Court Ruling Protects Access to Medical Assistance in Dying
Earlier this summer, in August 2020, a wife who was philosophically opposed to medical assistance in dying (MAiD) began a court application to stop her husband from availing himself of this relatively new right, under the guise of inconsistent assessments of his capacity to do so.
What this meant was, that effectively, the wife was asking the court to review the validity of the assessments performed regarding her husband’s capacity to request MAiD. She asked for an injunction until her application could be decided. As you can probably imagine, if she lost, she would appeal.
In a nutshell, the current legislation states that a person’s eligibility is to be evaluated by two medical practitioners or nurse practitioners, in addition to several other safeguards.
The lower court ruled against her application; although initially an injunction was granted until the lower court could hear the application. After that hearing, the lower court declined to grant an injunction, thus allowing the husband to proceed. The wife asked the court of appeal to stay the lower court’s order until it heard her appeal; the court of appeal denied her request.
There were several issues decided by the court of appeal:
- Do courts have a role in reviewing medical assessments regarding eligibility for MAiD?
- Did the wife have standing to bring the application?
Justiciability
Justiciability is the question of whether a person has brought an issue to the court, which the court can decide. In this case, the court was careful in stating that it is not ruling on all aspects of jusiticiability on MAiD legislation because there certainly may be instances where the court does have a role. However, in this case, the Nova Scotia Court of Appeal cited an important Ontario case, A.B. v Canada (Attorney General), where the Ontario court decided that there was no role for judicial review when the legislation delegated that role to approved healthcare assessors. Further, the court found that “courts simply do not have the institutional capacity to review challenges to eligibility requirements in a manner that respects the urgency inherent in the MAiD context.”
Standing
Standing simply means, who has a right to bring an issue before the court. Various legislation in each province dictates who has standing to bring a court application. In Nova Scotia, the wife was found to lack “private interest” standing, meaning, she was not a person under any piece of legislation affecting this matter, who was afforded a right to bring the case to court. She had argued that she was her husband’s substitute decision-maker and as such, had a right; she also argued she had the right as his spouse.
The court noted that she did not frame her application as her husband’s substitute decision-maker. It is important to note that, a substitute decision-maker does not have the right to make a decision on someone’s behalf about a medically assisted death. Death is seen as a fundamental right to which only the person him or herself can consent.
The wife’s position as a spouse was probably entirely irrelevant. The court dismissed this line of argument with a brief paragraph, stating that her feelings about losing him do not give her standing to challenge the assessment that he fulfils the eligibility criteria.
Finally, since the wife did not raise a justiciable issue, she also necessarily lacked “public interest” standing. This is where a court will allow someone to bring a case on the basis of public interest.
The court also reviewed the wife’s appeal regarding the lower court’s refusal to issue an injunction preventing her husband from accessing medical assistance in dying. The court found no error with the lower court’s decision. At the end of the judgment, the court summarized as follows:
- The husband was eligible for MAiD in a manner consistent with the legislation;
- Preventing his access to MAiD once found eligible is a violation of his right to liberty;
- The wife did not raise a justiciable issue;
- The wife lacked standing in the lower court and in the court of appeal; and finally,
- If the husband loses his capacity to consent to medically assisted death in the interim by a loss of capacity, his right to medical self-determination will have been trampled on.
This case is a reminder that MAiD legislation is meant to provide Canadians with reasonable access to this fundamental right. Parliament did not intend for each disagreement to be litigated, thus delaying someone’s suffering or potentially losing capacity to consent to it. Once someone is found to fulfil the eligibility criteria by qualified health care practitioners, that decision will be safeguarded by the courts in the face of others’ opposition.
Thank you for reading.
ABOUT THE AUTHOR
Areta Lloyd practices estates, trusts and capacity litigation and maintains a niche in health law.
Phone: 416.927.0891 ext. 144
Email: alloyd@dicksonappell.com