Supreme Court

 

SUPREME COURT OF NOVA SCOTIA

Citation: Y v. Swinemar, 2020 NSSC 225

Date: 20200814

Docket: 499564

Registry: Bridgewater

Between:

Y

Applicant

 

v.

 

Schelene Swinemar, Nova Scotia Health Authority and X

Respondents

 

 

 

 

Judge:	The Honourable Justice Peter P. Rosinski
Heard:	August 7, 2020, in Bridgewater, Nova Scotia
Counsel:	Hugh Scher and Kate Naugler, for the Applicant Karen Bennett-Clayton, Mary Anne Persaud and Philip Romney, for the Respondents

 

By the Court:

Introduction[1]

 

In Carter v Canada (Attorney General), 2015 SCC 5 the court was asked to strike down sections of the Criminal Code of Canada that prohibited physician-assisted dying. It did so; and through that and a subsequent decision, suspended the declaration of invalidity until June 6, 2016 in order to allow Parliament to create legislation to fill the void. In its decision the Supreme Court characterized the dispute as follows:

1 It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician's assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.

2 The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person (s. 7) and to equal treatment by and under the law (s.15). This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.

[1]             They went on to address the remedy:

127 The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. "Irremediable", it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.

 

...

 

132 In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians' colleges, Parliament, and the provincial legislatures. However, we note - as did Beetz J. in addressing the topic of physician participation in abortion in Morgentaler - that a physician's decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief (pp. 95-96). In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

[My italicization added]

[2]             Y and X respectively are wife and husband. They are both in their early 80s and have been married for almost 50 years.

[3]             X has stage III COPD and other medical conditions that he asserts have made him eligible for “Medical Assistance in Dying”, or MAID. That procedure, chosen by X, was scheduled to take place on July 20, 2020. It was permitted to be scheduled because it was in accordance with the Nova Scotia Health Authority’s “Interdisciplinary Clinical Policy and Procedure titled Medical Assistance in Dying” (the MAID Policy”) which became effective August 7, 2019. I attach some of the more important of those documents as Appendix “A” hereto.[2]

[4]             This proceeding is an Application in Court started by Y.[3]

[5]             She seeks “a permanent and interlocutory injunction enjoining the Respondents from carrying out an assisted suicide of [X]... A declaration that [X] does not meet the legal requirements to permit an assisted suicide according to Canadian law and particularly that he does not suffer from a grievous and irremediable medical condition and that his death is not reasonably foreseeable”.[4]

[6]             I am satisfied that regarding this “legal” dispute, although their positions are at odds in what properly can be characterized as a “life or death” decision, both X and Y are acting with what they each  sincerely believe is in the best interests of X.

[7]             I am further satisfied that this is not a proper case for an interlocutory injunction that would prevent X from continuing to exercise his constitutional right to the availability of MAID.

[8]             I therefore dismiss Y’s motion for an interlocutory injunction.

Procedural history

 

[9]             On July 31, Justice Campbell of this Court heard an ex parte motion, ordered an interim injunction forestalling re-scheduling of the MAID procedure sought by X, and set the matter for August 7 so notice could be provided to the parties entitled thereto. On August 7, all the parties were present and argued fully whether the interim injunction should be continued as an interlocutory injunction.[5]

[10]        This proceeding has not yet been set down for a full hearing on the merits. However, based on the present positions of the parties, and the continuing implications of Covid 19’s disruption to court operations which have created great backlogs of matters (particularly time sensitive criminal proceedings) requiring hearings in the near future, I agree with counsel for  NSHA that for  a full hearing, (an optimistic estimate is) the earliest dates for hearing will be in the late fall of 2020, and I conclude it could be as late as early Spring of 2021 before the hearing is concluded. Certainly, all of the procedural steps proposed by Y’s counsel will extend when the earliest date that the hearing can take place.[6]

The requirements for an interlocutory injunction

 

[11]        In order to obtain an interlocutory injunction, Y must satisfy the court of each of the following, namely that:[7]

1.     there exists a serious question/issue(s) to be considered: is the approval of the MAID-process regarding X lawful?

