For the first time since assisted death was legalized in Canada in 2016, a judge has ordered that a request for medical help in dying be put on hold.
A Nova Scotia man wants to die because of a lung disease that he says has left him near the end of his life. Katherine, his wife of 48 years, is fighting that wish in the courts, calling her husband a hypochondriac who is not mentally capable of making the decision to end his life.
“He’s being pushed by his own mind to want to end his life. It’s a suicidal frame of mind,” she told CTV News in an interview near her home in Bridgewater, N.S.
CTV News is not naming the man or publishing Katherine’s surname, as a judge has ruled that the man’s identity should remain private pending an upcoming court hearing. The man declined an interview request from CTV News for this story.
The 83-year-old man has chronic obstructive pulmonary disease, which he was diagnosed with in 2003. He says he was given three years to live at that time. He also suffered a series of small strokes decades ago and was diagnosed with dementia in 2019.
Katherine says her husband first applied for medically-assisted death in April and was turned down, because some assessors felt he did not have the mental capacity to make that decision or that his death was not imminent.
While assisted dying has been legal in Canada for four years, there are strict criteria that have to be followed, including the person requesting it being of sound mind.
Katherine says the initial rejection came as a relief to her. Although she knew her husband was talking about ending his life, she felt he was operating under anxiety and delusions.
In July a new and different group of assessors approved the man for assisted death – setting the date for August 3, which prompted Katherine to contact a lawyer and get an injunction to put her husband’s death on hold.
The issue is now before the Nova Scotia Court of Appeal. A judge set aside the injunction last week, clearing the way for the man to end his life. Katherine is appealing this decision, arguing that more psychiatric tests should be ordered before her husband is found to have a sound enough mind to request assisted death.
“There’s real question, based on the very conflicting medical evidence within a matter of weeks from different practitioners … as to whether or not this person truly does meet the criteria or not,” Hugh Scher, Katherine’s lawyer, told CTV News from his office in Toronto.
Seven different medical assessors offered differing opinions about the man’s mental and physical state between April and July. Some found him suffering from depression and cognitive decline. Others deemed him as mentally competent. The lack of consensus troubles Katherine and her lawyer.
“I think to put somebody effectively to death … when we don’t have that answer, and where the request can be made truly based on a delusion, is simply a complete violation of the rule of law in this country. I don’t think it’s what the Supreme Court of Canada or Parliament had in mind when it decriminalized euthanasia and ultimately required that safeguards be put in place to protect those who are vulnerable from the risks of serious abuse.”
The next hearing in the precedent-setting case takes place Aug. 26. Scher said he could see appeals eventually reaching the Supreme Court if neither side gives in.
“What I think this court case speaks to fundamentally is the need to have a dispute resolution process through the courts in those rare cases where there is a fundamental disagreement or conflict between multiple experts that needs to be resolved, because they’re coming to completely alternate positions about the question of whether the person meets the criteria or not,” he said.
A similar situation arose last year in British Columbia, when Alan Nichols was found fit to request medically-assisted death despite his family arguing that he was mentally ill and unable to properly give consent.
Helen Long, the chief executive officer of Dying With Dignity, told CTV News that while she understands Katherine’s concern for her husband, partners and other relatives do not have final say in end-of-life decisions.
“We hear from families all the time how difficult these decisions are, how difficult it is to speak to their loved ones about them,” she said.
“At the end of the day, this is an individual’s choice – it’s not a group decision.”
Trudo Lemmens, an ethicist with the University of Toronto’s faculty of law, says the case raises questions about safeguards in the current MAID law.
Lemmens says a person who “may suffer from depression, and who has an application for MAID refused for that reason by medical experts, can shop around and find more lenient physicians to get MAID.”
“It would be an occasion for the Supreme Court to tighten the criteria and to confirm that there should be appropriate limits on the practice,” said Lemmens.
Meanwhile, the legal battle may have brought an end to the couple’s marriage, as the man has moved out of their home and refuses to speak to his wife.
“He’s been away from me now since July 31, and I don’t know where he is and he won’t talk to me on the phone,” Katherine said.
In addition to her husband, Katherine’s legal action names the Nova Scotia Health Authority and a nurse practitioner who treated her husband as defendants. The health authority told CTV News that it would not comment because the case remains before the courts.