A British Columbia judge recently issued an interim injunction, blocking a B.C. physician from providing medically assisted death (MAiD) to a 53-year-old woman.
Her MAiD application stated she was seeking MAiD for akathisia, characterized by restlessness, terror, agitation, inability to sit still and burning skin sensations. The woman’s own Alberta health-care providers concluded that she did not have an irremediable condition (a legislative requirement for MAiD) and that MAiD was not appropriate, but B.C. physicians approved her for MAiD via videoconferencing.
Supporters of broad access to MAiD denounced the litigation as a manipulative “anti-choice” tactic aimed at restricting individual rights. They argue that courts have no role in what they call “medical decision-making.” As a result of the court’s intervention, the woman involved is still alive.
We argue here, as two legal scholars and a medical practitioner involved in MAiD policy and litigation, that judicial oversight over MAiD practice is essential.
Table of Contents
Extraordinary powers
MAiD is not like any medical treatment. Deciding whether a MAiD death is appropriate is not a standard exercise of medical judgment, whereby a physician determines what treatment should be offered based on a professional assessment of often complex symptoms. Instead, doctors are tasked with applying Criminal Code criteria, which exempt MAiD from the crimes of homicide and aiding suicide. Unlike standard “medical treatments,” the intended outcome is to end a life.
Our MAiD law delegates extraordinary power to health-care practitioners, with only limited, post-factum review of cases by provincial review bodies such as the Ontario Office of the Chief Coroner and the Québec Commission on End-of-Life Care, and general reporting obligations to Health Canada. But this review and reporting only takes place after patients are already dead.
Judges play a crucial role in ensuring that those exercising statutory power, as with MAiD, use it responsibly, and that they follow the rules. Advocates for broad access to MAiD seem primarily concerned that family members may deny loved ones access to death. We and others are worried that people may be pressured into accessing MAiD due to caregiver burnout or financial concerns or interests, or in despair. There is currently no real oversight to prevent this.
MAiD proponents portray MAiD as primarily a question of autonomy. But this strategy is misleading and a sleight-of-hand. People live in social contexts, connected to families and other communities that have a meaningful impact on their lives and well-being.
Many Canadians struggle to keep loved ones safe from suicide. As a society, we value their commitment and love, rather than labelling them as heartless “anti-choice activists.” Suicide prevention remains an important societal obligation, to which family members make vital contributions. Suicide-prevention guidelines of leading mental health centres such as the Centre for Addiction and Mental Health in Toronto emphasize how family members are key in identifying suicide risks of loved ones and in helping to prevent suicide. And contrary to what is often claimed, suicide and MAiD are not neatly distinguishable, particularly when there are mental health issues..
Judicial oversight
When family members or others have reason to believe doctors exceeded their authority or were clearly unreasonable, the court is the appropriate arbiter. Much as some supporters of broad MAiD policies may want it, the law does not give doctors free rein to end patients’ lives based on their own judgment; they are required to meet the criteria set out by the Criminal Code. Offering MAiD outside of those criteria is a crime, albeit a crime that has been largely unenforceable in Canada because of the lack of transparency about MAiD practice, the vague nature of the access criteria and safeguards, and the stark lack of meaningful oversight.
In Canada we rely on MAiD providers to police themselves and to self-report whether they have complied with the Criminal Code criteria. Ending a life is final, with no room for second thought or further evaluation. Judicial oversight before death occurs acts as a crucial safeguard, not a hindrance. Doctors who respect the law should have nothing to fear from judicial oversight.
Clearly, Justice Simon Coval in the Vancouver case had serious concerns regarding Dr. Ellen Wiebe and Dr. Elizabeth Whynot’s MAiD assessments, which would have resulted in the woman’s death had the family not been able to obtain legal support to appeal to the court. Unlike in two earlier cases, the judge did not shield the names of the doctors from public view and stated that in the pressing circumstances of the case, judicial review of both the approval process and the approval itself could reasonably be considered.
We should use this tragic situation to critically examine the frailties of our existing law. The requirement of two independent practitioners assessing MAiD eligibility was intended to be a safeguard against wrongful death. It becomes meaningless if patients can shop around for MAiD approvals after being turned down, in some cases repeatedly, and still get approved for MAiD. In the current B.C. case, the patient was not deemed to qualify for MAiD in her home province by her treating physicians, but approved for MAiD by out-of-province doctors apparently without in-person meeting and without review of their full medical history. Where one MAiD assessor effectively selects the other, as apparently in this case, the second assessor can hardly be considered independent.
Michel Bureau, head of the Québec commission on end-of-life care, has already raised these concerns about MAiD practice last year. While proponents of expansion argue that patients have no choice but to look around or “shop” for assessors since there are insufficient health care providers willing to be involved, current statistics show that it takes in Ontario on average only 2.2 days to connect to a MAiD practitioner, which is faster than access to virtually any health-care service outside of emergency care.
And even when it comes to emergency care, lack of quality emergency care appears to have driven at least one disabled Québecer to request MAiD.
Litigation and MAiD
Finally, advocates suggest that litigation isn’t the way to address these issues. Yet it was litigation that got us here, and an inadequate legislative response to litigation that has left us with a largely unregulated MAiD regime that is ending the lives of thousands of Canadians every year. It is precisely the role of courts to rein in potential abuses of power, especially where legislators appear to have abdicated their responsibility to do so.
The courts have long served as the last stop for upholding the rule of law and arbitrating alleged abuses by those with power. And make no mistake, medical practitioners have enormous influence over individuals whose suffering leaves them vulnerable to subtle forms of coercion and influence.
We strongly support the need for families to have recourse to the courts where they have reason to believe doctors have taken shortcuts or not followed the rules. Parliament has left glaring gaps in oversight in a MAiD regime that has become a cautionary tale of how not to proceed. Courts can play a role in filling the gap.
Ramona Coelho co-authored this story. She is a family physician and Senior Fellow of Domestic and Health Policy at the Macdonald-Laurier Institute, and a member of the Ontario Chief Coroner’s Office Medical Assistance in Dying (MAiD) Death Review Committee.
Isabel Grant receives funding from Social Sciences and Humanities Research Council and the Canadian Foundation for Legal Research. She is the chair of the Strategic Litigation Committee for Inclusion Canada which is a nonprofit disability organization.
Trudo Lemmens is a member of the Ontario Chief Coroner’s Office MAID Death Review Committee. He has been an expert witness for the federal attorney general in cases related to the first MAID law. He was also a member of the Council of Canadian Academies Expert Panel on MAID (subcommittee on advance requests for MAID). He has been an advisor to the Vulnerable Person Standard. He has testified before various Parliamentary Committees on issues related to MAID.
