The Nova Scotia Court of Appeal decided Friday to dismiss the request for a stay from a woman who tried to prevent the medically assisted death of her husband.
The woman, who Global News is identifying as Katherine, appealed a lower court decision that rejected her request for an interim injunction against her husband of 48 years.
The 83-year-old man’s request for an assisted death was approved in July.
Justice Elizabeth Van den Eynde’s decision clears the barriers for medical assistance in dying (MAiD) for the women’s husband.
According to court documents, the man says he is near the end of his life due to advanced chronic obstructive pulmonary disease (COPD), but his wife maintains his wish to die is based on anxiety and delusions.
Katherine requested a stay of the lower court’s order on Aug. 14, in a bid to halt the decision on the order until a decision is reached on appeal.
Friday’s decision from Justice Elizabeth Van den Eynde says Katherine had to convince the court “she will suffer greater harm if the stay is not granted than her husband Mr. X will suffer if the stay is granted.”
Katherine argued if her husband chooses to exercise his right to die before her appeal is heard, the appeal would be at a stage of irreparable harm.
The man was diagnosed with COPD in approximately 2003, the decision reads. In addition, he suffers from general frailty “due to his age and overall medical condition.”
The decision also indicates the man is at risk of falling and injuring himself, that he is experiencing shortness of breath, fatigue, a sense of instability and difficulty concentrating.
“Mr. X has had a significant reduction in function and has been experiencing considerable physical and mental suffering,” Van den Eynden said in her decision.
The assessment report of his eligibility for MAiD also stated he was “so distressed by the delay in accessing MAiD arising from (Katherine’s) actions he has contemplated suicide as an alternative.”
However, the assessment doctor noted the man clearly explained he wanted to end his suffering due to physical symptoms, “rather than a desire to end his life.”
The decision says the man pointed out the decision to pursue MAiD is his constitutionally-protected right.
“It is his decision to make — not his spouse’s,” reads Van den Eynden’s decision.
“In conclusion, and with respect, in these circumstances there may be some question whether (Katherine) will suffer irreparable harm. However, even accepting she would, there is no doubt in my mind that, on balance, Mr. X would suffer greater harm if a stay were granted.”
Approving the stay, the judge said, would be further denying the man’s access to MAiD. The court has decided there were no exceptional circumstances to do that.
The case could still go to a formal appeal hearing. It is scheduled to do so on Sept. 24.
However, the man is still allowed to go through with MAiD in the meantime and cannot be legally stopped.