              [I am so satisfied]

 

2.     Y, who seeks the injunction, will suffer irreparable harm (refers to the nature of the harm suffered rather than its magnitude – which either cannot be quantified in monetary terms or which cannot be cured, if the injunction is not granted); 

[In her written brief at para. 47, Y puts her position as: “if the injunction is denied, [Y] will lose her husband of 48 years unduly and this application will become moot as [he] will be dead. This is the ultimate irreparable harm and mitigates strongly in favour of granting this injunction.”   While arguably Y could sue for wrongful death and,  if successful, receive damages for her loss of X-given that X is otherwise presently constitutionally entitled to exercise his choice and schedule his MAID almost immediately, if this court concludes that the injunction should not be continued, then the dispute at issue here would become qualitatively moot, and so I am satisfied Y would suffer irreparable harm.]

3.     that Y would suffer the greater harm, if the injunction is not granted, as compared with the harm X will suffer if the injunction is granted (the so-called “balance of convenience”).

[I am NOT so satisfied – I conclude that there is significant compelling evidence that X has reasonably been determined to have “a grievous and irremediable medical condition” as defined in section 241.2 (2) of the Criminal Code of Canada, and that the other eligibility conditions have been met. X is constitutionally entitled to take this course of action, and given that he has some level of ongoing dementia, which could, by itself or in addition to other phenomena such as cerebrovascular disease, render him incapable, and therefore no longer qualified to consent to his presently chosen MAID process, there is a real risk here that he will be deprived of his present choice. He has also been found by MAID assessors to be presently enduring “a grievous and irremediable medical condition and his natural death has become reasonably foreseeable, taking into account all of his medical circumstances”. Further delay entails further suffering for X. I conclude he would suffer  irreparable harm if the injunction is granted. On balance, the harm he would suffer is significantly greater than what his wife would suffer.]

[12]        Y, who has the evidentiary and persuasive burden, has argued for a continuation of an injunction until the full merits are heard.

[13]        X argues that he has complied with the MAID legislation and Nova Scotia Health Authority policy, and that he should be permitted to exercise his constitutional rights, and immediately continue that process.

Evidence before the court[8]

 

[14]        On behalf of Y are the filed affidavits of herself, and Dr. CB.

[15]        Counsel for X argues that these affidavits suffer from significant deficiencies.

[16]        Our Civil Procedure Rule 39 addresses the use of affidavits:

 

 

[17]        Rule 5.17 deals with evidence on an application:

 

 

[18]        Counsel for X suggests that the affidavit of Y contains a great deal of objectionable hearsay.

[19]        In large measure the facts recorded in Y’s affidavit are matters of which she has direct or reliable indirect knowledge. Importantly, X permitted Y to be involved in the process he pursued to obtain MAID thus she has some direct knowledge of the circumstances. I bear in mind that I also have the benefit of the affidavit filed by the NSHA which confirms portions of the factual information contained in Y’s affidavit.

[20]        On the other hand, Y’s affidavit clearly has elements that suggest she may be motivated to present only evidence that supports her position as a person who is morally opposed to “assisted suicide”.[9]

[21]        Nevertheless, her affidavit is clearly oriented toward facts that are arguably relevant to the lawfulness of the decision to permit X to proceed with MAID-most significantly whether he has the capacity to make rational and informed decisions about his health and the question of physician-assisted death and whether his circumstances fulfil the criteria: that he has a “grievous and irremediable medical condition”, and in particular whether his natural death has become “reasonably foreseeable”, taking into account all of his medical circumstances, without a prognosis necessarily having been made as to the specific length of time that he has remaining.

[22]        I will not strike any portions of her affidavit but will give no weight or diminished weight appropriately to those objectionable statements made by her.

[23]        X’s counsel also objects to the affidavit of Dr. CB.

