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| Kim Gale |
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| Jessica Campolucci |
MAiD for mental illness/disability
As of now, conditions solely categorized as mental illnesses or disabilities do not qualify for MAiD under the current legislation. This exclusion is temporary, with a planned reassessment and potential legislative changes by March 17, 2027.
These legal frameworks and judicial decisions reflect the ongoing evolution of MAiD policies, balancing the autonomy of individuals with societal and ethical considerations to protect the most vulnerable.
Who has jurisdiction?
The federal government has jurisdiction over the Criminal Code and any amendments, whereas the provincial government has jurisdiction over health care.
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Positions and legal arguments
M.V. (M) was a 27-year-old woman, diagnosed with autism and associated behavioural disorders, whose father, W.V. (W), had initiated legal action to prevent her from receiving MAiD. M did not contest the facts presented by W but, rather, emphasized her approval for MAiD by two doctors. M provides no evidence to contest W’s facts, has not identified her medical condition and has not provided information about her symptoms and how it causes her to suffer. M’s only evidence is that she was approved by two doctors to receive MAiD. She states that W has no standing to contest her private medical decisions and/or clinical judgment of her doctors. Her decision to seek MAiD is personal and private and not reviewable by the court. M’s stance is rooted in the respect for individual autonomy and her right to die with dignity.
W’s position
In comparison, W questioned the adequacy of the medical assessments and argued that the doctors had erred in determining M’s eligibility for MAiD. Particularly contentious was the involvement of Dr. P, who provided a crucial “tie-breaker” assessment deeming M eligible for MAiD. W brought up the fact that M applied for MAiD twice and since she was “track 2,” she needed to pass two independent assessments. For her first application, she passed an assessment, and this assessment is believed to be done by Dr. P. She failed the other assessment. For her second application, she passed an assessment and then failed an assessment. AHS advised M that in the case of her second application, where there is a passed assessment and a failed assessment, she may be assessed by a third tie-breaker and arranged for her to be assessed by Dr. P, who acted as the tie-breaker and passed her assessment.
W challenged Dr. P’s independence and the administrative actions of AHS, pushing for a continuation of the interim injunction while a judicial review was conducted.
Capacity of M to choose MAiD
W stated that M does not have the capacity to choose MAiD, a crucial factor in determining eligibility for such a decision. The central legal issue was whether M, a person diagnosed with autism and associated behavioural disorders but with no intellectual or communicative impairments, was capable of making an informed decision regarding her own death.
Legal standards for capacity
The legal framework in Canada, as established by previous court decisions, posits that mental illness alone does not automatically negate an individual’s capacity to make decisions regarding their health. As stated in Starson v. Swayze, 2003 SCC 32, at para 10 “[m]ental Illness, without more, does not remove capacity and autonomy.” The law requires that a person must be capable of understanding the information relevant to the decision and the consequences of that decision.
In M’s case, the court took the position that the fact that she passed at least two assessments and that there is no evidence that she is not capable is proof of her capacity. W did not bring any Guardianship Application or seek a court-ordered capacity assessment of M.
Scope of judicial review
Judicial review in this context refers to the court’s power to examine the decisions made by administrative bodies or other lower courts to ensure they are lawful, reasonable and just.
Justiciability and standing
The court considered whether the issues raised by W were justiciable — meaning whether they were appropriate for judicial resolution. It also assessed W’s standing to bring the case, which involves determining whether he had a sufficient connection to the matter beyond emotional interest and whether addressing the issue in court would be a reasonable and effective way to resolve it. The court found that W raised a justiciable issue and had public interest standing, particularly focusing on the independence of Dr. P and whether his assessment complied with the legal requirements for MAiD under the Criminal Code and AHS policy.
Test for interim injunction: Three-part test
In determining whether to grant or overturn an interim injunction, courts apply a three-part test established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, which was reaffirmed as the correct test in cases such as Sorenson v. Swinemar, 2020 NSCA 62. In the Sorenson case, a wife sought an injunction to prevent her husband from obtaining MAiD, arguing that despite his capacity and legal representation, the implications were severe. The court utilized this tripartite test and decisively rejected the best interest test previously set out in Sweiss v. Alberta Health Services, 2009 ABQB 691.
