A Calgary judge will decide whether a review of a local woman’s application — and approval — of a Medical Assistance in Dying (MAiD) request is needed.That could have legal implications for the implementation of the entire policy and alternatively, the right of adults to make medical decisions for themselves.Add in the role — or culpability — of medical professionals and government bureaucrats in making that determination. Hanging in the balance is literally a young woman’s life or death..“MAiD is a medical procedure at the end of the day,”AHS lawyers.The Calgary woman, who can only be referred to by the initial ‘M’ under a court ordered publication ban, had applied and was granted a request to die last November before her father — ‘W’ — applied and received an injunction against allowing Alberta Health Services (AHS) to perform the death, which he insists would amount to wrongful death or even negligent homicide.Under the existing MAiD rules, ‘M’ would have been eligible for the medical system to take her life on February 1 before her father intervened and was granted an injunction on March 1.Although ‘M’ is of legal age, ‘W’ insists she doesn’t have the mental capacity capable of making decisions regarding her life, much less death. That’s because she has previously been diagnosed with autism and ADHD. In 2021, a neurological assessment for an undetermined condition came back as ‘normal’.She’s presently unemployed and living in the family home..“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”Section 7, Canadian Charter of Rights.In response, ‘M’ argues that denying her right to medical assisted death with prolonged litigation is causing ‘undo’ suffering under the Charter of Rights and Freedoms. Without providing any evidence as to the nature of her condition, counsel argued that her parents don’t have any right to block her medical ‘autonomy’, independence or right to self determination.And though it isn’t explicitly a Charter of Rights challenge or rebuttal, it has broader implications for Section 7 that states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”Although her condition was undisclosed, counsel for the father disclosed that medical professionals had not determined it was not ‘irreversible’ or ‘inevitable’ in nature. In fact, ‘M’ had to go to three doctors in order to gain the two approvals needed to meet the application requirements and gain subsequent approval. At least one doctor determined she didn’t meet the legal definitions or criteria for doctor assisted suicide..At issue is whether clinical decisions — like death — are subject to judicial review.That’s why ‘W’s’ injunction wasn’t filed against the federal government, but rather, AHS which ‘W’ argued ultimately has the administrative authority to either approve or deny the ‘procedure’ by virtue of the fact that it regulates the medical system.The gist of his argument is that because his daughter isn’t eligible under the MAiD legislation and that AHS isn’t providing the required administrative oversight — which would amount to “wrongful death.”For its part, AHS said it merely provides the “service” as set out in federal law under the policy and that it has no right — or responsibility — to question doctors’ recommendations. “Physicians are not employees of AHS… MAiD eligibility is not an AHS decision,” it said..The distinction is important, because the MAiD legislation doesn’t provide doctors a right to kill people, but rather, grants an exemption from Criminal Code provisions that meet the conditions for homicide. To wit, aiding and counselling suicide remains illegal under the law even though euthanasia is legal.In a macabre twist of circumstance, it also raises the question of whether wrongful death provisions could be applied after the fact, or whether “administrative accountability” would be possible or even relevant..Although Justice Colin Feasby won’t be making an immediate ruling, he said he was sympathetic to the notion that judges shouldn’t question the professional opinions of medical professionals — and in cases such as abortion, can’t — but also questioned whether the processes for approving something as profound as death were sufficient to consider whether dying was just like any other medical ‘procedure’ or service.In response, counsel for ‘M’ argued that MAiD was no different than any other end of life medical or ‘pull the plug’ decision routinely made by doctors nearly every day.“MAiD is a medical procedure at the end of the day,” they said.More hearings into the matter will be scheduled.
