First Judicial Authorization of Physician-Assisted Death in Canada: An Analysis
A Calgary woman recently ended her life with the help of two physicians, after being the first person in Canada to be granted judicial authorization for a physician-assisted death (“PAD”). The woman, known only as Ms. S due to a court-ordered publication ban to protect her privacy, successfully applied to the Court of Queen’s Bench of Alberta for an order that she qualified for the personal constitutional exemption from the Criminal Code prohibition on PAD (the “Exemption”) that the Supreme Court of Canada (“SCC”) granted on January 15, 2016. Ms. S’s application was heard by Madam Justice S.L. Martin and the decision was released on February 29, 2016 (the “Decision”).
As we previously reported here on our blog, the SCC ruled on January 15, 2016 that individuals who wish to avail themselves of the Exemption could apply to the superior court in their province or territory for special permission until June 6, 2016. The Exemption applies specifically to those individuals who meet the criteria from the SCC’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”), i.e. competent adults who (a) clearly consent to the termination of life; and (b) have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition and that cannot be alleviated by any treatment acceptable to the individual. As explained in the Decision, Ms. S’s application for an Exemption was the first of its kind in Alberta, and in Canada.
The Facts of the Application
At the time of the application, Ms. S was in the final stages of amyotrophic lateral sclerosis (“ALS”), and had been told she had, at most, six months to live. She was almost completely paralyzed and was unable to speak, but was mentally alert and could still communicate by typing or using a device that would speak from the text she produced. According to the Decision, Ms. S had lost the ability to pursue the independent life she so valued. She was in significant pain and required constant care and support. She could not swallow any liquids and water was pumped into her stomach trough a gastric tube. She had frequent muscle cramps, aching joints, and pains in her shoulder and neck, and had to be moved every two hours to prevent bedsores. In the two months before the application, she had been experiencing choking episodes several times per night.
Prior to being diagnosed with ALS in 2013, Ms. S was in good physical and mental health, and was very physically active. She had worked as a clinical psychologist for 38 years and enjoyed jogging, swimming, yoga, hiking, dancing and travelling. She had no children and the two remaining members of her family do not live in Canada. Her spouse, whom she lived with, was her constant companion and had become her main caregiver.
Through her application, Ms. S sought permission for the right to seek the assistance of two named physicians in British Columbia who would provide her with medication to induce death. In her own words, Ms. S stated:
I am not suffering from anxiety or depression or fear of death. I would like to pass away peacefully and am hoping to have physician-assisted death soon. I do not wish to have continued suffering and to die of this illness by choking. I feel that my time has come to go in peace.
Notice, Confidentiality and Evidence
At the outset of the Decision, Justice Martin clarified that she was not being asked to grant a constitutional exemption, as this had already been done by the majority of the SCC on January 16, 2016. Instead, her role was limited to applying or authorizing the existing Exemption and determining whether Ms. S met the articulated criteria for that Exemption. Justice Martin explained that this exercise involved an individual- and fact-specific inquiry, keeping in mind the legal framework and overall constitutional context.
Before engaging in the factual inquiry, Justice Martin canvassed issues relating to notice, confidentiality and evidence (all of which were issues regarding which the SCC had not provided any guidance). She noted that the superior courts of other jurisdictions had published protocols, including the Ontario Superior Court of Justice’s Practice Advisory – Application for Judicial Authorization of Physician Assisted Death (which we recent blogged about here) and the British Columbia Supreme Court’s Notice Regarding Applications for Exemption from the Criminal Code Prohibition Against Physician Assisted Death, that are intended as practice advisories or practice notes within their provinces on these specific issues and others. Justice Martin noted that these protocols have certain similarities, but each province has adopted slightly different rules and approaches. Overall, it was her opinion that some of the suggestions or requirements set out in these protocols are broader and more onerous that how she read the Carter requirements. Since Alberta does not yet have such a protocol, Justice Martin stated that in that province, the applications for judicial authorization of PAD should be based on what Carter says (and does not say), supplemented, as necessary, by general principles and any guidance thought appropriate from these two provincial protocols and Québec’s An Act Respecting End-of-life Care, CQLR c S-32.0001.
Applying this framework to Ms. S’s application, Justice Martin found that there was practical merit to providing notice to the Attorneys General of Canada, Alberta and British Columbia, as Ms. S had done. She felt that notice would give the Attorneys General the opportunity to make submissions in the public interest which could support a more complete consideration of the issues. Justice Martin found, however, that no notice was required to Ms. S’s family members who live outside Canada as she was satisfied that Ms. S had informed those close to her of her plans for a PAD, including her spouse and best friend who were with her when the application was made.
At the outset of the hearing, counsel for Ms. S asked that the proceedings be held in camera and asked for various forms of confidentiality orders, including sealing the court file, sealing the affidavits, a publication ban on Ms. S’s name, and the use of initials to protect the identities of Ms. S and the physicians and others involved in the matter. Justice Martin granted these requests, finding that the protection of Ms. S’s privacy, dignity and autonomy interests outweighed the benefit of an open courtroom in the circumstances of this case and necessitated the confidentiality orders. Furthermore, Justice Martin noted that the written judgment would achieve sufficient accountability, transparency and openness in the circumstances.
With respect to the evidence required on an application for judicial authorization of PAD, Justice Martin noted that the SCC did not prescribe or dictate what type or amount of evidence would satisfy the Carter criteria. She found that she was, therefore, entitled to take a flexible approach to the evidence on this kind of application. Ms. S provided evidence in the form of an affidavit, with the following items attached as exhibits: statements from her treating physician and the physician who planned to assist her death; medical records; statements from various other physicians from the Calgary ALS and Motor Neuron Disease Clinic; a letter from her best friend of 38 years; and a letter written by Ms. S to her counsel describing her life. Justice Martin noted that the evidentiary record in this case was not as extensive or in the form proposed by Ontario’s Practice Advisory or British Columbia’s Notice, but held that this did not render the record deficient.
The Decision
After examining the record, Justice Martin found that Ms. S had demonstrated, based on admissible, authentic and reliable evidence, that she satisfied all of the following Carter criteria and therefore qualified for the Exemption granted by the SCC:
