MARTIN: Court has questions to answer on Medical Assistance in Dying

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On its face, it would seem like a no-brainer.

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A 27-year-old Calgary woman suffering from a medical condition she no longer finds bearable decides she will access Medical Assistance in Dying.

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She applies for the procedure and has two doctors agree she is eligible for MAiD.

Her assisted suicide is even scheduled to take place Feb. 1 of this year in the family home she shares with her parents.

It would seem just another sad case of a person suffering a debilitating medical illness who is exerting their right to die with dignity.

But the woman’s father isn’t convinced she is a suitable candidate for MAiD despite two doctors having found she meets the criteria to have a physician-assisted suicide.

The dad even goes as far as going to court in his daughter’s absence the day before the MAiD procedure is to take place and gets a temporary injunction blocking it.

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His concern is that, as far as he is aware, her only medical issues are autism and attention deficit hyperactivity disorder (ADHD) and “possibly other undiagnosed maladies that do not satisfy the eligibility criteria for MAiD,” according to a brief filed by his lawyer, Sarah Miller.

Miller is seeking an extension of the injunction while she attempts to proceed to a judicial review of the steps taken in approving the woman for the procedure.

But the daughter’s lawyers strongly argue there is no jurisdiction for a court to intervene in what they say is simply a medical decision made between an adult patient and her doctors.

As sad as it is for the father, they told Calgary Court of King’s Bench Justice Colin Feasby earlier this week he doesn’t have the right to keep his daughter alive against her will.

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And they may be right.

Canadian jurisprudence is pretty clear that a competent individual’s decisions regarding their medical treatment is something courts of law have no say in.

For example, a pregnant woman has the right to get an abortion even if the fetus’s father or her deeply religious parents want to intervene.

Similarly, someone with a potentially fatal condition can choose to decline medical treatment which could keep them alive, if they feel it isn’t worth going on.

But in the case before Feasby, the father’s lawyer does raise some concerning issues about the MAiD concept in general in Alberta.

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Miller noted after the Supreme Court ruled grievously ill persons were entitled to seek medical assistance to end their lives, the federal government amended provisions of the Criminal Code preventing people from counselling or aiding another person to commit suicide.

While it is still illegal to do so in most circumstances, medical practitioners are permitted to do so under certain criteria, which includes the patient suffers from a “grievous and irremediable medical condition.”

“It was anticipated in (the Supreme Court decision) that in decriminalizing MAiD, sufficient regulatory safeguards would subsequently be created to not only allow the ending of a life but also to protect life,” Miller wrote.

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“Unfortunately, there is no such ‘carefully designed system’ and no substantive provincial strictures in Alberta. The provincial government has chosen not to address the decriminalization of MAiD,” she said.

“Perhaps more importantly, there is no review, appeal, or other mechanism created or enforced by AHS to ensure that the parameters provided in the Criminal Code are followed by medical practitioners when approving and administering MAiD.”

It’s quite possible the woman’s lawyers are right and Feasby has no recourse but to lift the injunction and allow the woman’s death to proceed.

But even if he rules in the woman’s favour, the questions raised by the father and his lawyer need answering.

A person’s right to privacy doesn’t stop the province from ensuring the system isn’t flawed.

KMartin@postmedia.com

X: @KMartinCourts

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