[24]        Insofar as he purports to give expert opinion, his curriculum vitae notes that he graduated from Dalhousie Medical School in Halifax, Nova Scotia and received his MD in June 1993 and that he was certified in Family Medicine as of June 8, 1995 in Canada, but it does not show him having any license to practice medicine in Canada since that time. He also questioned how much opportunity Dr. CB has had to interact with X in person, particularly recently, other than a July 29, 2020 telephone conversation.

[25]        Moreover, he is not qualified to assert that “[X] has suffered from a lifelong psychiatric disorder... He is now suffering from a powerful delusional thought process as it applies to an age-appropriate disease burden... None of these processes are likely to cause death in the reasonably foreseeable future. [X] is suffering. His desire for urgent euthanasia stems not from the above medical conditions but from a treatable psychiatric condition – hypochondriasis with severe anxiety.”

[26]        I accept these arguments – Dr. B is not a licensed psychiatrist, even in the United States. He is not a licensed doctor in Canada. He has very limited recent contact with X. It is entirely unclear when he last saw X in person. I give no weight to the purported expert opinion evidence contained in his affidavit. I will consider his factual evidence therein, but find it of minimal weight, particularly when contrasted with the very recent medical opinions and observations of X made by doctors licensed to practice medicine in Nova Scotia. Moreover, he has not had access to all the records regarding X that they have.

 

[27]        NSHA has filed an extensive affidavit from the Interim Director for MAID in Nova Scotia. Therein she chronicles the MAID process which X has engaged since April 15, 2020, and attaches the NSHA’s MAID Policy, effective August 7, 2019.[10]

[28]        Y’s counsel objects to this affidavit on the basis that it contains only hearsay factual documentation in relation to X’s circumstances as he progressed through the MAID process. On the other hand, Y’s counsel was quite prepared to rely on evidence therein that buttressed his client’s case – he pointed to the evidence of NP Giffin and that of Dr. du Toit.

[29]        I conclude that the NSHA affidavit in its entirety is admissible either as “business records” pursuant to section 23 of the Evidence Act, c. 154 RSNS 1989, as amended, and pursuant to the common law “business records” exception, articulated by the Supreme Court of Canada in Ares v Venner, or as an exception to the hearsay rule  (as being necessary and reliable ), captured in the recent canvas of the law articulated by Justice Beveridge in R v Keats, 2016 NSCA 94 at paras. 108-131.

The sections of the Criminal Code relating to MAID

 

[30]        The following sections of the Criminal Code of Canada provide for the exemption for persons involved in rendering medical assistance in dying:

Counselling or aiding suicide

241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,

       (a) counsels a person to die by suicide or abets a person in dying by suicide; or

       (b) aids a person to die by suicide.

Exemption for medical assistance in dying

(2) No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if they provide a person with medical assistance in dying in accordance with section 241.2.

Exemption for person aiding practitioner

(3) No person is a party to an offence under paragraph (1)(b) if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2.

Exemption for pharmacist

(4) No pharmacist who dispenses a substance to a person other than a medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if the pharmacist dispenses the substance further to a prescription that is written by such a practitioner in providing medical assistance in dying in accordance with section 241.2.

 

Exemption for person aiding patient

(5) No person commits an offence under paragraph (1)(b) if they do anything, at another person's explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assist-ance in dying in accordance with section 241.2.

Clarification

(5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.

Reasonable but mistaken belief

(6) For greater certainty, the exemption set out in any of subsections (2) to (5) applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption.

Definitions

(7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacist have the same meanings as in section 241.1.

Definitions

241.1 The following definitions apply in this section and in sections 241.2 to 241.4.

medical assistance in dying means

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or

(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

medical practitioner means a person who is entitled to practise medicine under the laws of a province. (médecin)

nurse practitioner means a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner-or under an equivalent designation-and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients. (infirmier praticien)

pharmacist means a person who is entitled to practise pharmacy under the laws of a province. (pharmacien)

Eligibility for medical assistance in dying

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible-or, but for any applicable minimum period of residence or waiting period, would be eligible-for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

       (a) they have a serious and incurable illness, disease or disability;

       (b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Safeguards

(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must

       (a) be of the opinion that the person meets all of the criteria set out in subsection (1);

       (b) ensure that the person's request for medical assist-ance in dying was

(i) made in writing and signed and dated by the person or by another person under subsection (4), and

(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;

(c) be satisfied that the request was signed and dated by the person-or by another person under subsection (4)-before two independent witnesses who then also signed and dated the request;

(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;

(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1);

(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent;

(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or-if they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the person's death, or the loss of their capacity to provide informed consent, is imminent-any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

(h) immediately before providing the medical assist-ance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying; and

(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.

