THE SENATE OF CANADA 

An Act to amend the Criminal Code
(protection of health care providers)

First reading, November 27, 1996
The Honourable Senator Carstairs

Summary

This enactment clarifies the law by protecting from criminal liability hearth care providers who upon request withhold or withdraw life-sustaining medical treatment in certain circumstances. The request must come from the person from whom treatment is being withheld or withdrawn unless that person is incompetent, in which case the request may be made by a proxy, legal representative, spouse, companion or relative.

The enactment also protects health care providers who administer pain relieving medication to a person in order to alleviate or remove that person's physical pain, notwithstanding that the medication is provided in dosages that may shorten the person's life.

2nd Session, 35^th Parliament.
45 Elizabeth II, 1996

Preamble

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 unanimouslv 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;

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

1. The Criminal Code is amended by adding the following after section 45:

(No offence committed) 45.1 (1) No health care provider is guilty of an offence under this

Act by reason only that

(a) 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treatment from a person who has made a request, within the meaning of subsection (2), that the treatment be withheld or withdrawn; or

(b) the health care provider administers medication in dosages that might shorten the life of a person with the intention of alleviating or removing the physical pain of that person.

(Form of request) (2) A request has been made

(a) when a person has made a valid written directive under the laws of a province 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

(i) the person has made a request in writing that the life-sustaining medical treatment be withheld or withdrawn, or

(ii) the person has, immediately before or while life-sustaining medical treatment is in place, made in the presence of at least one witness a request by words or signs that the treatment be withheld or withdrawn.

(Informed Request)

(3) For the purposes of paragraph. (2}(b), the request must be made by a competent person capable of malting a free and informed health care decision who

(a) is suffering from a life-threatening condition and has knowledge of and understands the condition and its prognosis, the alternative courses of action and the foreseeable consequences of the decision, or

(b) anticipates a life-threatening condition, the alternative courses of action and the foreseeable consequences of the decision

(Substitute Request) (4) Where a person is not competent and did not while competent make a request in writing as described in subparagraph 2(b)(i), the request must, for the purposes of paragraph 2(b), be made in writing

(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 the legal representative 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 having, in respect of the person who is not competent, the knowledge and understanding described in paragraph 3(a).

(No new obligations imposed) (5) Nothing in, this section imposes any legal duty to provide medical treatment.

(Paramountcy) (ô) Where there is any inconsistency or conflict between this section and any other provision of this act, this section prevails to the extent of the inconsistency or conflict.

(Definitions) (7) In this section,

("competent")"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 25 health care decision to be made;

("free and informed health care decision") "free and informed health care decision" means a decision respecting the withholding and withdrawal of life-sustaining medical treatment, made voluntarily, without coercion, duress, fraud, mistake or misrepresentation;

("health care provider") "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") "life-sustaining medical treatment" means any medical or surgical procedure or intervention that uses mechanical or artificial means to sustain, restore or supplant a vital function in order to post-pone death including, without limiting the generality of the foregoing, artificial hydration and nutrition.