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Wrestling with media’s access in assisted death

Thursday, March 24, 2016 @ 8:00 PM | By Cristin Schmitz

How much public scrutiny is in order when a judge is deciding life and death?

Over the past month, separate rulings on confidentiality motions, brought by two terminally ill people in Alberta and Ontario seeking court approval for a physician-assisted death, granted extensive privacy protections, including anonymity for the applicants, their families and their doctors.

On Feb. 25, Alberta Queen’s Bench Justice Sheilah Martin, in H.S. (Re) [2016] ABQB 121, went so far as to exclude the public and media from her courtroom during the hearing attended by the ALS-stricken applicant. The judge reasoned that her detailed post-hearing written reasons explaining why the paralyzed Calgary woman, with no more than six months to live, met the legal criteria for a physician-assisted death would achieve the necessary accountability and transparency, and respect “the fundamental principles behind the open court principle.”

On March 7, Ontario Superior Court Justice Thomas McEwen granted anonymity to A.B., an 80-year-old applicant with advanced aggressive lymphoma, and to his family and doctors; banned publication of their identifying information; and sealed the court file. Justice McEwen also accepted the applicant’s “reasonable” proposal, made following discussions with media counsel, to file a publicly available, redacted copy of all the evidence, documents and pleadings, including an explanation for the redactions: A.B. v. Canada (Attorney General) [2016] ONSC 1571.

The lawyers involved in A.B., and X.Y., another physician-assisted death application pending in Ontario, have agreed to an informal protocol for best practices on confidentiality motions, said Peter Jacobsen of Toronto’s Bersenas Jacobsen Chouest Thomson Blackburn LLP, counsel for CBC, CTV, the Globe and Mail and Postmedia in all three cases.

“This is really important because, given the very grave nature of the orders that the courts are being asked to make, there does need to be as much oversight as possible, yet at the same time we want to preserve the rights of privacy in those persons who have a valid claim to it,” he told The Lawyers Weekly.

Jacobsen believes the “consistent practice” that’s been followed so far in the Ontario should be “highly persuasive” across Canada, since it is based on Supreme Court jurisprudence (Dagenais/Mentuck) that governs all incursions on the open court principle. “In terms of the transparency, I don’t see why it would be any different elsewhere,” he observed. “This process works well.”

The practice agreed to by Ontario counsel includes notice to the media; no closed courtroom; and supplying media with a redacted application record (including explanations for the redactions) in advance of the hearing of the Carter application, so that media can challenge the redactions in court, if they want.

“We certainly shouldn’t be seeing ex parte or in camera hearings,” Jacobsen said. “We certainly shouldn’t be seeing situations, as happened out in Alberta, where the media is not given any notice. We certainly shouldn’t be seeing situations where the media and the public are not given explanation for the redactions.”

However, counsel who represented H.S., Olivier Fuldauer of Calgary’s Courtney Aarbo Fuldauer, defended Justice Martin’s decision to close the courtroom at his client’s request. “We don’t need public oversight of assessing people’s medical records and mental competence,” he told The Lawyers Weekly. “What we need is public oversight of process, and [the judge’s] reasons for judgment are very good about that. There is very little that is in the court record, that is relevant to process, that isn’t in the reasons for judgment. So all the stuff that you and I would hope would remain confidential about our medical records — that stuff stays confidential. [But] all of the salient facts are summarized in the decision. So I think the judge…took 20 pages [of reasons] in an effort to ensure that there was a good public sharing about the process.”

Osgoode Hall Law School professor Jamie Cameron emphasized that “open courts are a pillar of the justice system, and can only be compromised in the most compelling and exceptional circumstances,” according to Charter jurisprudence. “Closing a courtroom during a Carter [assisted death] application violates this principle at a critical time in the pathway of an issue that is currently under lively debate in Parliament and the public,” she remarked. “In my view it is absolutely necessary for these proceedings to be transparent.”