Unable to sign

(4) If the person requesting medical assistance in dying is unable to sign and date the request, another person-who is at least 18 years of age, who understands the nature of the request for medical assistance in dying and who does 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-may do so in the person's presence, on the person's behalf and under the person's express direction.

Independent witness

(5) Any person who is at least 18 years of age and who understands the nature of the request for medical assist-ance in dying may act as an independent witness, except if they

(a) 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;

(b) are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides;

(c) are directly involved in providing health care serv-ices to the person making the request; or

       (d) directly provide personal care to the person making the request.

Independence-medical practitioners and nurse practitioners

(6) The medical practitioner or nurse practitioner providing medical assistance in dying and the medical practitioner or nurse practitioner who provides the opinion referred to in paragraph (3)(e) are independent if they

       (a) are not a mentor to the other practitioner or responsible for supervising their work;

(b) 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; or

(c) 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.

Reasonable knowledge, care and skill

(7) Medical assistance in dying must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards.

Informing pharmacist

(8) The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose must, before any pharmacist dispenses the substance, inform the pharmacist that the substance is intended for that purpose.

Clarification

(9) For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

Failure to comply with safeguards

241.3 A medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply with all of the requirements set out in paragraphs 241.2(3)(b) to (i) and subsection 241.2(8) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

       (b) an offence punishable on summary conviction.

Forgery

241.4 (1) Everyone commits an offence who commits forgery in relation to a request for medical assistance in dying.

Destruction of documents

(2) Everyone commits an offence who destroys a document that relates to a request for medical assistance in dying with intent to interfere with

       (a) another person's access to medical assistance in dying;

       (b) the lawful assessment of a request for medical assistance in dying;

(c) another person invoking an exemption under any of subsections 227(1) or (2), 241(2) to (5) or 245(2); or

       (d) the provision by a person of information under section 241.31.

Punishment

(3) Everyone who commits an offence under subsection (1) or (2) is guilty of

 

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

       (b) an offence punishable on summary conviction.

Definition of document

(4) In subsection (2), document has the same meaning as in section 321.

A summary of the significant evidence

[31]        The key questions ultimately in dispute will be whether[11]

1.     X has the capacity to make decisions regarding the MAID processes, and

2.     he in fact suffers from “a grievous and irremediable medical condition that renders his death reasonably foreseeable” per para. 70 of Y’s affidavit.

[32]        Y argues that the mere fact that some of the multiple assessors who have seen X have differed on these two issues strongly suggests injunctive relief is appropriate.

[33]        Y notes that X has been seen by the following assessors (X signed the first Request for and Consent to Medical Assistance in Dying form on April 22, 2020, wherein he stated he believed that he was suffering from “end stage COPD, a grievous and irremediable medical condition from which my natural death has become reasonably foreseeable...” which was witnessed by two persons):

[34]        NP S-on April 22, 2020 she authored the first physician/nurse practitioner assessment and indicated he was capable of making decisions with respect to medical assistance in dying, and he has a grievous and irremediable medical condition and his natural death has become reasonably foreseeable, taking into account all of his medical circumstances.

[35]        NP G-on April 30 she authored the second physician/nurse practitioner assessment and indicated on the form that he was not capable of making decisions with respect to medical assistance in dying, and that she was not satisfied that he had a grievous and irremediable medical condition and his natural death has become reasonably foreseeable, taking into account all of his medical circumstances. She authored a separate written report in which she elaborated that “I do not feel he is capable of making decisions regarding MAID due to dementia... He has a grievous progressive and incurable illness (dementia/COPD) but I do not feel that death is foreseeable.”

