Qualifying for medical assistance in dying, often referred to as MAiD, is no small feat. First, there are a host of criteria that an individual must meet to qualify, set out insection 241.2 of the Criminal Code, RSC 1985, c C-46. Second, an individual’s application must be approved by two medical practitioners or nurse practitioners who are independent.
What does it mean to be an independent practitioner for the purposes of assessing a MAiD application? This point is addressed by subsection 241.2(6) of the Criminal Code, which states that a practitioner is independent if they:
- are not a mentor to the other practitioner or responsible for supervising their work;
- do not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, other than standard compensation for their services relating to the request; and
- do not know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.
Essentially it appears that practitioners must be independent of both the applicant and each other.
What are the ramifications if an application for MAiD is approved by a practitioner who is not independent? The answer to this question is not clear, as demonstrated by WV v MV, 2024 ABKB 174, a new MAiD case that we discussed last week on the blog: see The Availability of MAiD for Individuals with a Mental Illness.
In WV v MV, the applicant applied for MAID twice – both times, only one of two doctors approved her application. However, after her second application was rejected, Alberta Health Services, the entity responsible for administering MAiD in Alberta, offered to arrange a third “tie breaker” assessment of her application. The tie-breaker assessment went in the applicant’s favour and she was ultimately approved for MAiD.
After the applicant was scheduled to receive MAiD, her father obtained an interim injunction to prevent her death. In response, the applicant daughter moved to set the injunction aside. The father contested her application, arguing that the doctor who provided the tie-breaker assessment was not objective and independent because the same physician had also approved her initial application for MAiD. The father also argued that, by permitting a doctor who had approved the applicant for MAiD on a previous occasion to provide the tie-breaking assessment, Alberta Health Services “arguably decided the outcome of the process.”
The Court of King’s Bench of Alberta found that the father had public interest standing to address the independence of the tie-breaking MAiD assessor and the MAiD approval process, and permitted him to proceed with judicial review. In granting this relief, Justice Feasby observed that it could be argued that Alberta Health Services did not comply with the requirements for MAiD, as “[a] plain reading of the independence provision set out in s. 241.2(6) of the Criminal Code … is that the choice of a MAiD assessor who had already made a decision regarding eligibility for MAiD is contrary to the requirement of independence.” However, he also observed that there was more than one plausible reading of the independence provision, and that a full hearing would be required to interpret its meaning. He went on to note:
… The MAiD provisions of the Criminal Code are still relatively new and there has been little judicial consideration of the MAiD provisions… There has been even less judicial consideration given to the policies of provincial health authorities charged with implementing MAiD … The case will have an impact on the rights of others to the extent that it clarifies what it means for a MAiD assessor to be independent. Clarifying the meaning of what it means for a MAiD assessor to be independent is useful for MAiD practitioners, members of the public who may seek MAiD, and [Alberta Health Services] which is charged with administering MAiD.
Despite the uncertainty around the process that resulted in the approval of the daughter’s application for MAiD, Justice Feasby ultimately held that the father could not prevent his daughter from accessing MAiD and lifted the injunction. However, he also issued a 30-day stay of his decision to give the father time to appeal his decision to the Court of Appeal of Alberta.
It looks like this case is far from over. According to a recent CBC article, the father has already filed an appeal from Justice Feasby’s decision, seeking to have the injunction reinstated until his application for judicial review is heard: see Father files appeal in continued effort to prevent daughter’s MAID death. It will be interesting to see how the Alberta Court of Appeal handles this case, particularly whether the daughter will be permitted to access MAiD while there are still so many outstanding questions about the process used to assess her MAiDapplication, including the independence requirement imposed on practitioners who assess MAiD applications.
Have a great day!