Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code.  Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients' suicides by providing their services.   Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met:  patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.

The phrase "while appearing to be lucid" rings alarm bells off their walls.  The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale.  From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business.  There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.     

From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising - it is the first reading of a private member's bill in a criminal law matter in federal jurisdiction).  This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.

Have a great day, and enjoy every day you get,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.