Physician Assisted Dying

In the May 28, 2016 judgement of case H.H. (Re) (2016 BCSC 971) the Honourable Chief Justice Hinkson ruled on whether to allow Physician Assisted Suicide to an adult woman suffering from a painful intolerable condition.

[5]             The petitioner is an adult woman who suffers from a constellation of medical difficulties. Her condition is known as mitochondrial encephalomyopathy, lactic acidosis, and stroke-like episodes, or by the acronym “MELAS”. In her affidavit in support of her petition, she described the onset of the symptoms of her syndrome beginning in 2000, leading to a stroke in December of 2014 and a second stroke in the following month. Her condition has required surgery, affected her memory and manifested itself in aphasia, hemiparesis, myoclonus, hemianopia and hearing loss. She is in pain as a result of her condition and fears experiencing another stroke. She states that her illness is incurable and that her physical and psychological suffering from her condition is intolerable to her.

At the time of the petition before the court, the petitioner had to meet the following criteria set out in para. 127 of the reasons in Carter 2015:

The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.

The petitioner was not challenged on competence, consent, or meeting the requirements of having a grievous and irremediable medical condition. The Attorney General argued on whether the petitioner’s condition could be alleviated by any reasonable treatments that are acceptable to her. The Attorney General pointed to a consultation report provided by an endocrinologist who had been involved in the petitioner’s care that listed statistics, treatment options, tests, etc..

[30]         In the result, the Attorney General submitted that:    

1. a)       There are at least tensions between the confident statements of prognosis and lack of treatment options in the original physician affidavits and the statements of the endocrinologist.
2. b)       The Attorney General also suggests that there is a question as to whether the petitioner is fully informed about the views of the specialist.
3. c)       Under Rule 22-1(4), in a chambers proceeding, evidence must be given by affidavit, but the Court may make a number of orders, including cross-examination (22-1(4)(a)) or examination of a witness (22-1(4)(b)), either before the Court or before another person as the Court directs.
4. d)       If it would assist the Court in coming to a full picture of the actual           medical situation, it would be appropriate to order examination of the physician affiants.

Chief Justice Hinkson ruled:

[31]         I do not agree that the speculative treatment options referred to by the endocrinologist are options that the petitioner accepts or should accept, or that they offer realistic prospects of alleviating her suffering.

[32]         I accept that the petitioner understands:

1. i)        her medical condition, diagnosis, prognosis, and her limited care options;
2. ii)        the risks associated with her treatment and the care options;

iii)       the risks associated with a physician-assisted death; and

1. iv)       the process that will be used to provide the physician-assisted death.

[33]         In the result I find that the cross-examination of the other physicians on their affidavits is unnecessary.

[34]         I am satisfied that the petitioner is aware of the treatments that are potentially available to her and accept that they are unacceptable to her.

[35]         In the result, I am satisfied that the petitioner meets all the criteria under para. 127 in Carter 2015. She will accordingly be permitted a physician-assisted death up to and including the fifth day of June 2016, if she so chooses.