On February 29, 2016, an Alberta woman suffering from amynotrophic lateral sclerolsis (“ALS”), became the first person in Canada to obtain a physician-assisted death.
Four days prior to her death, Ms. S applied to the Alberta Court of the Queen’s Bench and successfully obtained an exemption from the Criminal Code prohibition on physician-assisted dying in response to the direction from the Supreme Court of Canada (“SCC”) in Carter v. Canada (Attorney General), 2016 SCC 4 (“Carter 2016”).
The Memorandum of Decision of the Honorable Madam Justice Martin in HS (Re), 2016 ABQB 121 (“Re HS”) provides further clarity with respect to the Court’s role in the temporary framework for applying for the constitutional exemption set out in Carter 2016, which permits eligible individuals to access a physician-assisted death with the approval of the superior court in their jurisdiction.
“I am not suffering from anxiety or depression or fear of death. I would like to pass away peacefully and am hoping to have a 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”
Ms. S, Re HS, at para 15.
At the time of her application for judicial authorization for a physician-assisted death, Ms. S was in the final stages of ALS; she was almost completely paralyzed, living in significant pain, and required constant care and support. It was expected that, at most, she had six months to live.
Despite being a longtime resident of Calgary, Ms. S was unable to find a physician who was willing to provide her with a physician-assisted death in Alberta. As such, she sought the assistance of two physicians in Vancouver, and crafted a plan to die on private property in British Columbia. The assistance of a pharmacist to dispense the necessary mediations was essential to carry out her plan; however, no nurses would be involved.
The role of the Court
The Court was clear that its role in these types of applications is limited to the narrow task of determining whether a particular applicant meets the criteria for a physician-assisted death articulated in Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter 2015”) and applying or authorizing the Carter 2016 exemption. This inquiry is individual and fact specific. In Re HS, the Court had no difficulty in concluding that:
- Ms. S was a competent adult person;
- she clearly consented to the termination of her life;
- she had a grievous and irremediable medical condition;
- her condition was causing her enduring, intolerable suffering; and
- her suffering could not be alleviated by any treatment acceptable to her.
Process and evidence
The superior courts of Ontario and British Columbia have issued practice advisories to counsel and parties who intend to bring an application for judicial authorization for a physician-assisted death. Both of these documents require notice to be served on the respective provincial Attorney General, as well as the Attorney General of Canada. Madam Justice Martin noted that while no such protocol exists in Alberta, there is practical merit in giving notice to the Attorneys General in order that they be given the opportunity to make submissions in the public interest.
Interestingly, in the case of Ms. S, the Attorney General of British Columbia was given notice of Ms. S’ application, as her proposed physician-assisted death was to take place in British Columbia under the care of physicians licensed to practice in that province. The cross-jurisdictional aspect of this particular case highlights the complexity faced by lawmakers in developing a legislative scheme to regulate the process of physician-assisted dying.
CONFIDENTIALITY: “NOTHING COULD BE MORE PERSONAL”
Ms. S’ privacy, dignity, and autonomy were found to be the most important interest warranting protection, outweighing the reasons underpinning Canada’s open court principle. The subject matter of the application related to Ms. S’ medical status and a fundamental life choice she wished to make. As such, in Re HS, the Court sealed the records relating to Ms. S’ application and implemented a restriction on publication of any information that could identify her.
We expect that similar restrictions will be commonplace in these types of applications in light of their inherently personal nature and existing legislated restrictions on the disclosure of personal health information under both federal and provincial privacy legislation.
Applicants bear the burden of establishing that they fall within the scope of the exception granted in Carter 2016. In Re HS, Ms. S presented her evidence in the form of two personal affidavits which appended various relevant records, including statements from her treating physician and the physician who planned to assist in her death.
Madam Justice Martin noted that, while Ms. S’ evidence was sufficient to demonstrate that she satisfied the five Carter 2015 criteria in the form it was presented, it is preferable to have affidavits sworn by the physicians themselves rather than attaching their statements as an exhibit to the applicant’s affidavit. This position is consistent with the position taken by the British Columbia Supreme Court in its recent practice advisory, which requires affidavit evidence from the applicant, as well as the applicant’s treating physician and the physician expected to assist in the applicant’s death.
A cross-jurisdictional order
The Attorney General of British Columbia questioned whether an Alberta order would grant the necessary authority for medical practitioners in British Columbia to assist in Ms. S’ death, but made no submissions on this point. Notwithstanding the cross-jurisdictional aspects of the application, Madam Justice Martin was confident that the Alberta Court had the jurisdiction to grant a permissive and protective order which would be valid in British Columbia because the Carter 2016 exemption:
- is personal to the qualifying individual applicant and should accompany that individual throughout Canada;
- flows from the applicant’s Charter rights; and
- is granted in relation to a country-wide, federal prohibition.
She further stated that the exemption clearly contemplates the assistance of others, and the fact that those individuals may be from a different jurisdiction is secondary to the exemption itself.
The role of other health care professionals
The Alberta Court took note of the debate which has arisen from the lack of specificity in Carter 2015 which, if any, health professionals other than physicians are protected by that decision. In the case of pharmacists, Madam Justice Martin expressly stated in Re HS that licensed pharmacists who are required to prepare and provide the medications for an authorized physician-assisted death are “necessarily and definitionally” protected. However, because Ms. S planned her death involving only physicians, the participation of other professionals, including nurses, was not addressed. It remains uncertain whether a similarly definitive statement can be made with respect to the rest of the multidisciplinary health care team and it would, in our view, be prudent to specifically refer to nurses or other professionals anticipated to be involved in the court order itself.
In response to the Court’s comments in Re HS, on March 3, 2016, the College of Pharmacists of British Columbia changed its position with respect to the involvement of its registrants in physician-assisted deaths. Licensed pharmacists are now permitted to dispense the required drugs for a physician-assisted death if so authorized by a court order in each individual case.