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HEALTH CARE PROFESSIONALS - Treatment, authorization for - Medical assistance in dying

Wednesday, October 07, 2020 @ 6:16 AM  


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Motion by the appellant for a stay pending appeal of an order refusing to grant an injunction and vacating an interim injunction that prevented the appellant’s husband from having access to assisted dying. The husband, 83, suffered from end-stage chronic obstructive pulmonary disease and from general frailty due to his age and overall medical condition. He had a significant reduction in function and was experiencing considerable physical and mental suffering. The appellant’s husband was found to have met the eligibility criteria for medical assistance to dying. The appellant then commenced legal proceedings in the court below to block her husband from accessing assisted dying. Ultimately, she sought a declaration that her husband did not meet the eligibility criteria and wanted a permanent injunction preventing his access to assisted dying.

HELD: Motion dismissed. The appellant failed to establish a stay was warranted. At least two qualified medical professionals determined that the husband met all the eligibility criteria, and he was afforded all the required statutory safeguards. There was no arguable issue on appeal. Most of the grounds read as arguments and submissions and did not articulate any specific alleged error. The remaining grounds offered general complaints about the assisted dying assessment process and alleged the husband did not meet the eligibility criteria. The husband would suffer greater harm if a stay were granted. The balance of convenience favoured the husband. To find otherwise would be to remove his right of medical self-determination, a right that was grounded in s. 7 of the Canadian Charter of Rights and Freedoms. To grant a stay in this case would be to deny his ability to access assisted dying. No exceptional circumstances warranted a stay.

Y. v. Swinemar, [2020] N.S.J. No. 282, Nova Scotia Court of Appeal, E. Van den Eynden J.A., September 4, 2020. Digest No. TLD-October52020005