[36]        Dr. Chisholm – Psychiatrist- on May 8, 2020 authored a clinic letter in which she wrote: “was assessed today... This consultation was for an opinion on his capacity to make a decision about MAID, as well as his eligibility for MAID.... Cognitive Impairment-he was previously assessed by Dr. D of geriatric medicine... in July 2019.... Her assessment was that he was experiencing some mild depression and she suspected mild Alzheimer disease but could not confirm the diagnosis at that time.”... Past Medical History – ... He has good insight into the symptoms, functional limitations, and options for treatment for his illness (COPD) and intact judgement. Cognition – cognition was assessed today using a telephone MMSE and he scored 21/23 losing two points for delayed recall. On abstraction he got 3/3.... Capacity – [he] consistently stated his choice was to have medical assistance in dying. He had a factual understanding of his illness and understood that there was no other treatment that would cure his disease or improve his symptoms that are acceptable to him. He finds it intolerable and extremely stressful to be so short of breath and fatigue throughout his day, and unable to function in the way that he wants to... He wants to avoid a painful death...

 Assessment

1.     Capacity – [he] does have capacity to make a treatment decision regarding MAID, based on our assessment today.

2.     He does have a grievous and a remedial medical condition, and we have asked you to arrange an urgent reassessment from his respirologist, to confirm that a natural death has become reasonably foreseeable, given the recent decline in worsening of his symptoms over the last few months.

3.     Cognitive Impairment – he does have some cognitive impairment on testing today which has been present on previous testing reviewed. Although it is likely that he has a mild cognitive impairment, he does not have a major Neuro- Cognitive Disorder (Dementia). His cognitive status is not impairing his ability to consent for MAID.

4.     Mood –... He is not clinically depressed. There is no evidence of any psychosis or delusional thought content either.

Plan

1.     Respirology to reassess to his COPD status to provide their opinion on if his natural death has become reasonably foreseeable.

2.     as long as the Respirologist’s assessment is in agreement with above, we will complete the second MAID assessment.”

[37]        Dr. du Toit – Respirologist – authored a May 14, 2020 report in which he wrote: “... I have known him only for about nine months in total and met him first on 9 August 2019. Active Diagnosis: stage III COPD, chronic asthmatic with resulting COPD; severe dyslipidemia with cerebral ischemia and moderate cerebral atrophy; number of lacunar infarcts in the caudate and lentiform nuclei... Definite dementia with a MOCH score recently calculated at 23/30... I personally think that he is depressed as well with a significant anxiety underlying component...

[38]        Physical examination: He is a rather weak man of 83 years old. He gets out of his wheelchair with great difficulty and walks pretty wobbly and is unsteady on his feet due to muscle weakness... Respiratory: there is moderate to severe obstructive airflow with hyperresonance to percussion and decreased airflow in keeping with an FEV1 around 40%....

[39]        Opinion and Plan: This man’s lung function over the past six years has not deteriorated with an FEV1 in 2014 was 37% and today is 37%.... I would judge his COPD at level III days with Gold Class B and I do not at this stage see him as a man who is going to die from his COPD in the foreseeable future... Unfortunately, the law regarding MAID it is rather vague stating that the person should be dying in the foreseeable future. I unfortunately have no idea what that means; although I do not see that [he] will die from his lungs in the next year. That however is never sure with the Covid 19 and other respiratory tract infections. I am willing to reassess his lung function, arterial oxygenation and six minute walk test and I will set that up and try to give you some more accurate information.”

[40]        Dr. Martell – Addiction Medicine Physician – authored a July 11, 2020 report entitled Medical Assistance in Dying Consultation. He wrote: “...[X]tired after about 20 minutes of sustained conversation and started at times to close his eyes to give responses... I did notice the fatigue. At no time did he have trouble with articulation... [X reports that] he has a constant awareness of being out of breath. This also happens suddenly at night, waking him from sleep... [X] is aware that he needs to be capable of requesting this procedure both at the time of assessment and the time of the procedure itself and that loss of decision-making capacity will halt the process... He has little interest in pursuing more diagnostic testing and does not want to explore palliative care options to help him manage his symptoms. He became upset when his wife suggested that he should pursue follow-up spirometry testing and echocardiography recommended at the time of his most recent hospitalization and became more upset when she suggested that he see a psychologist... To help him manage the distress that comes with his subjective shortness of breath. When asked about his thoughts on these options, [X] told me he would like to proceed with assisted dying....

