In a Nutshell: An attempted assault on access to MAiD

Jocelyn Downie summarizes Y v. Swinemar, the recent decision in the Nova Scotia Court of Appeal that rejected third parties interfering with access to medical assistance in dying.

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A recent Nova Scotia Court of Appeal decision, Y v Swinemar, raised two key issues that threatened access to medical assistance in dying (MAiD) in Canada:

  1. Do the courts have a role in reviewing MAiD eligibility assessments?
  2. After a person is found eligible for MAiD, can third parties (e.g., family members) go to court to challenge that finding?

The Court answered both questions with a unanimous and resounding “No,” thereby adding judicial support to the legislative and policy mechanisms established to meet what the judge in the lower court characterized as the “constitutional right to the availability of MAiD.”

Mr. Sorenson, an 83-year-old man with multiple medical conditions, requested MAiD. There were some conflicting views expressed by various health care professionals about whether he met the eligibility criteria. However, two independent clinicians determined that he met the eligibility criteria and so, consistent with the federal MAiD legislation and the Nova Scotia Health Authority MAiD policy, MAiD was scheduled.

His wife, Mrs. Sorensen, then applied to the Supreme Court of Nova Scotia for a declaration that Mr. Sorenson did not meet the eligibility criteria for MAiD, and for a permanent injunction blocking his access to MAiD. Anticipating the standard delay between filing her application and the actual hearing of the full case in court, she sought an interlocutory injunction – an injunction that would temporarily block Mr. Sorenson’s access to MAiD until the court hearing on the request for the declaration and permanent injunction.

Photo Credit: Indrid__Cold. Image Description: The Court of Appeal in Halifax Law Courts.

After multiple court proceedings (interim injunction, interlocutory injunction, stay, request for review, and appeal), the Nova Scotia Court of Appeal released its unanimous decision on October 2. They concluded that courts have no role in reviewing MAiD eligibility assessments. The genesis of this position is found in Carter v. Canada, when the Supreme Court of Canada situated eligibility assessments squarely and solely within the confines of the doctor-patient relationship. Further, when debating Bill C-14 (Canada’s first version of its MAiD law) the federal Parliament considered and rejected giving courts a role in reviewing MAiD eligibility assessments. In 2017, Justice Perell of the Ontario Superior Court of Justice also considered and rejected there being such a role for the courts. And, at the provincial policy level, the Nova Scotia Health Authority MAiD policy anticipates that there will sometimes be disagreements about eligibility, yet does not invoke any role for the courts in such cases.

The Court also concluded that it is “unrealistic to suggest that even without a pandemic, a challenge to Mr. Sorenson’s MAiD eligibility could be heard in a manner that respected his s.7 right to life, liberty and security of the person.” Generalizing, the Court found that “the courts simply do not have the institutional capacity to review challenges to eligibility assessments in a manner that respects the urgency inherent in the MAiD context.”

After the Court of Appeal decision was released, Mrs. Sorenson’s lawyer told the media that his client instructed him to seek leave to appeal to the Supreme Court of Canada. Therefore, the case will not be truly over until either the deadline for seeking leave to appeal (December 1, 2020) passes without leave being sought, leave is denied, or the Supreme Court of Canada hears and decides on the appeal.

Mr. Sorenson had MAiD on October 3, 2020. In a final affront to his rights and wishes, Mr. Sorenson’s obituary, clearly neither written nor approved by him, included the following: “In lieu of flowers, donations may be made to the Euthanasia Prevention Coalition” (an anti-MAiD group that helped fund the litigation trying to prevent his access to MAiD).

The litigation appeared to have three main objectives. The first objective was to prevent Mr. Sorenson specifically from accessing MAiD, either by getting a permanent injunction against it, or by delaying his ability to access it using court proceedings that would take months or years until he lost decision-making capacity and therefore eligibility for MAiD. The second objective was to re-litigate matters that “have been considered and decided by both the SCC and Parliament” – such as the decision to not give courts a role in reviewing eligibility assessments. The third objective was to establish a more general precedent that a third party can ask the court to intervene in the clinician-patient relationship and delay or prevent access to MAiD.

This litigation presented potential threats to MAiD access. How many people can afford a lawyer to go to court to defend their right to MAiD? How many people with intolerable suffering as required for MAiD eligibility, have the energy to go to court to defend their right to MAiD? How many people have MAiD assessors and providers willing to stand up for them if threatened with civil litigation by third parties? Finally, will physicians’ and nurses’ insurers and health authorities support clinicians who seek to provide MAiD in the face of the possibility of legal action?

Hopefully, the Nova Scotia Court of Appeal’s authoritative, comprehensive, and rigorous argument for their Y v Swinemar decision will dissuade third-parties from attempting to use the courts to interfere with Canadians’ access to MAiD. Although the litigation made Mr. Sorenson endure two additional months of intolerable suffering, It can only be hoped that knowing that he catalyzed this important court decision gave him some comfort in his final days.

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Jocelyn Downie is the James S. Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University. @jgdownie