A Nova Scotia woman has gone to court to intervene in her husband’s plans to die.
While he says he’s suffering and near the end of his life because of advanced chronic obstructive pulmonary disease (COPD), she says his wish to die is not based on physical illness, but anxiety and mental delusions.
The man was approved and scheduled for medical assistance in dying (MAID) in July, but his wife applied for a permanent injunction from Nova Scotia Supreme Court, forcing him to pause his plans. She also applied for an interlocutory injunction, which would bar him from a medically-assisted death until the final ruling on a permanent injunction.
Justice Peter Rosinski heard the case earlier this month and dismissed her request for an interlocutory injunction in a decision that was released last Friday.
Hugh Scher, a lawyer representing the woman, told CBC he’s already filed an appeal, which is to be heard in the high court next week. The man’s plans to die will be forestalled at least until the appeal proceedings are complete.
There is no publication ban tied to the case, but Rosinski does not name the couple or give full names of the medical professionals involved in the case.
“There are likely few decisions more personal and private than engaging those involved with, and legally available to provide the service components of a lawful medically assisted dying process,” Rosinski said in his written decision.
CBC is also not naming those involved in the case at this time.
A divisive dispute in a long marriage
Submissions to the court indicate the couple have been married for 48 years, and Scher said they’ve known each other for 62 years. They’re both in their 80s.
According to Scher, the man has left their shared home over the dispute.
“It is absolutely tragic that it should come to this,” Scher said.
Physician-assisted death was prohibited in Canada until the Supreme Court of Canada struck down a section of the criminal code in 2015, making way for new legislation.
Now, individuals can seek physician assistance in dying if they’re capable of granting consent and have a “grievous and irremediable medical condition.”
Weighing medical reports
The man in this case was assessed by two nurse practitioners, a psychiatrist, a respirologist and three physicians between April and July to consider his request for MAID.
Rosinski considered reports from those seven medical professionals, as well as an affidavit — submitted by the woman — from a person who diagnosed her husband with hypochondria.
That person graduated from Dalhousie University’s medical school in 1993, but he is no longer a licensed physician, and so Rosinski said he gave his affidavit “minimal weight” compared to the opinions and observations of licensed doctors.
While none of the licensed medical professionals cited in the case suggested hypochondria, they did bring up mental illness including depression, anxiety and dementia.
Some of them said that despite signs of those conditions, he was still perfectly capable of consenting, while others said he should not be allowed to make the decision to die.
The man’s physical condition was similarly disagreed upon, with some saying his lung disease was relatively stable and others saying they would not be surprised if he were to die within the next month.
But the three physicians who provided the man’s final assessments agreed that he was fit to decide his fate, and that he he was frail and ill enough to qualify for MAID.
Scher said the conflicting reports show the need for a fulsome judicial review of the man’s request to die.
Rosinski noted that this hearing did not see all the evidence in the case “in a full and robust fashion,” because it was not the final stage of hearing. But, he said, the evidence he did see didn’t meet the threshold for an interlocutory injunction.
While it’s a serious matter that could cause irreparable harm, Rosinski wrote, the balance of harm weighed more heavily on the man, should the injunction be granted, than it would on his wife if it were not.
Full hearing still to come
Rosinski said the full hearing hadn’t been scheduled and an early and optimistic start date would be late fall, likely to carry into spring 2021.
Rosinski said the case may be the first of its kind disputed in Nova Scotia, Scher said it could set an important precedent for judicial oversight in MAID.
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