Alberta Court Grants First Exemption for Physician-Assisted Death

On Monday, March 1st, 2016, Madam Justice S. L. Martin of the Court of King's Bench of Alberta granted the application of a Calgary woman to seek physician-assisted death . The application arose as a result of the Supreme Court’s offer of personal exemptions from a four month extension of the suspension of its declaration that provisions of the Criminal Code of Canada forbidding physician-assisted death were unconstitutional.

The application was brought by, and on behalf of, a retired psychologist suffering in the end stages of ALS, which is a degenerative neurological disease which causes increased weakness of the majority of the body’s muscles ultimately causing paralysis. The disease is progressive, not treatable and ultimately terminal.

The Court had many questions to answer before dealing with the primary issue, that being whether the applicant was a competent adult person who consents to the termination of her life, suffering from a grievous and irremediable medical condition which causes enduring, intolerable suffering in her particular circumstances which could not be alleviated by any treatment acceptable to her. Specifically, given that the Alberta Courts (unlike Ontario and British Columbia) had not provided any specific guidelines for applications like this, preliminary issues such as appropriate notice; jurisdiction; confidentiality; and sufficiency of evidence needed to be addressed.

The Court found that although the application was not technically a constitutional one, notice to the provincial and federal attorneys general was appropriate, following guidance from the practice guidelines in Ontario. It also found that while in some circumstances notice to family members may be appropriate, in this instance that was not the case.

In terms of jurisdiction, the Court was faced with the prospect of the applicant seeking assistance in death at a private location in British Columbia. Nevertheless, the Court found that the residence of the applicant, not the intended location of death, was the governing principle and found that it had the necessary jurisdiction to grant the Order.

On the issue of confidentiality, while the Court was mindful of the important reasons underlying the principle of open court, it felt that the privacy interests of the applicant (given the sensitive nature of the proceedings and the evidence) outweighed the interests of the public, and felt that the issuance of written reasons (with identities concealed) would satisfy any public need.

On the issue of the nature of the evidence, the Court relied on the Quebec legislation dealing with assistance in dying; the Ontario and B.C. Practice Guidelines; but most importantly, the decision of the Trial Judge and the Supreme Court of Canada in the Carter v. Attorney General decision in reviewing the nature of the evidence. It determined that unlike Quebec or Ontario, no psychiatric evidence was specifically required in the absence of concerns regarding mental illness or capacity. It also determined that there were no hard and fast requirement for affidavit (i.e. sworn) evidence from physicians, although that would be preferable. She did find that it was necessary to have evidence (even in the form of statements) from the physicians assessing the patient, but not necessarily the physician(s) who would actually provide the assistance in death as she felt that a “flexible” approach to the evidence should be taken.

Finally, it determined that the assessment of competence was required to be relevant as of the time of the granting of the order, not necessarily at the time of death (although in this regard, she was comforted by the fact that the assisted death was intended to occur within a relatively short time frame).

Justice Martin was satisfied on the evidence provided that the applicant met the tests outlined by the Supreme Court in Carter vs. Canada (Attorney General) and granted the application.

The Order granted was remarkable, in that the Judge extended the protection from the Supreme Court’s declaration not only to the physicians involved in the assessment and the actual act of assistance but as well to the pharmacists who provided the medication and (although not specifically required) potentially to other caregivers such as nurses who, collectively, were part of the “physician-assisted death”.

For more information on issues arising from the Carter vs. Canada (Attorney General) decision, contact Jon Rossall, Q.C. or any other member of the McLennan Ross Health Law Practice Group.