Summary:

 

1.     this patient has decision-making capacity to decide to undergo Medical Assistance in Dying.

2.     he has a grievous and irremediable condition, cerebrovascular disease.

3.     he tells me his decision is not being coerced.

4.     he is over the age of 18.

5.     Medical Assistance in Dying provision is being considered and other options for care were reviewed.

6.     his death is reasonably foreseeable according to his primary care provider, who knows him best [reference to NP S]. The challenge here has been to try to figure out what limits his life expectancy. His severe lung disease does not, according to his pulmonologist. From what I can tell, it is his cerebrovascular disease that is creating the behavioural and distressing symptoms that is progressing rapidly. He is not interested in trying to get more clarity on his condition and I agree that the likelihood of uncovering something reversible is very remote.

Plan:

 

...

7.     [X’s] disease process may interfere with his decision-making capacity. It seems to have already done this on one occasion, although I deem him to have capacity by my assessment today...”

[41]        Dr. Martell completed the first physician/nurse practitioner assessment that same day and found X to be eligible for MAID. That is he agreed that X is “capable of making decisions with respect to medical assistance in dying” and “he has a grievous and irremediable medical condition and his natural death has become reasonably foreseeable taking into account all of his medical circumstances”

[42]        On July 16, 2020 X signed a second Request for and Consent to Medical Assistance in Dying form, wherein he stated that he believed that he was suffering from “brain disease, a grievous and irremediable medical condition from which my natural death has become reasonably foreseeable”, which was also witnessed by two persons. Dr. Miller noted that in each circumstance the referred to “end stage COPD” and “brain disease” was inserted by X rather than his treating providers.

[43]        Dr. Miller – Department of Internal Medicine- On July 21, 2020 the first physician/nurse practitioner assessment was completed by Dr. Miller. She also authored a lengthy MAID Consultation Letter dated July 21, 2020. Therein, she agreed that she would not be surprised to learn that X had died naturally in the coming year if he did not have access to MAID.

[44]        She stated in her report: “in terms of my capacity assessment, I am confident that [X] has the capacity to make decisions related to his own health and specifically medical assistance in dying based on multiple observations including the following...

[45]        She continued: “in exploring [X’s] rationale for pursuing MAID , he recounted a precipitous decline over the past 6 to 8 months... He describes extreme suffering related to his breathlessness as it limits his activity... results in extreme fatigue... and causes him existential distress (“I have lost my sense of purpose”... due to the physical suffering). He reports that over the past several months his dyspnea has resulted in the considerable loss of his function in terms of inability to do activities previously important to him... Loss of appetite and weight... and significantly slowed mobility.... He feels strongly that MAID is the only definitive means of ending his suffering at this time. I again offered [X] further investigation to provide diagnostic clarity related to the potential that his symptoms may be related to something other than his known Gold Stage 3/severe COPD. He declined an offer and confirmed that no further investigation is acceptable to him at this point.... It took him approximately three minutes to walk that 15 m distance. When I inquired if he could have walked faster than that he stated ‘no’. He was very breathless following the walk.... He had visible increased work of breathing was shallow breaths, accessory muscle use, and a prolonged expiratory phase. [X] was visibly fatigued throughout the assessment... Reports that he currently weighs 122 pounds on a 5’7” frame... This represents a significant loss over recent years from his lifelong baseline of 155 pounds...

