The Carter Decision — What’s Next?

Our Estate Alert of February 6, 2015 discussed the Supreme Court of Canada ["SCC"]'s decision of Carter v. Canada (Attorney General)1 that was released that day. Now that we have had some time to consider the decision, we are asking "what's next?"

Several questions arise following this decision:

Criteria for physician-assisted death

What will be the criteria for the exercise of physician-assisted death? The trial judge offered one set of criteria in her judgment:

"a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult person who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person."2

The SCC did not provide further insight on the eligibility requirements, nor did they offer any practical guidance as to what would constitute a "carefully designed and monitored system of safeguards."3 Noticeably absent is the need for the illness, disease or disability to be terminal to the person for physician-assisted dying to be granted. Should the terminal status of a patient affect the decision of the physician? Are the current methods used by physicians to assess capacity adequate now that assisted dying is an alternative? What degree will a patient's level of suffering have to reach before it is considered intolerable? Who will decide the process for the granting and administration of the practice? Will there be a mechanism in place to review and regulate physicians? Most importantly, what happens if something goes wrong?

Life Insurance

The effect of this decision on life insurance remains to be seen. Life insurance policies typically contain a "suicide clause" that voids all death benefits if the insured commits suicide within two years of taking out a policy. However, a spokesperson for an insurance industry...