Ontario judge rules woman fits criteria for medically assisted death

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A judge has declared that an ailing 77-year-old Ontario woman fits a key requirement to receive medically assisted death in a ruling that her lawyer said could help relieve a doctor's worries that he could be accused of murdering her.

In a decision delivered on Monday in Toronto, Superior Court Justice Paul Perell declared that the applicant's "natural death is reasonably foreseeable," noting that the doctor had reached the same conclusion but later changed his mind because he feared he could be prosecuted.

Justice Perell stopped short of granting the woman's request to declare unequivocally that she meets all criteria and may receive assistance in dying.

The case underlines that, a year after a new federal law was tabled to deal with end-of-life situations, caregivers remain worried about their legal liabilities.

The woman's lawyer, Andrew Faith, told reporters that he expected his client to be relieved by the court declaration, which could provide clarity for her doctors. Physicians should not have to be prosecuted to test an uncharted area of the law, Mr. Faith told the court earlier on Monday.

The woman, identified only by the initials A.B., made an application this spring for a court ruling.

Under Bill C-14, adult patients can receive medical assistance in dying (MAID) if they meet four criteria: having a serious and incurable illness or disability, being in an advanced state of irreversible decline, enduring intolerable pain, and facing a "reasonably foreseeable" death.

The controversial fourth condition – reasonably foreseeable death – has been called too vague, and is being challenged in constitutional cases in British Columbia and Quebec.

According to her application, the patient has incurable inflammatory and erosive osteoarthritis.

It was clear from the medical evidence that "she doesn't have long to live, given her age and health," the judge said.

In his ruling, Justice Perell tried to tread a careful path between overcoming the reluctance of the doctor and not creating a situation where civil courts would grant immunity from Criminal Code prosecutions.

The judge noted that the woman's plight, which he called "heartbreaking" and "pitiful," was not caused by Bill C-14 itself but by physicians misunderstanding the law and being overcautious.

In an affidavit, one of the woman's doctors said that "while I am of the opinion that [the applicant] meets the criteria for MAID, I am uncomfortable performing the procedure because if I am wrong about my understanding of the meaning of 'reasonably foreseeable' ... I put myself at risk of being charged with murder."

The judge said it was not the role of the courts to provide pre-authorization for assisted death. And he said the doctor could not in the same breath assess that the woman's death was foreseeable, then later argue that such a notion was too ambiguous.

Joshua Hunter, a lawyer for the Attorney General of Ontario, said getting a judge to declare a patient eligible for assisted dying is not advisable.

Civil courts should not decide criminal law because they would interfere with the discretion of prosecutors, he said.

Furthermore, he noted that Parliament had made clear when it introduced C-14 that it wanted to prevent patients from seeking judicial pre-authorization.

Joseph Cheng, a lawyer representing the Attorney General of Canada, said the federal government shares the views of the province.

A.B.'s illness is not terminal, but her health is now in decline, and she is in great pain, her court factum said.

"I am in constant, intolerable pain despite every effort of my physicians to manage it," she said in an affidavit.

She added that her condition will only get worse and she feels she has no future. "I have reached the point that my life is no longer worth living to me. ... I think of dying as going home. I want to go home."

On April 4, a physician deemed that her natural death was reasonably foreseeable.

It took another month to get a second physician's assessment that she met the criteria. By then, the first doctor was no longer prepared to assist her in dying "as he is concerned about the risk of prosecution should he be legally incorrect in his conclusion," the factum said.