Y v Swinemar, 2020 NSSC 225 https://www.canlii.org/en/ns/nssc/doc/2020/2020nssc225/2020nssc225.html

This post is about medical assistance in dying, which is certainly one of the heaviest and arguably, most challenging issues in elder law.

In its 2015 Carter decision,[1] the Supreme Court of Canada recognized a constitutional right to medical assistance in dying (“MAiD”) in at least some situations, and struck down the portion of the Criminal Code[2] that had prohibited it.

The court suspended this remedy for approximately one year to allow Parliament to create new legislation on this difficult issue.

The Criminal Code now provides at s. 241.2(1) that a person is eligible to receive MAiD if:

(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.

241.2(2) clarifies that a person has a “grievous and irremediable medical condition” if:

(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.

Since the provisions that allow MAiD are new, their limits are being tested, and the law is still developing in this area.

The recent Nova Scotia decision in Y v Swinemar involved a wife (“Y”) who unsuccessfully sought an interlocutory injunction to prevent her husband (“X”) from receiving MAiD. X and Y were in their 80s, and had been married for “almost 50 years”. X suffered from late-stage chronic obstructive pulmonary disease (“COPD”), and had undergone the process to arrange an assisted death. Y argued both that X was incapable of carrying out this decision, and that he did not meet the criteria of a grievous and irremediable medical condition and a reasonably foreseeable death.

Requirements for an Interlocutory Injunction

Much of the reasoning in Rosinski J.’s decision can be found in his overview of these requirements. The three requirements were:

1. That there be a serious issue to be tried;
2. That Y would suffer a harm of an irreparable nature if the injunction were not granted; and
3. That the harm suffered by Y if the injunction were not granted would be greater than the harm that would be suffered by X if it were.

Rosinski J. was satisfied that the first two requirements had been proven, but not the third. The serious issue to be tried was X’s eligibility for MAiD. Y’s irreparable harm would be the loss of her husband. On the third requirement, Rosinski J. noted that X had shown signs of dementia, and faced a risk that he would become incapable before he could receive MAiD if his access to it were delayed. This outcome would have had the effect of depriving X of his constitutional right to end his suffering, which in any event would necessarily continue for the duration of any injunction. Being also satisfied that X’s assessors had found that he did suffer from a grievous and irremediable medical condition, Rosinski J. concluded that X was at risk of greater harm than Y.

Capacity and Medical Criteria

X was evaluated by several medical professionals over a period of approximately three months. Although these opinions were not unanimous, most of these assessors agreed that X was capable of choosing to receive MAiD, and that he met the relevant medical criteria. Rosinski J. gave particular attention to the last assessor’s report, which is quoted repeatedly in the decision.

Notably, the different opinions of the assessors could highlight some areas where the law on MAiD remains unclear to medical professionals. One respirologist, who did not believe that X faced a reasonably foreseeable death, remarked that:

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.

Final Thoughts

Rosinski J. found that the issue of an injunction in a situation where a party sought MAiD was novel, and determined that the parties would bear their own costs.

As previously noted, the law on assisted dying is in its infancy, heavy, challenging, and a still-developing area in elder law. WEL Partners addressed the topic of end-of-life planning, including MAiD, in its recent book on elder law, which can be found at: https://welpartners.com/resources/WEL-on-elder-law.pdf. WEL Partners will continue to monitor these issues with interest as the law continues to evolve.

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[1] Carter v Canada (Attorney General), 2015 SCC 5

[2] RSC 1985, c C-46

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.