[46]        I explained to [X] following this comprehensive assessment that it is my impression that he meets the legal criteria for MAID. In terms of the legal requirements relating to the determination of a ‘grievous and irremediable medical condition’, I concluded that his progressive frailty and severe COPD meet all of the required criteria. Firstly, COPD is a ‘serious and incurable disease’. Secondly, [X] is in ‘an advanced state of irreversible declining capability’ as evidenced by his loss of function over the past months. Thirdly, [ X’s] COPD related dyspnea is the cause of ‘enduring physical AND psychological suffering that is intolerable to HIM and cannot be relieved under conditions that he finds acceptable.’ Finally, I am confident that [his] ‘natural death has become reasonably foreseeable’ related to his progressive frailty that appears to be driven by his end stage COPD and associated dyspnea. I asked myself the ‘surprise question’ of whether ...I would be surprised to learn that [X] had [not] died naturally in the coming year if he did not have access to MAID. My answer is yes.

[47]        Of note, COPD prognostication is a complex endeavour. Based on my extensive experience providing hospital-based care to patients with end-stage COPD, as well as a knowledge of the prognostic literature, there is a significant variability in disease trajectory.... There is no single measure that can accurately define life expectancy, nor is an estimation of remaining lifespan a requirement in concluding that death is ‘reasonably foreseeable’. One validated prognostic tool in COPD is the BODE Index. [X’s] BODE Index is nine points... This constitutes the highest risk category... This objective measures only noted here to validate my global impression of [X’s] severe COPD constituting ‘end-stage’ disease.... I therefore at the end of our visit invited [Y] to join us. I summarized the information offered to [X]... I explained to her my conclusion that he meets the legal criteria for MAID on the basis of his progressive frailty and severe COPD. I explained that although his history of cerebrovascular disease certainly contributes to his overall status, that I did not have the impression based on my assessment today that it was a major driver of his symptom burden or functional decline.... Given the complexity of the situation and specifically the medical legal threats made by [Y], I explained that we would be taking the extraordinary step of conducting a formal case review and potentially involving an additional neutral assessor.[X] was very disappointed by the ongoing delay in his ability to access the procedure but expressed concern for all of his treating providers including asking me repeatedly ‘can she really sue you once I’m gone?’ I explained that Nicole Phinney would be in communication related to next steps in procedure planning pending the results of our case review and potentially an additional assessment.”

[48]        On July 24, 2020 X completed a third Request for and Consent to Medical Assistance in Dying. He selected “progressive frailty and end-stage COPD” as the grievous and irremediable medical condition from which his natural death has become reasonably foreseeable. It was witnessed by two persons.

[49]        Dr. Holland- Family and Emergency Medicine (as well as significant involvement with creating the clinical infrastructure for MAID in Nova Scotia and sits on the NSHA’s MAID Steering Committee. He is also the Chair of the Committee on Ethics for the Canadian Medical Association, and “played a central role in drafting the CMA’s Policy on Medical Assistance in Dying which is a central document that defines clinical standards of practice on MAID in Canada.” – Met with X on August 1, 2020 and concluded that: “[X] is eligible for MAID. Given his high degree of suffering and the lengthy process to be deemed eligible, I will work with the NSHA to make arrangements for his MAID procedure as expeditiously as possible. It is my understanding that the assessments of Dr. [Miller] will be considered as the first assessment for purposes of eligibility and my assessment will be considered as the second assessment. I have reviewed Dr. Miller’s assessment and we are in agreement.”

[50]        He states in his report:

“[Dr. du Toit/the respirologist] reported that he was not able to comment on the legal criteria for ‘reasonably foreseeable’ which is completely understandable given that he is not had the required training or experience in interpreting of the ‘reasonably foreseeable’ criteria of ‘grievous and irremediable condition’ in the relevant MAID legislation. It is worth noting that my assessment is independent of all previous MAID assessments and the two auxiliary assessments as defined by health Canada as regards the independence of MAID assessors.... I am of the opinion that [X] meets all requirements for MAID and is therefore eligible for MAID. It is worth noting that this case is quite complicated and requires a firm understanding the legal criteria for MAID as well as a clinical appreciation of the various conditions affecting [X]. However, the fact that this is a complicated case does not mean that his eligibility is questionable or ‘borderline’. After a careful review of the case, I am of the opinion that [X] clearly meets the criteria for MAID in Canada.”

