The man, 83, died in hospital Oct. 3. He had been approved for assisted suicide in July given his history of health problems, but the ruling was challenged by his wife on the grounds that his suffering was more mental than physical.
On Oct. 2, a panel of three judges on the Nova Scotia Court of Appeal ruled that not only does she not have the right to stop her husband of 48 years from eventually killing himself with the help of a doctor, but they added judges shouldn’t get involved in such cases.
Nova Scotia Justice Cindy Bourgeois, who wrote the decision on behalf of the panel, said decisions about who is eligible for medical assistance in dying should be left up to “health-care assessors” and not judges as long as health authorities follow the rules as set out within federal law.
“A supervisory or reviewing role for judges was considered and rejected by Parliament,” Bourgeois said in the ruling.
The decision is being slammed as a failure of the courts to protect the vulnerable from using MAiD to kill themselves.
At the heart of the case was the belief of the wife that her husband was not as sick as he believed and that medical reviews of his health status were at odds. She claims he should not have qualified for assisted suicide because he did not suffer from a life-threatening illness and he isn’t mentally competent to request MAiD. She said a number of doctors have backed this up.
Her husband has argued, through his lawyers, he is indeed ill with advanced chronic obstructive pulmonary disease and is of sound mind to make his own choice.
The women’s legal bills were being paid for by the Euthanasia Prevention Coalition. Its executive director, Alex Schadenberg, said he was not surprised the assisted suicide was carried out quickly after the court ruling.
He said the wife was only able to confirm her husband’s death by calling funeral homes in Nova Scotia. “She had to make her own phone calls to find out. Nobody told her,” Schadenberg said.
“When the decision came down on Friday, we were discussing what to do, whether to seek an injunction at the Supreme Court,” Schadenberg said. “But with his death now, I don’t know what is going to happen.”
Schadenberg said the court ruling means there is no way for anyone to challenge an assessment that gives the green light for an assisted suicide when there are conflicting medical opinions, as occurred in this case.
“When Canada’s Parliament passed Bill C-14 legalizing euthanasia the legislation required two doctors or nurse practitioners to agree that a person qualified for death by lethal injection,” Schadenberg said. That means “as long as two euthanasia assessments approve death, it doesn’t matter if several euthanasia assessments determine that a person doesn’t qualify under the law.”
The EPC and lawyers for the woman say this is “doctor shopping.”
The case, which has been argued in court proceedings since August, shows the dangers of the system, one of her lawyers said after a previous court ruling went against her on Sept. 4.
“The notion that individuals should be free to see 10 doctors who find they lack capacity, but then find two more that say they don’t to justify an assisted death is troubling and renders the safeguards and protections of the criminal law completely meaningless,” said lawyer Hugh Scher at the time. Scher reiterated that point after the Oct. 2 ruling.
“Doctor shopping is a serious concern that must be addressed. Court or tribunal oversight are essential in those rare cases where there are multiple conflicting medical reports over the core issue of capacity which is an essential condition of eligibility for MAiD.”