Appeal heard in case of N.S. woman who wants to stop husband’s doctor-assisted death

HALIFAX — Lawyers for a Nova Scotia woman who is trying to stop her husband from receiving a doctor-assisted death told an appeals court judge Wednesday that the health-care workers who approved the man’s request had conflicting opinions about whether his death was foreseeable.

Justice Elizabeth Van den Eynden reserved her decision on the request to issue an injunction against a lower court ruling that allowed the 83-year-old man’s medically assisted death to proceed.

“This is a very time-sensitive matter,” Van den Eynden said during the hearing that was held by telephone. “I am going to give it my priority attention and endeavour to get a decision out as quickly as possible.” The judge didn’t indicate how soon her decision would be rendered.

Lawyers for the 82-year-old woman argued that a stay of the lower court decision is needed because they didn’t get to cross-examine medical experts.

The lawyers contend those experts offered conflicting opinions regarding whether the man should have been granted permission to die under federal law. They also argue the lower court judge erred procedurally when he rejected the injunction request.

A nurse practitioner and four physicians, including a psychiatrist, determined that the man met the criteria for a doctor-assisted death, which requires an applicant have a irremediable condition and be mentally fit to consent. The man’s request for medical aid in dying was approved in July.

According to court documents, the man says he is near the end of his life due to advanced chronic obstructive pulmonary disease, but his wife maintains his wish to die is based on anxiety and delusions.

Hugh Scher, one of the lawyers representing the woman, noted that a nurse practitioner and a respirologist were skeptical the man’s lung disease would cause a reasonably foreseeable death — which is also a requirement of the federal law.

“The court as an adjudicator is in a better position … to assess the conflicting information and evidence and to adjudicate the dispute to determine whether or not those criteria are met,” Scher told the judge over the phone.

In a written decision issued Aug. 14, Nova Scotia Supreme Court Justice Peter Rosinski concluded the man would suffer “irreparable harm” if an injunction were granted. He said the evidence he heard didn’t meet the threshold for an interlocutory injunction.

During Wednesday’s hearing, Scher said, “We seek a stay because the failure to allow for a judicial review of the errors in the court below, will ultimately result in the death of (the man) before we have a determination legally authorized as to whether or not he has capacity and or whether or not he meets the criteria.”

Philip Romney, representing the 83-year-old man, said he disagreed with the assertion that there were multiple conflicting medical reports. Romney said the health professionals followed all the guidelines before approving the procedure.

“Right now we have (the man) meeting the criteria and capacity and he’s entitled constitutionally to (a doctor-assisted death),” he said. “However, every day that’s put off there’s a chance he may lose capacity and end up suffering greatly in his last dying days.”

Last fall, the Quebec Superior Court ruled that parts of both the federal and Quebec legislation on doctor-assisted death were unconstitutional. That ruling struck down a provision that allows only individuals whose natural deaths are “reasonably foreseeable” to be eligible to end their lives with a doctor’s help.

The Quebec government simply allowed the provision to drop, but the federal government is still working on legislative changes.

The woman has also filed for a permanent injunction against her husband’s request for a doctor-assisted death. Van den Eynden said that case would proceed Sept. 24.

This report by The Canadian Press was first published Aug. 26, 2020.

Keith Doucette, The Canadian Press