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77-year-old seeks court declaration to allow her medically-assisted death

Toronto Star logo Toronto Star 2017-06-18 Alyshah Hasham - Staff Reporter
Lawyer Andrew Faith is asking a Superior Court judge to declare whether a 77-year-old GTA women meets the requirement to allow her doctors to help her die without fear of prosecution for murder. © COLIN PERKEL / THE CANADIAN PRESS FILE PHOTO Lawyer Andrew Faith is asking a Superior Court judge to declare whether a 77-year-old GTA women meets the requirement to allow her doctors to help her die without fear of prosecution for murder.

A 77-year-old GTA woman in “intolerable suffering” from incurable osteoarthritis wants medical assistance to die but can’t find a doctor willing to do it.

The only issue is whether her natural death is “reasonably foreseeable” — a controversial restriction in the doctor-assisted dying legislation introduced last year.

On Monday she will take the unusual step of asking a Superior Court judge to declare whether she meets the requirement, allowing her doctors to help her die without fear of prosecution for murder and providing clarification that could help others in the same position as her.

“I will remain here in this room forever, in pain, until someone allows me to die,” she said in an affidavit filed with the court. “I have no future.”

She was referred to a doctor earlier this year who found that she met all the criteria, including that her natural death was reasonably foreseeable, and agreed to perform the procedure. Eventually, as required by law, she found a second doctor who said she was eligible.

While her condition is not terminal and she could die from any number of causes, she does not have long to live given her age, her incurable, debilitating illness and declining health, the doctor found according to an affidavit.

But by then the first doctor had changed his mind out of concern he could be charged with murder.

Since at least one other doctor has disagreed she meets the requirement of reasonable foreseeable death, he is “uncomfortable performing the procedure” because if he is legally incorrect he could be criminally prosecuted, he said in an affidavit.

The identity of the woman and her health-care providers is under a publication ban.

The mother of three was diagnosed with osteoarthritis at the age of 43 and the pain kept getting worse, according to her affidavit. She would put a frozen bag of peas on the back of her chair “just to be able to sit down.”

Nine years later she quit her job because the pain left her unable to function. She went on to have both her knees and her right hip replaced and a rod inserted into her left leg and lower back.

She moved to a nursing home for full-time care in 2011 but by 2016 she could no longer participate on committees or even eat in the dining room because it was too painful to sit up at a table.

She describes the pain in her knees, hips, back, fingers and toes like the stabbing of a knife, causing to her wake up screaming in the middle of the night. Even swallowing food and her medication is unbearable.

“I am currently taking fentanyl, morphine and prednisone but this hardly takes the edge off the pain I experience,” she said.

She says three doctors have told her there is nothing more they can do. Her condition is irreversible and she will just continue to get worse.

She decided in January of 2017 she wanted to die with medical help.

“I have lived a good life and a long life,” she said. “But I am now nearing 80 years old. I am at the point where I can say I have done my duty to the world and to the people I love. I simply want to quietly move out of life, end my intolerable suffering and go home to God.”

In documents filed with the court, the woman’s lawyer Andrew Faith stressed the chilling effect the lack of clarity has on access to medical care.

He pointed to a submission made to the Senate committee by Dr. Douglas Grant, the president of the Federation of Medical Regulatory Authorities of Canada.

“This is legal, not medical, language, and I think we just heard that the lawyers don't even like it. The language is too vague to be understood or applied by the medical (profession) and too ambiguous to be regulated effectively.”

Faith argues this case is similar to that of Kay Carter, a Vancouver woman whose case led to the landmark Supreme Court of Canada ruling on assisted dying. Carter did not have a terminal condition, but had spinal stenosis, was in irreversible decline, and suffered from extreme pain. She was 89 when she went to Switzerland in 2010 to have a medically-assisted death.

The Minister of Justice has specifically said Carter would be eligible under the legislation, Faith wrote.

In their response, the Ministry of the Attorney General of Ontario said the court should not issue the declaration requested because judicial pre-authorization is “neither necessary nor advisable.”

Parliament gave doctors and nurse-practitioners, not judges, the responsibility of determining whether the criteria for medically-assisted dying has been met, Crown lawyer Josh Hunter wrote in a factum submitted to the court.

He also said such a declaration would improperly interfere with prosecutorial discretion by deciding in advance whether or not the action is criminal.

The woman at the centre of the application said in her affidavit that a declaration from the court is her only hope.

“Every day this drags on is another day of terrible suffering for me,” she said.

“Not only is my suffering intolerable to me but so is my quality of life. I am the kind of person that has always kept busy and always found meaning in helping other people,” she said. “I am no longer able to do the things that brought me joy and made my life worthwhile.”

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