The father of a 27-year-old woman who has been approved for Medical Assistance in Dying (MAID) has asked a Calgary judge to dig into the circumstances that led to two of three doctors approving his daughter’s application.
A publication ban protects the identities of the parties and the medical professionals. CBC News will identify the daughter as M.V. and the father as W.V.
At issue is whether the courts can step in when family members, with no legal standing, have concerns about the MAID approval process.
Currently, two doctors or nurse practitioners have to approve a patient for MAID.
The medical practitioners must determine, through an assessment, that the person has a grievous and irremediable medical condition that causes intolerable and enduring physical or psychological suffering.
A previous requirement of MAID — a reasonable foreseeability of natural death — was repealed in 2021. For now, people suffering solely with mental illness are excluded from accessing MAID.
No explanation for MAID qualification
Court of King’s Bench Justice Colin Feasby heard that M.V. — who lives with her father — was approved in December. Her date to receive MAID was set for Feb. 1.
The day before she was scheduled to die, W.V. was successful in seeking a temporary injunction, preventing M.V. from accessing MAID.
She has not submitted any medical documentation that could explain why she qualifies for MAID.
In a brief filed with the court, W.V. argued “M.V. suffers from autism and possibly other undiagnosed maladies that do not satisfy the eligibility criteria for MAID.”
‘None of your business’
But M.V.’s lawyer Austin Paladeau argued she’s “not trying to withhold or hide anything.”
“She’s saying ‘it’s none of [W.V.’s] or the public’s business, I’ve been approved by two doctors, I am entitled to this and, court, it’s none of your business either.'”
Sarah Miller, the lawyer for the father, called the situation “a novel issue for Alberta.”
“As it stands, AHS [Alberta Health Services] operates a MAID system with no legislation, no appeal process and no means of review,” wrote Miller in her brief for the court.
Miller has asked Feasby for a judicial review of M.V.’s MAID approval.
M.V. ‘not a reliable witness’
The father submitted a 2021 report with the court, authored by a doctor at a neurology clinic who concluded M.V. required no followup and was “normal” and sent her back to her family doctor.
Miller also pointed out that on her initial MAID application, M.V. indicated her death had become “reasonably foreseeable” yet she was approved as a “track 2” MAID patient, which means death is not reasonably foreseeable.
“Therefore M.V. is not a reliable witness,” wrote Miller in her brief.
Feasby heard that two doctors were initially approached by M.V. One agreed to sign off on approving her for MAID, the other denied the application.
A third “tie-breaker” doctor, as described by lawyers for Alberta Health Services, was then offered to the patient, in this case, M.V.
MAID ‘unlike any situation’
W.V. believes M.V. is not eligible for MAID and that her “capacity to consent to MAID is impacted by mental illness.” He also feels she’s been “unduly influenced by a third party,” according to one of the documents filed with the court.
If the MAID approval process is not followed as set out in the Criminal Code, medical practitioners could be charged criminally.
“If the courts can look at this in the criminal context, the courts can look at this in a pre-criminal context,” argued Miller.
Emily Amirkhani, another lawyer for W.V., argued that MAID is “an incredibly unique system” where if a person seeking MAID is wrongfully approved, “that person is never going to cause anyone to look behind that curtain” because they got what they wanted.
“It’s unlike any situation I can think of where the wrongful administration of the system cannot be brought to light but for someone besides the patient,” said Amirkhani.
Medical autonomy
M.V’s lawyer Austin Paladeau stressed the case boils down to an adult’s right to medical autonomy.
“He’s at risk of losing his daughter and while this is sad, it does not give him the right to keep her alive against her wishes,” said Paladeau.
“One of the real challenging parts of this process … is what’s actually happening,” said Paladeau.
“I completely understand [W.V.] does not want his daughter to die … I represent [M.V.], I don’t want her to die either but that doesn’t play into account here.
“Even though we have or may have very strong views … at the end of the day this is [M.V’s] decision.”
Judge calls case ‘vexing’
Paladeau argued that the determination of eligibility for MAID, including whether an individual has capacity, should be left to the approved assessors.
He also noted that parliament considered and rejected a supervisory and/or review role for judges.
Feasby described the case as “vexing.”
“As a court, I can’t go second guessing these MAID assessors … but I’m stuck with this: the only comprehensive assessment of this person done says she’s normal,” said Feasby.
“That’s really hard.”
The judge reserved his decision on whether he’ll set aside the temporary injunction preventing M.V. from accessing MAID.
The other part of his decision will deal with whether a judicial review will take place, which would examine how doctors came to sign off on M.V.’s MAID application.
Source Agencies