However the constitutional scholar noted that other privacy orders which depart from the open court principle, such as anonymization of people’s names, raise a “tougher” issue in such cases. In that respect the approach taken by Ontario counsel, “offers a solution that is fair and compassionate to those who seek the court’s assistance, but does not unduly compromise the open court principle,” Cameron said by email.

Jacobsen’s clients did not oppose the applicants’ request to keep their names, or their family members’ names, secret. However the media coalition did initially balk at keeping secret the names of the involved physicians, partly due to the prospect that “death doctors” could rubber-stamp requests for medical-aid-in-dying.

Fuldauer said he doesn’t think death doctors running amok is “a real concern,” given that judges are currently the gatekeepers, and that the new law Ottawa will roll out in the coming weeks is considered likely to require opinions from two independent doctors.

Justice McEwen also noted that this “prospective” concern did not confront the court in A.B. The judge also pointed out that courts hearing such applications will be privy to the doctors’ identities, and can ask about the physicians’ track record in such cases.

In the cases thus far, Jacobsen said the individual doctors involved have variously indicated they don’t plan to assist with many (or any) more deaths. “They’ve also explained why they need confidentiality,” he said. “They’re very concerned about others reacting to the fact that they’re involved in assisted death…There’s quite a contingent of individuals out there who oppose the process, and [doctors] are concerned about being stigmatized themselves, or being criticized, or their family being harassed as a result of them being involved.” There is also underlying concern about their safety.

In the first Canadian case to culminate in a physician-assisted death, H.S., in the final stage of ALS, requested the panoply of confidentiality orders, at the outset of the hearing on the merits — without advance notice to the media. Justice Martin granted an in camera hearing; sealed the court file and affidavits; issued a publication ban on the applicant’s name; and used initials to protect the identities of H.S., her doctors, and “others involved in this matter.”

Justice Martin said it would have been preferable had the confidentiality matters been addressed when the originating motion was filed, in order to allow the motions judge to consider whether there was any need for preliminary orders. “However, as this is the first application of its kind in this province and the matter is time sensitive, I am prepared to deal with these requests in the context of the overall hearing.”

Justice Martin said she was “very mindful of the important reasons underlying the open court principle.” However “in the circumstances, I determined that Ms. S’s privacy, dignity and autonomy were the more important interests and the hearing was held in camera,” the judge wrote. “The application pertains to Ms. S’s medical state and to the fundamental life choice she wishes to make. Nothing could be more personal and, in my view, the need to protect Ms. S’s privacy outweighs the benefit of an open courtroom in the circumstances of this case. I also note that the subject of the hearing, being her medical diagnosis and current physical condition, falls within the category of information that ordinarily would be protected under privacy legislation.”

The judge said she hoped her written reasons, which detailed the evidence supporting the conclusion that H.S. met the Supreme Court-imposed criteria for a physician-assisted death, “strikes the appropriate balance between the salutary and deleterious effects of such an order and achieves the openness and public access” mandated by the top court.

In A.B., the applicant did not seek an in camera hearing. While he did seek a sealing order of the court file, including the motion record filed for the preliminary confidentiality motion, his counsel proposed that the applicant be allowed to deliver a redacted application record that would excise only information identifying him, his family, the responding physicians and other healthcare providers. The applicant would file the redacted version of the application record with the court in the usual way, and would explain the nature of the redactions, thus enabling the media respondents to challenge the nature and scope of the redactions before the application judge.

The media did not oppose an order permitting the applicant to proceed anonymously and banning publication of his identity or that of his family members. They did oppose providing anonymity to the respondent physicians involved in the man’s care.

The physicians’ wishes to keep their identities private for personal and professional reasons “are entirely reasonable, in my opinion, given the publicity and controversy surrounding physician-assisted death,” Justice McEwen observed. “I accept the proposition that physicians might be less likely to provide assistance to terminally ill patients if their identities were known. Failing to protect the confidentiality of the physicians’ identities could well prevent persons from seeking Carter applications in the future, and it may prevent doctors from participating — this is a public interest of great importance in these circumstances and justifies the moderate proposal of the applicant of a redacted record with explanations.”