An Alberta judge has concerns about a 27-year-old woman's euthanasia application, but no standing on which to question it
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Canada’s adventure in legalized euthanasia has produced yet another confounding scenario. (If only it were just a scenario.) A 27-year-old Alberta woman, MV, wishes to obtain medical assistance in dying (MAID) due to symptoms apparently stemming from autism. Her father, WV, and mother, PS, very much wish for MV to stay alive. WV argues MV has been misdiagnosed with physical ailments that are really psychological problems — and therefore, under current law, not justifiable grounds on their own to receive MAID.
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WV had obtained an injunction preventing MV from receiving MAID. In a decision issued Monday, Judge Colin Feasby of the Alberta Court of King’s Bench quashed that injunction — though he stayed his ruling for 30 days to allow further appeal.
There had better be further appeal. This is an unholy mess.
MV’s medical record wasn’t before the court, but Feasby did note a specialist’s report to MV’s family physician finding nothing resembling an intolerable or terminal illness. There was “a propensity for tripping and falling,” “numbness and tingling in her hands and feet,” “neck pain,” and “difficulty going up stairs for the last five years.”
That’s concerning enough on its own.
WV alleges misconduct on the part of Alberta Health Services (AHS) and the “MAID Navigator” assigned to MV’s case. MV’s first application for MAID was denied on grounds the second of two doctors consulted refused to sign off. She had the same problem on her second application. She and her navigator solved the problem by going back to the supportive doctor from the first application. (This is known in the business as “doctor shopping.”)
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This “tie-breaker” policy “is not found in the AHS MAID policy and instead seems to be an informal rule or practice followed by AHS MAID navigators,” Feasby writes, and he seems pretty sympathetic to the notion something sketchy is going on.
The AHS policy states that a doctor assessing a patient for MAID eligibility must be “independent,” he notes, meaning they are not “connected to … the patient making the request.”
“Allowing a MAiD assessor who had previously, to the knowledge of both MV and AHS, formed an opinion on MV’s eligibility for MAiD to act as a tie-breaker may plausibly be argued to be negligent or wrongful as it is arguably contrary to the independence provisions of the AHS MAiD Policy and the Criminal Code,” Feasby writes, tantalizingly. “At this stage he has raised serious issues to be tried.”
Alas, Feasby concludes, they’re not his issues to try. “Parliament’s intention (was) that physicians and nurse practitioners were exclusively responsible for deciding whether the Criminal Code’s criteria (have) been met,” he writes, citing precedent from 2017. The judge in that case “also concluded that the court could not pre-empt the medical practitioners and make a decision for them. In his words, ‘(this) court is a legal practitioner not a medical practitioner’.”
“The only accountability mechanisms to ensure that MAiD administrative processes are being adhered to are criminal prosecutions, wrongful death suits, and complaints to professional governing bodies,” Feasby continues. “While these accountability mechanisms are important, they can take many years to be litigated to completion.”
At least one of those accountability mechanisms would require a euthanized corpse to get underway. Not great.
In the end, not being in any position to judge medical matters, Feasby concludes he must balance the harms being proposed by each side.
“(MV’s parents) have devoted their lives to raising MV from birth and have continued to support her since she has come of age,” Feasby writes. “They will understandably be devastated by her death. … The loss is immeasurable.”
Feasby concludes the harm to MV in upholding the injunction, however, would be greater.
It “goes to the core of her being,” he writes. “(It) would deny MV the right to choose between living or dying with dignity. Further, an injunction would put MV in a position where she would be forced to choose between living a life she has decided is intolerable and ending her life without medical assistance.”
Except this “right” Feasby mentions — “to choose … dying with dignity” — has only been enshrined in Canada under very specific criteria. The judge agrees those criteria may not have been met. But he quite rightly considers himself ineligible to rule on that, since he doesn’t have anything like the evidence he would need before him.
“The Court has no expertise and no place in reviewing MAiD assessments in some sort of ad hoc system of pre-authorization,” Feasby writes, and that makes good sense.
The question is, can we trust that anyone else is keeping close track of those assessments?
Remember: This is all happening before we legalize MAID solely for mental illness.
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