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Report No. 196

Ontario Law Reform Commission:

The Ontario Law Reform Commission issued a Study Paper on 'Assisted Suicide, Euthanasia and Foregoing Treatment' in 1996 (running into 270 pages).

It deals, in various chapters, with the definition of death (Ch. 2), Common Law (Ch. 3), Provincial legislation and Professional regulations (Ch. 4), Criminal Law (Ch. 5), Enforcing the Law: Criminal Liability, inquests and professional discipline (Ch. 6); Constitutional Rights (Ch. 7), Current Legislation and Judicial Approaches to Euthanasia and Assisted Suicide: (England and USA) (Ch. 8); Euthanasia in the Netherlands (Ch. 9); Australia (Ch. 10), Health Care Consent Act: Applying guiding principles (Ch. 11); Criminal Law; The Question of Reform (Ch. 12).

The Recommendations are contained in Chapter 13. Some of them proposed accepting assisted suicide or Euthanasia, in certain situations. They are eleven in number and read as follows:

"(1) An exemption should be added to section 241(b) of the Criminal Code (i.e. Canada) to permit physicians (and the health care professionals acting under the direction of a physician) to assist in another's individual suicide. The person must be either terminally ill or suffering from a chronic, irreversible illness and experiencing pain and/or suffering that he or she finds unbearable and that cannot be alleviated or treated by means acceptable to the patient. Assistance in suicide only be provided under clearly defined limits and safeguards, including a system of advance authorization. Experience with assisted suicide should be reviewed and assessed annually.

(2) Euthanasia should remain a criminal offence.

(3) The Criminal Code should be amended to provide for a less severe penalty in cases where an offender who took life of another individual acted out of compassion or mercy, either through the creation of a separate offence or a third category of murder, for which there would be a maximum penalty of life imprisonment but no minimum sentence, as with manslaughter. General rules for parole eligibility would apply. Instances in which motive could be taken into account in sentencing must be narrowly defined.

(4) The question of whether policy to govern the laying of criminal charges can be developed that would give some clearer indication of how the general factors used in charging decisions apply to circumstances in which investigation reveals an individual, motivated by compassion, participated in causing a death, should be considered by government. Reiterating existing law and restating the conundrum that, while society has a responsibility to protect life, life need not be preserved or continued at all cost, are important reminders but are not a clarification.

(5) The Criminal Code should be amended to confirm the legality of providing necessary treatment for the purpose of eliminating or alleviating suffering, even if that treatment may shorten life. Any such amendment would only codify the law as it already exists (Rodrigues vs. B.CAG (1993)(3) SCR 519 at 607). However, concern over the legality of such measures still seems to prevail to the point where it interferes with good medical care, as evidenced particularly by inadequate management of patient's pain. If a clear statement that the practice is legal would ameliorate the substandard care many patients currently receive, then it would be advisable to incorporate one into the law.

(6) The office of the Public Guardian & Trustee should clarify its policy on circumstances in which it considers it has jurisdiction to consent or refuse consent to 'Do Not Resuscitate Orders (DNR), bearing in mind that a plan of treatment can legitimately provide for 'the withdrawing or withdrawal of treatment in the light of the person's current health condition'. (Health Care Consent Act 1996, section 2(1) being Schedule to the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996 C. 2). This may require making decisions in advance of an immediate need. Such a policy should be clearly communicated to physicians and other health-care professionals.

(7) Education and training about pain management and control should be expanded and improved for health care professionals. This should include a clear statement that properly managing the patient's pain (subject to the limits of what can currently be achieved), is a duty owed to the patient and one of the standards of practice of the profession. Professional guidelines should be amended to reflect this position as well.

(8) The relevant professional associations should be encouraged in their development of clinical practice guidelines in this area, in particular relative to the withholding and withdrawal of lifesustaining treatment and treatment at the end of life.

(9) The government, together with the colleges and professional associations concerned and other affected groups, need to develop policies with respect to questions of futile treatment. The development of clinical practice guidelines by a professional or specialized body within the profession is important, but these issues have a societal dimensions as well. Public input should be sought in this process.

(10) Palliative care should be supported and expanded as an important part of a comprehensive health care system.

(11) It is essential that needed health and social services are adequately supported by government. A broad based approach should be adopted in identifying determinants of health. Regardless of whether assisted suicide is legalized in limited circumstances or not, individuals must not be put in a position, where they may be taking end-of-life treatment decision based on or because of inadequate health care and social support."

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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