Law Times

Page 12 April 4, 2016 • lAw Times www.lawtimesnews.com Decision will likely require opinions of two doctors, says lawyer Rules around assisted death still being hammered out BY YAMRI TADDESE Law Times A s Canadian federal and provincial governments contemplate new legis- lation for physician-assisted death, health lawyers disagree on whether patients' eligibility should be decided by a quasi- judicial body. According to Daphne Jarvis, a civil litigator specializing in health law at Borden Ladner Gervais LLP, the decision will likely be confined to the opinions of two independent physicians and a request by the patient. Jarvis, who gave a teleconfer- ence presentation hosted by the Medico-Legal Society of Toron- to on March 9, says involving a tribunal isn't necessarily the best option. "For all that it might give some comfort to the physicians, at the same time it can cause enormous upheaval. It's not as smooth as one might think," she says. Secondly, "what all of the ad- visory groups and the Supreme Court of Canada itself are em- phasizing is that it is a matter as between a physician, confirmed independently by a second phys- ician, and a capable individual," she says, adding the process is focused on ensuring dignity and the right to autonomy. "The physicians' role is apply- ing their best clinical judgment in the circumstances, and our case law is very clear that even if there was an error made in clinical judgment, that is not the basis for liability," Jarvis says. Jarvis adds that physicians should feel confident that as long as they're abiding by the guide- lines that are provided, particu- larly through the colleges, the chances that a family member of a dead patient could come and later challenge those decisions is "extremely remote." "If such a family member were to approach a lawyer and say, 'I'm really upset about what happened and I want to sue,' they'd probably be advised that it would not be a very worth- while exercise," she says. After the Supreme Court ren- dered its decision in Carter v. Canada (Attorney General) in February 2015, some observers said there would be more con- sistency in how decisions to al- low assisted death are made if a designated tribunal made those decisions. Mark Handelman, health and estate lawyer at Whaley Estate Litigation, is on the side of those who say a tribunal is the way to go. In addition to ensuring con- sistency in decision-making, the presence of a tribunal will also protect physicians from poten- tial lawsuits from family mem- bers who disagreed with the de- cision to allow assisted death for a patient, Handelman says. "The consistency is going to become particularly important because the words that we're going to be using to say some- body qualifies for assisted death are hugely subjective. What is irremediable suffering that is intolerable for the person in the circumstances?" he says. Just as lawyers and judges al- low precedents to guide them in making legal decisions, doctors could use previous conclusions to help them make their own, Handelman adds. "If I am the doctor making the decision, I'd like some guidance," he says. "And I don't think it's available in any other fashion adequately." The issue is more compli- cated when it comes to mental illness. It's unclear if, or how, the legislation will deal with patients who seek assisted death due to mental, as opposed to physical, suffering. Although she doesn't antici- pate a tribunal involvement, Jar- vis says there will be "a rather in- tent post hoc reporting process and study of incidences in a con- fidential, non-identifying man- ner so that there will be someone looking back at these deaths to ensure that people are generally conforming to the processes and eligibility requirements." It remains unclear, according to Jarvis, what appeal recourses would be left to patients who are denied access to physician- assisted death. "At the moment, it looks like the appeal mechan- ism will essentially be for them to seek assistance from another physician," she says. In its report on assisted dying, the Provincial-Territorial Ex- pert Advisory Group on Phys- ician-Assisted Dying in fact rec- ommended against establishing an appeal process to respond to situations where the attending physician, the reviewing phys- ician, or both, concluded the eli- gibility criteria have not been met. "We do not feel it necessary to set up an appeals process when the attending or reviewing phy- sician concludes that the eligibil- ity criteria (other than compe- tency) have not been met," wrote the group, which was chaired by Dr. Jennifer Gibson and medical journalist Maureen Taylor. Instead, the group recom- mended the attending physician who rejects a request for assisted death inform the patient of the reasons for that determination. "The patient should not be precluded from consulting an- other physician," the group wrote. "If the reviewing physician de- termines that the criteria (other than competency) have not been met, the reviewing physician shall inform the patient and attending physician of the reasons for that determination." LT FOCUS CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance— without exaggeration, we make life easier for you. The world's most popular website is visited over 3.5 billion times per day. Almost as accessible as McKellar. Untitled-2 1 2016-03-29 1:57 PM Mark Handelman says having a tribunal will protect physicians from lawsuits from relatives who disagreed with the decision to allow the assisted death of a patient.

• Cover