Toronto Star

Woman seeks court ruling to allow her assisted death

Osteoarthr­itis has caused her worsening pain for decades

- ALYSHAH HASHAM COURTS REPORTER

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 crimi- nally 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 her to 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 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 nursepract­itioners, 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.”

 ??  ?? Lawyer Andrew Faith says lack of clarity in assisted death legislatio­n has chilling effect on medical care.
Lawyer Andrew Faith says lack of clarity in assisted death legislatio­n has chilling effect on medical care.

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