Tuesday, September 10, 2019

Euthanasia court case (Lamb case) may soon be dropped based on new interpretations of Canada's euthanasia law.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Alex Schadenberg
Soon after the federal government legalized euthanasia and assisted suicide in Canada under the phrase Medical Aid in Dying, the BC Civil Liberties Association (BCCLA) launched a case on behalf of Julia Lamb, who lives with spinal muscular atrophy, to strike down the provision in the euthanasia law requiring that a person's "natural death must be reasonably forseeable."

The BCCLA argued that because Lamb's death was not reasonably forseeable, therefore she did not qualify for MAiD, under the law, and thus the law discriminated against her.

EPC had argued during the euthanasia debate that the "terminal illness" definition in the bill (natural death must be reasonably foreseeable) lacked definition and meaning.

A June 2017 Ontario Court decision defined "natural death must be reasonably forseeable" as not requiring the person's death to be imminent or within a specific time frame or be the result of a terminal condition.

EPC examined the legal challenge, in Lamb, and decided that it was necessary to intervene in the case. Recently EPC was given intervener standing in the case.

The BCCLA has now asked the Supreme Court of BC to adjourn the case. They claim that Julia Lamb now qualifies for euthanasia and she is no longer prejudicially affected by the impugned provisions of the law.

Lamb qualifies for MAiD based on a wider interpretation of Canada's euthanasia law. The BCCLA state:
Intolerable suffering is an entirely subjective determination in Bill C-14, and given her numerous sources of suffering, including psychological suffering in the form of need for alone time and anxiety over further loss of function, when she says she is suffering enough to proceed with MAID, that satisfies the criterion.

While there was more caution in using shorter prognoses for interpreting reasonably foreseeable natural death in the first year, following the CAMAP Reasonably Foreseeable Clinical Practice Guideline and the A.B. v. Canada determination some clinicians gained comfort with extending prognostic timeframes out to many years. At the time Ms. Lamb filed her civil claim, the reasonably foreseeable natural death criterion may have been a barrier to her access.

Therefore, if Ms. Lamb were requesting MAID now I believe she would be found eligible under the current eligibility criteria. She would not need to reach her feared state of invasive mechanical ventilation or to engage in voluntarily stopping eating and drinking (VSED).

Canadian physicians and nurse practitioners have been on a steep learning curve over the past three years in interpreting the Bill C-14 eligibility criteria. The law as it stands contains enough flexibility in the interpretation of the end of life criteria that it is not a barrier for practitioners who are comfortable with expanding access to MAID, while it serves to protect practitioners whose values do not align with removing end of life criteria for MAID. Some have commented that the flexibility in interpreting what constitutes a reasonably foreseeable natural death render the criterion meaningless as a safeguard for vulnerable patients. Rather than removing this criterion, this safeguard could be strengthened by the addition of specific prognostic requirements.
Why did the BCCLA ask for the case to be adjourned now?
  1. The interpretation of the provision "natural death must be reasonably forseeable" has changed since euthanasia was legalized in Canada.
  2. The BCCLA didn't want to take the chance of losing the case and enabling the court to define the provision "natural death must be reasonably forseeable" in a clear and more restrictive manner.
It is significant that in October 2017, the Supreme Court of BC ruled that new evidence could be introduced in the Lamb trial. Bringing new evidence has led to the case becoming complicated and expensive but it also opened the door to the court deciding to define to the provision "natural death must be reasonably forseeable."

I am concerned about Julia Lamb. On August 10, the apartment where Julia Lamb, and her husband Gregory lived was destroyed by a fire. An article published by City News 1130 states:
Julia and Gregory Lamb don’t know how they’ll survive the next year, after fire destroyed their Chilliwack home Saturday, leaving them, and many others with nothing but the clothes they escaped in.
“We don’t really have anything at this point,” Julia says, adding most of her expensive equipment was damaged in the fire, including her electric wheelchair charger and breathing machine.
It is possible that the fire that destroyed her medical equipment and belongings changed her feelings about euthanasia.

The phrase "natural death must be reasonably forseeable" remains undefined and lacks meaning in the law.


Audrey Laferriere said...

When I spoke to BCCL about Ms. Lamb I was told that she was suffering because she could or would not take pain medication. I did not know she had a husband, a house and a job. I would think that these are things to live for. And being a poster child for BCCL would make her a celebrity which bring interest to her life each day. I suspect she does not want to die, she only wants the security of Bill C-12 if necessary.

Nancy said...

Thank you, Audrey, & Alex! Thou Shall Not Kill People!