 

[51]        Dr. Holland’s report is extremely detailed and carefully addresses the concerns of earlier assessors. Importantly he reiterates that X is at stage III COPD with Gold Class B, and that he “has clear evidence of cerebrovascular disease and is at risk of an ischemic stroke. At his age, an ischemic stroke could be devastating and easily lead to his death.”

[52]        He comments:

“Taking all of [X ‘s] medical conditions and his age [into account], there is no doubt that his death is reasonably foreseeable. It is also worth noting some other commonly used measures within the MAID assessment community that are used to assist in determining if a patient meets the criteria for ‘reasonably foreseeable’:

 

•      one such criterion is the ‘surprise test’ where the assessor asked themselves if they would be surprised if the patient died in the next year. I can say I would not be surprised if [X] died in the next year. In fact, I would not be surprised if he died in the next month. As Dr du Toit appropriately highlights, a simple respiratory tract infection could easily lead to [X’s] death given his age and severity of his respiratory illness;

 

-another method of assessing ‘reasonably foreseeable’ is the ‘reasonably predictable’ measure. This method is recommended by the Canadian Association of MAID Assessors and Providers as outlined in their Clinical Practice Guideline regarding the clinical interpretation of ‘reasonably foreseeable’. As noted in their key recommendations: ‘as an aid to clarity, clinicians can consider interpreting ‘reasonably foreseeable’ as meaning ‘reasonably predictable’ from the patient’s combination of known medical conditions and potential sequalae, whilst taking other factors including age and frailty into account’

 

...

 

In accumulation of his various medical conditions, age and frailty, [X’s] death is clearly reasonably foreseeable.”

 

[53]        Dr. Holland also carefully assesses [X’s] capacity to make a decision regarding at the moment of the MAID request and at the time of the procedure itself:

“The MAID assessment by NP Giffin states that [X] does not have capacity to make a decision regarding MAID ‘due to dementia ‘. However, she does not proceed to elucidate any other components of her capacity assessment. It is worth noting that patients with dementia can have capacity for decisions regarding a large number of medical conditions including MAID. Dementia is a spectrum of illness ranging from very mild to very severe.... Regardless, [X] also has a formal geriatric psychiatry assessment where Dr. Terry Chisholm reports he does not have dementia. Also, Dr. Chisholm highlights he does have capacity for decisions regarding MAID. I saw no evidence of dementia during my interview with [X]. As well, he clearly has capacity. However, given that this was brought into question by the MAID assessment by NP Giffin, I will document a detailed account of my capacity assessment for [X].

 

...

 

Hypocondriasis with severe anxiety:... I do not believe that [X] has [this condition] but even if he did, that would not exclude his eligibility for MAID. It is definitely possible that a component of [X’s] suffering is due to an element of anxiety or some other mental health condition. However, any mental health condition that may be contributing to [X’s] condition is NOT impairing his capacity to consent to MAID. Nor would it change the fact that he has a grievous and irremediable condition... [X] has clearly stated he does not want to go through any more investigations to uncover further explanations of his suffering. Even once diagnosed, these conditions are very difficult to treat. Even if there is a component of psychogenic symptoms that could be diagnosed and could be treated, this would only partially treat [X’s] suffering and he has stated clearly that he is not interested in this type of amelioration.... In summary, [X] clearly has the necessary understanding, appreciation, expression of choice and reasoning to make be deemed capable to make a decision regarding MAID.”

 

Conclusion

 

[54]        I appreciate that this is not the final hearing stage, and not all the evidence has been presented in a full and robust fashion. However, my analysis of the law and facts leads me to conclude that Y has not satisfied me that there are grounds for continuing the present interim injunction, as an interlocutory injunction.

[55]        Therefore, I immediately order the interim injunction of no force and effect and decline to order an interlocutory injunction.

[56]        Given the nature of this case, dealing with a novel legal issue of injunctions in circumstances where MAID is sought, I order all parties to bear their own costs.

 

                            

                                                                   Rosinski, J.