Medical assistance in dying became legal last night, but in the absence of nation-wide rules, provinces and territories will be operating in a legislative grey zone.

“Because there’s this state of uncertainty, most physicians are a little bit cautious,” Dr. Robert Zimmerman, the chair of the Yukon Medical Council, said in an interview today.

The government was not able to pass Bill C-14, its response to the Supreme Court’s decision to legalize medical assistance in dying, before the Court’s June 6 deadline. This means it is now up to provinces and territories to figure out for themselves, how assisted death will work and for whom it will be available.

“The Yukon has a system that is ready to go, it’s functional, but the ground rules are shifting a bit with legislative uncertainty.”

The Supreme Court decided that prohibiting medical assistance in dying violates the Charter rights of “competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition.”

Specifically, it infringes on their s. 7 rights to life, liberty and security of the person.

Without a national framework for medical assistance in dying, the provinces and territories have developed their own guidelines for how to handle such requests in their respective jurisdictions.

“Provinces and organizations have worked hard to try and have a harmonious and consistent approach,” said Zimmerman, who noted there are some differences from region to region.

For one, patients in the Yukon no longer need a court order to access assisted dying, while in Ontario, an application to the court is encouraged.

Another is the definition of “competent adult.”

The Yukon Medical Council says that, “Until laws are enacted clarifying the age requirements for physician-assisted dying, it remains uncertain whether assisted death could legally be available to anyone under the age of majority in Yukon.”

The medical council based its guidelines for medical assistance in dying on Alberta’s, and on the Supreme Court’s ruling.

Here are some of the 18 recommendations the council is making to physicians:

In line with the Supreme Court’s decision, the patient must have an incurable, chronic medical condition that is causing intolerable suffering.

The patient must request assistance in dying herself. No one can do it on her behalf.

The patient must make the request in writing – if she can’t write it, then someone can write it for her – and it must be signed by two witnesses.

The patient must be of sound mind in order to access assistance in dying. If at any time the patient loses the ability to understand what is happening, and the consequences of her decision, the request will be cancelled.

If the physician believes a psychological disorder or depression is affecting the patient’s capacity to make a sound decision, the patient must be referred for a psychiatric or psychological assessment. To be sure, depression or mental illness can constitute a “grievous and irremediable” medical condition.

In these cases, however, the council asks for an additional assessment “to ensure the illness itself does not impair the patient’s capacity to make an informed decision.” 

After deciding to go ahead with assisted death, the Yukon Medical Council suggests that the patient reflect for 14 days. Bill C-14 proposes 10 days of reflection.

A physician can refuse to assist a patient in dying, if doing so goes against her conscience.

In the Yukon, a medically assisted death must be reported to the coroner.

A key difference between the Yukon’s guidelines and the federal government’s Bill C-14 is that the latter limits eligibility to patients “in an advanced state of irreversible decline,” and for whom death has become “reasonably foreseeable.”

This last stipulation has been criticized by Peter Hogg, constitutional expert and former dean of Osgoode Hall law school.

Hogg told a Senate committee yesterday that it oversteps the Supreme Court’s ruling because it excludes people whose “grievous and irremediable” medical conditions are not terminal.

As it stands in the Yukon, a patient does not need to be dying from his or her condition, or near death, to ask for assistance in dying.

“Because things are in flux, each case will be handled individually,” said Zimmerman.

He added that, to his knowledge, patients will not have to pay for the drugs used to assist them in dying.

Those drugs will be dispensed through the pharmacy at the Whitehorse General Hospital, and given to physicians.

Patients will not be allowed to buy the drugs themselves.

Zimmerman said it is rare for a patient to seek medical assistance in dying in the Yukon.

“To date, there hasn’t been anyone initiate an application, to my knowledge, but they don’t initiate it through me. I am quite sure there hasn’t been any case that has been attempted.”

The Yukon Medical Council urges physicians to consult with the Canadian Medical Protective Association, a not-for-profit that gives advice to doctors when legal issues emerge in medicine, before assisting in a patient’s death, and until legislation is passed.