and consequences of the decision to be made and capable of
communicating this decision. (p. 13)
The bill would clarify that a competent
person is able to consent in advance to end-of-life health care decisions, through a
written directive, or "in writing or by words or signs," provided there is one
witness who is not a health care provider.
Clause 3(3) deals with the situation where
a person becomes incompetent before having made a decision. In that case, a request to
withhold/withdraw treatment could be made by (1) a proxy appointed under provincial law;
(2) if there is no proxy, a legal representative having the authority to make personal
health care decisions for the patient; or (3) if there is neither a proxy or a personal
health care representative, the person most intimately associated with the patient.
Clause 4 is the definition section; the
definitions of "competent," "free and informed request," "health
care provider," and "life-sustaining medical treatment" have been discussed
above.
Clause 5 states that nothing in the Act
would impose a duty to provide medical treatment. One of the purposes of the Act is to
clarify that a patient can make the decision to refuse treatment, but such a decision has
no effect on the provision of treatment. If a health care professional feels that
treatment is futile, he or she is under no new obligation to provide it. Similarly, if a
health care professional feels uncomfortable with providing a level of pain control that
may shorten life, the bill clarifies that he or she is not under any new obligation to
provide it.
Clause 6 recognizes that many of the
recommendations of the Special Committee involve the need for research and guidelines.
Because the issues surrounding pain control and withholding/withdrawing of treatment fall
so much into a "grey" area, accurate information tends not to be available. Bill
S-2, by clarifying the legal situation, should greatly assist in making such data
available, but the need for education and guidelines would continue. Because the provinces
play such an important role in health care, the clause makes clear that Minister of
Healths mandate could include coordinating, with provincial authorities and
professional health care associations, the establishment of national guidelines for
withholding/withdrawal of treatment, pain control and palliative care. The Minister of
Health would also be authorized to encourage public education with respect to pain control
and palliative care. Clause 6 also proposes that the Minister be given the mandate to
monitor the effects of S-2 on the withholding and withdrawal of treatment.
APPENDIX
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