A bid by a Nova Scotia woman to stop her 83-year-old husband from receiving a medically assisted death was rejected Friday by the Nova Scotia Court of Appeal.
The unanimous ruling from a three-judge panel said the court has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment.
It said those decisions should be left to approved health-care assessors.
“It is clear Parliament fully intended, provided it is undertaken in a manner consistent with the law, the determination of (medical assistance in dying) eligibility should rest with authorized medical and nursing professionals, not with judges,” Justice Cindy Bourgeois wrote on behalf of the panel.
The Appeal Court said Katherine Sorenson, 82, had not raised a “justiciable issue” and it dismissed her appeal of a lower court ruling that had rejected her request for a temporary injunction against her husband, Jack Sorenson.
Previous rulings had not named the couple, although no publication ban was in place, but Bourgeois chose to use their names in her decision in respect of the open court principle.
The judge noted that Nova Scotia has not enacted legislation that contemplates intervention by the courts in the assessment of eligibility for the life-ending procedure.
“I am also satisfied the institutional capacity of the courts is not well-suited to respond to the time-sensitive nature of challenges advanced in relation to . . . eligibility assessments,” the judge said.
Katherine Sorenson maintained her husband’s wish to die was based on anxiety and delusions.
However, in an Aug. 14 ruling, Nova Scotia Supreme Court Justice Peter Rosinski concluded the man, who has end-stage chronic obstructive pulmonary disease, was entitled to the procedure because he met the criteria under federal law and he would suffer “irreparable harm” if an injunction were granted.
The woman’s lawyer, Hugh Scher, had argued before the court that there were conflicting medical reports about her husband’s health condition and about his capacity to seek an assisted death. Scher also noted there had been no opportunity to cross-examine medical experts in lower court in order to be “assured of their reliability.”
However, Bourgeois said the assisted death policy of the Nova Scotia Health Authority demonstrated that its approach was “entirely consistent with Parliament’s response.”
“A review of the legislation relied upon by Mrs. Sorenson does not support her view the courts should or must entertain the type of challenge she has launched,” Bourgeois said.
The court also refused to accept that she has a private interest standing to challenge her husband’s eligibility for an assisted death because of her status as his spouse.
“Undoubtedly, she loves him deeply and wants what she feels is in his best interests,” Bourgeois wrote. “The thought of losing him must be very painful for her. However, these feelings do not give her standing to challenge the determination he meets the eligibility criteria for (medical assistance in dying.)”
The judge said the Supreme Court of Canada has recognized that personal autonomy in medical decision-making was to be “respected and protected,” and permitting Sorenson to question the outcome of her husband’s assessment would fail to acknowledge “this fundamental right of her husband.”
In an emailed statement Friday, Scher said the decision calls into serious question the “arbitrary application of the criminal law” in a way that puts vulnerable people at risk.
“It would be criminal to subject terminal treatment decisions under (medical assistance in dying) to less protection than any other treatment decision,” he wrote. He added later that he has instructions to seek leave to appeal the ruling to the Supreme Court of Canada.
The husband’s lawyer, Philip Romney, declined comment when reached by phone on Friday.
The appeal court also ordered the woman to pay $2,500 in court costs to her husband, and another $2,500 to the Nova Scotia Health Authority and a nurse practitioner named in the court action.
This report by The Canadian Press was first published Oct. 2, 2020.
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