Bill S-2

2nd Session, 36th Parliament,

48 Elizabeth II, 1999

senate of canada

BILL S-2

An Act to facilitate the making of legitimate medical decisions regarding life-sustaining treatments and the controlling of pain

WHEREAS the Special Senate Committee on Euthanasia and Assisted Suicide, appointed on February 23, 1994, addressed in its proceedings the medical practices of the withholding and withdrawal of life-sustaining treatment and the provision of treatment to alleviate suffering that might result in the shortening of life;

AND WHEREAS, in its report entitled Of Life and Death, dated June 6, 1995, the Committee recognized the existence of uncertainty within the medical profession and public of Canada regarding the legal consequences of these medical practices;

AND WHEREAS the Committee unanimously recommended that the Criminal Code be amended to allow health care providers to carry out these medical practices in certain cases without the fear of incurring criminal liability in order to ensure that the wishes of patients are honoured and respected;

AND WHEREAS the Committee unanimously recommended that the department of Government responsible for the protection and promotion of the health of Canadians, in cooperation with the provincial authorities and associations of health care professionals, establish guidelines regarding these medical practices;

AND WHEREAS the Committee unanimously recommended increased public education and improved training of health care professionals in respect of these medical practices;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. This Act may be cited as the Medical Decisions Facilitation Act.

2. No health care provider is guilty of an offence under the Criminal Code by reason only that the health care provider, for the purpose of alleviating the physical pain of a person but not to cause death, administers medication to that person in dosages that might shorten the life of the person.

3. (1) No health care provider is guilty of an offence under the Criminal Code by reason only that the health care provider withholds or withdraws life-sustaining medical treatment from a person who has made a request within the meaning of subsection (2) that the treatment be withheld or withdrawn.

(2) A request has been made for the purposes of this section

(a) when the person has, under the laws of a province, made a valid written directive that would in the relevant circumstances direct that life-sustaining medical treatment be withheld or withdrawn in the case of that person, or

(b) if there is no such valid written directive, when the person has, while competent, made in the presence of at least one witness who is not a health care provider a free and informed request, in writing or by words or signs, that the treatment be withheld or withdrawn.

(3) Where a person who is not competent and did not while competent make a request as described in subsection (2), the request may be made

(a) by a proxy appointed under the laws of a province to make health care decisions on the person’s behalf,

(b) if no proxy has been appointed, by a legal representative having the authority to make health care decisions on behalf of the person, or

(c) if there is no proxy and no legal representative, by the spouse, companion or relative who is most intimately associated with the person.

4. The definitions in this section apply in this Act.

“competent”, in respect of a person, means a person of sound mind who

(a) is capable of understanding the nature and consequences of the health care decision to be made, and

(b) is capable of communicating the health care decision to be made.

“free and informed request” ” means a request respecting the withholding and withdrawal of life–sustaining medical treatment, made voluntarily, without coercion, duress, fraud, mistake or misrepresentation and with a knowledge and an understanding of the condition, its prognosis, the alternative courses of action and the foreseeable consequences of the request.

“health care provider” means

(a) a person duly qualified under the laws of a province to practice medicine who has the responsibility for the medical treatment and care of the person for whom treatment is being considered, or

(b) any nurse or other person working, in the particular case, under the direction and instruction of a medical practitioner described in paragraph (a).

“life-sustaining medical treatment” means any medical or surgical procedure or intervention to sustain, restore or supplant a vital function in order to postpone death and, for the avoidance of doubt, includes artificial hydration and nutrition.

5. Nothing in this Act imposes any legal duty to provide medical treatment.

6. For the purposes of the Department of Health Act, the mandate of the Minister of Health to promote and preserve the health of the people of Canada includes

(a) coordinating, with provincial authorities and associations of health care professionals, the establishment of national guidelines for the withholding and withdrawal of life-sustaining medical treatments, for the controlling of pain, and for palliative care,

(b) promoting and encouraging public education regarding the controlling of pain by medical means and increasing the training of health care professionals in controlling pain and in palliative care, and

(c) investigating, researching and monitoring the frequency with which, and the conditions under which, after the commencement of this Act, life-sustaining medical treatment is withheld or withdrawn.