N.S. Court of Appeal and Medical Assistance in Dying – Appeal Dismissed

October 6, 2020 Sydney Osmar In the News Tags: 0 Comments

I recently blogged on a case arising out of Nova Scotia, addressing the question of whether or not a third party can block an eligible person from accessing MAID (Medical Assistance in Dying).

An elderly couple, previously referred to as X and Y, now identified as Katherine Sorenson and Jack Sorenson, were engaged in a heartbreaking dispute – Mr. Sorenson, who has COPD and has been found eligible to access MAID, wants to die, and his wife, Mrs. Sorenson, does not want to let him.

In July, 2020, Mrs. Sorenson brought an application, arguing that her husband did not meet the eligibility requirements for MAID. Shortly thereafter, she sought an interlocutory injunction to prevent the MAID procedure from going ahead, a request that was rejected by Justice Peter Rosinski. Mrs. Sorenson appealed her decision to the Nova Scotia Court of Appeal.

That appeal was heard at the end of September, and the unanimous decision was rendered October 2, 2020. The Court found that it has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment, as those decisions should be left to approved healthcare assessors. In reaching this decision, the Court explained that the legislative history giving rise to the Criminal Code amendments that permit MAID, establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments. In doing so, Parliament made clear that the role rests with approved healthcare assessors.

Further, while the Court agreed with Mrs. Sorenson, that there are a variety of contexts where the courts have the ability to assess whether individuals have capacity (with regard to decision making surrounding property and personal care, for example), courts simply do not have the institutional capacity to review challenges to eligibility assessments “in a manner that respects the urgency inherent in a MAID context.” The court saw this matter as a clear example that demonstrates a scenario where an individual, having already been found eligible for MAID (which includes experiencing enduring suffering), would be forced to wait extended periods of time, by virtue of the involvement of the court. This would include waiting on the outcome of production motions, discoveries, and court hearings where health professionals and others are required to testify, among other procedural steps.

The Court ultimately determined that Mrs. Sorenson failed to raise a justiciable issue, and dismissed her appeal. However, after providing this conclusion, the Court provided further comment on Mrs. Sorenson’s standing, determining that she did not have private or public standing to challenge Mr. Sorenson’s MAID eligibility assessment. The Court held that while, as his spouse, Mrs. Sorenson undoubtedly loves Mr. Sorenson deeply, and wants what she feels is best for him, “…those feelings do not give her standing to challenge the determination that he meets the eligibility criteria for MAID…the Supreme Court of Canada in Carter recognized personal autonomy in medical decision-making was to be respected and protected.” Therefore, the Court concluded that permitting Mrs. Sorenson standing to question the outcome of Mr. Sorenson’s MAID assessment, would fail to acknowledge this fundamental right of her husband.

To read more about this decision, as reported by CBC, see here, and as reported by The Star, see here.

Thanks for reading!

Sydney Osmar

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