Court of Appeal decides that the court has no role to review euthanasia (MAiD) assessments even when assessments differ.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

When Canada's parliament passed Bill C-14 legalizing euthanasia (MAiD) the legislation required two doctors or nurse practitioners to agree that a person qualified for death by lethal injection. As long as two euthanasia assessments approve death, it doesn't matter if several euthanasia assessments determine that a person doesn't qualify under the law.

Katherine's Sorenson believes that her husband of 48 years, who is approved for (MAiD) euthanasia even though he received conflicting assessments, is not dying, has questionable capacity, and is delusional about his medical condition.

Katherine's lawyer, Hugh Scher, sought an injunction to prevent the euthanasia death based on an assessment by a physician, an affidavit from a physician who has known her husband for years, and Katherine's affidavit. These affidavit's state that her husband is not terminally ill, that he has questionable capacity to decide and he has "delusional" beliefs concerning his medical condition.

Today, the Nova Scotia Court of Appeal decided that:

there is no role for courts in the review of MAiD eligibility assessments. ... Parliament considered, and rejected a role for judges in the pre-approval or review of MAiD eligibility assessments. Parliament made clear that the role rests with approved healthcare assessors.

In other words, if two doctors or nurse practitioners approve a death by lethal injection, that it doesn't matter that other doctors or nurse practitioners assessments disagree that the person qualifies to be killed under the law.

Further to that, if a euthanasia assessment is false, such as, if a MAiD assessor accepting a person's delusional beliefs about their medical condition, that there is no legal way to challenge the assessment, even if the challenger has been married to that person for 48 years.

Katherine Sorenson

Katherine stated:

I am committed to seeing this matter through for the benefit and protection of my husband of 48 years and for the benefit of others across Canada in the public interest, who may lack capacity and who otherwise will remain unprotected by a MAID law that clearly lacks adequate safeguards to protect those who are vulnerable.

Katherine's lawyer Hugh Scher noted that; 

Doctor shopping is a serious concern that must be addressed. Court or tribunal oversight are essential in those rare cases where there are multiple conflicting medical reports over the core issue of capacity which is an essential condition of eligibility for MAID.

Hugh Scher

Hugh Scher also noted that: 

The federal MAID law requires application in accord with provincial laws including those regarding consent and capacity.  Where capacity is at issue provincial consent and capacity laws across Canada call on courts or tribunals to resolve conflicts and disputes over capacity. 

It would be criminal to subject terminal treatment decisions under MAID to less protection than any other treatment decision. 

Toronto lawyer John Campion stated that: 

A more nuanced test for injunctions should be developed for end of life cases as the present tests of serious issue to be tried, irreparable harm and balance of convenience are inadequate and/or obviously determined in favour of the applicant (wife in this case) when the result is so final - death. The process should identify the single issue- in this case capacity - and design a process that brings the central concern into timely focus with evidence and argument as part of the balance of convenience... 

Lawyer Kate Naugler noted that: 

The dignity and autonomy of all Canadians is threatened where a person who lacks capacity is permitted to access MAID.

Katherine Sorenson and her legal team have not yet decided their next course of action.

The Euthanasia Prevention Coalition needs your help. EPC is paying the legal bills, but in turn, we need your financial support.

Donate to the Euthanasia Prevention Coalition (Link) by:

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More information on this story.

• Nova Scotia court decides that a man who is not dying and may be delusional can die by euthanasia (Link). 
• Woman goes to court to prevent her husband's assisted death (Link). 
• Nova Scotia woman seeks to prevent her husband's death by euthanasia (Link).