Nova Scotia woman fails to win stay as husband seeks medically assisted death

HALIFAX — A judge in Nova Scotia has rejected a woman’s second bid to stop her husband from receiving a medically assisted death.

The woman was seeking a stay of a lower court ruling that rejected her request for an injunction, having concluded the 83-year-old man with end-stage chronic obstructive pulmonary disease  — identified as Mr. X — was entitled to the procedure because he met the criteria under federal law.

Last month, lawyers for the 82-year-old woman — identified as Mrs. Y —  asked the Nova Scotia Court of Appeal to issue a stay before her appeal is heard, arguing the medical professionals who approved her husband’s request had conflicting opinions about whether his death was reasonably foreseeable.

Justice Elizabeth Van den Eynden issued a decision Friday saying the woman had failed to establish a stay was warranted because court records show that at least two qualified medical professionals determined Mr. X met the eligibility criteria and that all statutory safeguards were met, as required by law.

As well, Van den Eynden said she could find no realistic ground for appeal and no material inconsistencies in the assessments provided by medical professionals.

“I see no exceptional circumstances warranting a stay,” Van den Eynden said in her decision.

“The Supreme Court of Canada decided that medical assistance in dying (MAiD) is a constitutionally protected right. Parliament debated and passed the MAiD scheme into Canadian law. It seems Mrs. Y wants to relitigate issues that have been considered and decided by both the (Supreme Court of Canada) and Parliament.”

Under the Criminal Code, a medically assisted death can only be granted if two independent medical professionals determine the applicant has a grievous and irremediable medical condition, their death is reasonably foreseeable and they have the mental capacity to provide informed consent.

“Mr. X has had a significant reduction in function and has been experiencing considerable physical and mental suffering,” Van den Eynden’s decision said.

Last month, the Nova Scotia Supreme Court heard Mr. X had been diagnosed in 2003.

Between April and July of this year, Mr. X had seven assessments by medical professionals, including one from a geriatric psychiatrist to assess capacity and another from a respirologist to assess whether his death was reasonably foreseeable.

A nurse practitioner, however, said she believed Mr. X was not capable of making decisions due to dementia, and she reported she did not feel his death was foreseeable.

One of the woman’s lawyers argued that the respirologist was skeptical the man’s lung disease would cause a reasonably foreseeable death.

Philip Romney, a lawyer representing the 83-year-old man, said he disagreed with the assertion that there were conflicting medical reports, arguing that the health professionals had followed all the guidelines before approving the procedure.

Mr. X’s request for a medically assisted death was approved for July 20, but it was postponed when Mrs. Y said she was launching legal action.

She maintains his wish to die is based on anxiety and delusions.

In a written decision issued Aug. 14, Nova Scotia Supreme Court Justice Peter Rosinski concluded the man would suffer “irreparable harm” if an injunction were granted.

Last fall, the Quebec Superior Court ruled that parts of both the federal and Quebec legislation on doctor-assisted death were unconstitutional. That ruling struck down a provision that allows only individuals whose natural deaths are “reasonably foreseeable” to be eligible to end their lives with a doctor’s help.

The Quebec government simply allowed the provision to drop, but the federal government is still working on legislative changes.

This report by The Canadian Press was first published Sept. 4, 2020.

Michael MacDonald, The Canadian Press