The three-part test for an interim injunction requires the applicant to demonstrate:
- Serious issue to be tried: The applicant must prove that there is a legitimate issue that merits full trial consideration. This includes establishing a valid cause of action. For example, in the absence of a claim, a court might still exercise parens patriae jurisdiction to protect a vulnerable person by issuing an injunction on the grounds that an injury is anticipated, as indicated in E. (Mrs) v. Eve, [1986] 2 SCR 388. This provision applies particularly where there is a necessity to protect someone who cannot protect themselves, although it was decided there was no basis to invoke parens patriae jurisdiction in this specific instance. It was determined that W raised a serious issue of wrongful death as allowing Dr. P’s “tie-breaker” may be negligent or wrongful and contrary to the Criminal Code and AHS policy definition of “independence” (para 143).
- Irreparable harm: Justice Feasby agreed that the “…pain and grief of losing a child cannot be measured and that no amount of money damages would truly suffice” (para 148). It was determined that W would suffer irreparable harm if M suffered a wrongful death (para 148).
- Balance of convenience: This was addressed as balance of harms and this factor involves assessing which party would suffer greater harm from the granting or refusal of the injunction, considering all circumstances. Essentially, it compared W’s “profound grief” to M’s “… loss of autonomy and dignity” (para 149).
The court concluded that the balance of harms favoured respecting M’s autonomy and her right to make decisions about her own body, even in the context of life and death.
[151] The harm to M.V., if an injunction is granted, goes to the core of her being. An injunction would deny M.V. the right to choose between living or dying with dignity. Further, an injunction would put M.V. in a position where she would be forced to choose between living a life she has decided is intolerable and ending her life without medical assistance. This is a terrible choice that should not be forced on M.V. as attempting to end her life without medical assistance would put her at increased risk of pain, suffering and lasting injury.
[152] The importance of individual autonomy in medical decision-making, even over life and death, is well-established in our law: Carter, para 67. Time and again, the Supreme Court and other appellate courts in Canada have sided with individuals and their treatment choices over the wishes and concerns of others, including in the context of MAiD: Fleming; Carter; EF; AB; Sorenson. Bourgeois JA put it aptly in Sorenson at paragraph 150, where she concluded that Mrs. Sorenson “does not have a right to keep her husband alive against his wishes.” The balance of harms in the present case favours M.V. The choice to live or die with dignity is M.V.’s alone to make.
[152] The importance of individual autonomy in medical decision-making, even over life and death, is well-established in our law: Carter, para 67. Time and again, the Supreme Court and other appellate courts in Canada have sided with individuals and their treatment choices over the wishes and concerns of others, including in the context of MAiD: Fleming; Carter; EF; AB; Sorenson. Bourgeois JA put it aptly in Sorenson at paragraph 150, where she concluded that Mrs. Sorenson “does not have a right to keep her husband alive against his wishes.” The balance of harms in the present case favours M.V. The choice to live or die with dignity is M.V.’s alone to make.
Ultimately, the court set aside the interim injunction, ruling that the autonomy and dignity of M to decide her fate were paramount and that the judicial review did not warrant halting the MAiD process. Notably, this decision was stayed for 30 days to allow W to commence an appeal.
This decision underscored the principle that individuals have the right to make profound decisions regarding their health and end of life, reflecting a broad respect for personal autonomy in the Canadian legal landscape.
This is the second of a two-part series. Read the first article: The legal controversies of MAiD, part one.
Kim Gale is an estate litigation lawyer and principal of Gale Law, an estate litigation firm in Toronto. She can be reached at 416-868-3263 or kgale@galelaw.ca. She is the author and creator of the blog Law for Millennials — The Complete Beginners Guide to Law and is co-founder of diversity and inclusion group NCA Network. Jessica Campolucci is a Canadian graduate who obtained her degree in Business Management from York University in Toronto, Ont., and is a 2023 graduate of the Paralegal Education program at Humber College in Toronto. She is currently a licensed paralegal with the Law Society of Ontario. As a paralegal at Gale Law, she assists on all issues related to estates and has also assisted clients in matters before the Small Claims Court and administrative tribunals.
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