Court’s permission necessary for assisted dying, Ontario judge rules

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A court's permission continues to be necessary for a doctor-assisted death until the federal government passes legislation ensuring that the vulnerable are protected, an Ontario judge ruled on Wednesday.

In the case of a man with terminal brain cancer who asked for an assurance his medical team would not be prosecuted for helping him end his life, Ontario Superior Court Justice Paul Perell said something completely different is needed – a continuation of the Supreme Court of Canada's requirement for a judge's authorization. In the absence of a federal law, he said, it falls to judges, not the medical profession, to protect the rule of law and safeguard the vulnerable who are at risk of being manipulated.

The ruling stunned observers around the country, and adds urgency to Parliament's search for a way out of a political impasse that is delaying passage of a new law. By requiring court orders, the judge is subjecting deeply suffering patients to the cost, effort and time of the legal process, critics said.

"I mean, these are sick people, for heaven's sake," Ellen Wiebe, a Vancouver doctor who has assisted in two deaths without court authorization since the constitutional right to an assisted death took effect after June 6, said in an interview. She described a patient with amyotrophic lateral sclerosis, unable to speak and barely able to type, having to fill out detailed applications, which she called much more arduous than communicating with doctors for their support under the guidelines from the B.C. College of Physicians and Surgeons.

Rather than seek court orders, Dr. Wiebe said she will continue assisting in deaths for patients who meet the Supreme Court requirements – a mentally competent adult suffering intolerably from a grievous and irremediable condition.

Justice Perell's ruling, although it applies only in Ontario, may create a perception among some doctors, nurses and pharmacists that they are at risk of prosecution, lawsuits or professional discipline if they participate without court authorization, Toronto lawyer Andrew Faith, who represented the man with brain cancer, said in an interview.

"Applications are expensive and they take time, and some of the people who are most in need of this don't have time, and many of them don't have money," he said. "What this does is add to the urgency of legislation for anyone who requires this relief."

He said he did not know if he would appeal. The judge granted his client authorization.

The Supreme Court established a constitutional right to an assisted death in February, 2015, but gave governments a year to create the rules. The Liberal government asked for a six-month extension, and the court granted four months, which ended on June 6. During those four months, it created a constitutional exemption for people who met certain criteria. Those people were told to apply to Superior Court judges for a ruling that they fit the criteria. There were at least 15 such rulings in the four months.

After June 6, doctors, nurses and pharmacists were uncertain whether they would be prosecuted for participating in an assisted death. Alberta, British Columbia and Nova Scotia issued directives to prosecutors and police not to investigate or charge medical team members involved in assisted deaths that met the Supreme Court's definition. Ontario initially said court orders were advisable, but eventually issued a similar non-prosecution guideline, adding a requirement that doctors report the deaths to coroners, who may investigate, inform police and order an autopsy. Mr. Faith's client and medical team felt that left too much uncertainty, and that the coroner's process was an invasion of privacy. As a practical matter, rather than a legal necessity, they sought a declaration that helping the man end his life would be lawful.

Although medical regulatory bodies across Canada have developed rules for implementing assisted death, Justice Perell said the Supreme Court had not envisioned the parameters of assisted death being left unregulated. For that reason, he said, the court application process established by the Supreme Court must continue, until the "uncertainty phase" ends with the passing of legislation.