H. H. (Re) in the matter of carter V. Canada



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Case Name:

H.H. (Re)

IN THE MATTER OF Carter v. Canada

(Attorney General), 2016 SCC 4

Re: H.H., Petitioner
[2016] B.C.J. No. 1113
2016 BCSC 971
Docket: S163850
Registry: Vancouver


British Columbia Supreme Court

Vancouver, British Columbia
C.E. Hinkson C.J.S.C.
Heard: May 2 and 28, 2016.

Judgment: May 28, 2016.
(42 paras.)
Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Life, liberty and security of person -- Personal autonomy -- Remedies for denial of rights -- Legislative remedies -- Constitutional exemption -- Application by HH for a declaration that she satisfied the criteria for the constitutional exemption for a physician-assisted death allowed -- The applicant suffered from a constellation of medical conditions, known as mitochondrial encephalomyopathy, lactic acidosis and stroke-like episodes (known by the acronym MELAS) -- The evidence established that the applicant was a competent adult, clearly consented to the termination of her life, suffered from a grievous and irremediable medical condition, and was enduring intolerable suffering -- Canadian Charter of Rights and Freedoms, s. 7; Criminal Code, ss. 14, 241(b).
Criminal law -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Legal rights -- Life, liberty and security of person -- Personal autonomy -- Remedies for denial of rights -- Specific remedies -- Constitutional exemption -- Application by HH for a declaration that she satisfied the criteria for the constitutional exemption for a physician-assisted death allowed -- The applicant suffered from a constellation of medical conditions, known as mitochondrial encephalomyopathy, lactic acidosis and stroke-like episodes (known by the acronym MELAS) -- The evidence established that the applicant was a competent adult, clearly consented to the termination of her life, suffered from a grievous and irremediable medical condition, and was enduring intolerable suffering -- Canadian Charter of Rights and Freedoms, s. 7; Criminal Code, ss. 14, 241(b).
Health law -- Health care professionals -- Scope of practice -- Authorized acts and functions -- Treatment, authorization of -- Consent -- Particular professions -- Doctors -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Application by HH for a declaration that she satisfied the criteria for the constitutional exemption for a physician-assisted death allowed -- The applicant suffered from a constellation of medical conditions, known as mitochondrial encephalomyopathy, lactic acidosis and stroke-like episodes (known by the acronym MELAS) -- The evidence established that the applicant was a competent adult, clearly consented to the termination of her life, suffered from a grievous and irremediable medical condition, and was enduring intolerable suffering -- Canadian Charter of Rights and Freedoms, s. 7; Criminal Code, ss. 14, 241(b).
Application by HH for a declaration that she satisfied the criteria for the constitutional exemption for a physician-assisted death. The applicant suffered from a constellation of medical conditions, known as mitochondrial encephalomyopathy, lactic acidosis and stroke-like episodes (known by the acronym MELAS). The applicant's symptoms began in 2000; she suffered a stroke in 2014 and another one month later. The applicant claimed that she was in constant, intolerable pain. The Court received affidavits by the applicant, her husband, her general practitioner, her palliative care physician and Dr. Weibe, a consulting psychiatrist. All claimed that the applicant was capable of consent and had the requisite mental capacity to make the decision. The medical professionals involved agreed that the applicant had exhausted her treatment options to alleviate her condition. The respondent Attorney General pointed out that one endocrinologist claimed that some treatment options would be possible, and objected to the application.

HELD: Application allowed. The evidence established that the applicant was a competent adult, clearly consented to the termination of her life, suffered from a grievous and irremediable medical condition, and was enduring intolerable suffering. The speculative treatments proposed by the endocrinologist were not options that offered realistic prospects of alleviating the applicant's condition. Accordingly, the application for a constitutional exemption allowing a doctor-assisted death was allowed.
Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 7

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4(1), s. 5(1), s. 56

Criminal Code, R.S.C. 1985, c. C-46, s. 14, s. 241(b)
Counsel:

Counsel for the Petitioner: G.E. Edwards.

Counsel for the Attorney General of British Columbia: E. Ross and G. Morley.

Reasons for Judgment


  1. C.E. HINKSON C.J.S.C.:--

Introduction

1 Sections 14 and 241(b) of the Criminal Code, R.S.C. 1985, c. C-46 prohibit any person from aiding another person to commit suicide by providing that:


  1. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.




  1. ...




  1. Every one who




  1. aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

2 On February 6, 2015, the Supreme Court of Canada released judgment in Carter v. Canada (Attorney General), 2015 SCC 5 [Carter 2015], declaring at para. 147 that:


  1. Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that 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.

3 The declaration by the Court was then suspended for 12 months until February 6, 2016, to permit Parliament to create a legislative response to the declaration. On January 15, 2016, on a motion by Canada for a six-month extension of the suspension of the declaration, a majority of the Supreme Court of Canada extended the suspension of the declaration by four months from the date it was set to expire, exempting the province of Quebec from the four-month extension in reasons for judgment indexed at Carter v. Canada (Attorney General), 2016 SCC 4 [Carter 2016].

4 The majority further ordered that, during the four-month extension period, an exemption from the extension was granted to those who wished to exercise their rights so that they could apply to the superior court of their jurisdiction for relief in accordance with the criteria set out in para. 127 of the reasons in Carter 2015, which reads:


  1. 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.

Background

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.

6 She seeks the relief contemplated by the Supreme Court of Canada's decision in Carter 2016 to permit her to end her life by means of a physician-assisted death.

7 In her petition, H.H. set out a form of the order she seeks in the following terms:


  1. a declaration that she comes within the scope of the constitutional exemption granted by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4;




  1. Dr. Ellen Wiebe is authorized to provide H.H. with a physician-assisted death, in the form of voluntary euthanasia by lethal injection, at H.H.'s request and in compliance with the guideline issued by the College of Physicians and Surgeons of British Columbia (approved January 21, 2016 and entitled Interim Guidance - Physician-assisted Dying) ("College Guideline").




  1. Either one of two registered nurses who have sworn affidavits in these proceedings is authorized to assist Dr. Wiebe with H.H.'s physician- assisted death.




  1. Either one of two pharmacists holding practising status with the College of Pharmacists of British Columbia, who have sworn affidavits in these proceedings is authorized to dispense drugs for H.H. as part of the physician-assisted dying process for H.H.




  1. Dr. Wiebe, either one of the two registered nurses who have sworn affidavits in these proceedings and either one of the pharmacists who have sworn affidavits in these proceedings, in relation to the conduct allowed under this order, are hereby exempt from the suspension of the declaration of invalidity of s. 14 and 241(b) of the Criminal Code, R.S.C. 1985, in relation to the conduct authorized under this order.

Discussion

8 This is the third petition of its kind to come before this Court. Relief similar to that sought by the applicant was sought and granted in A.A., (Re), 2016 BCSC 570.

9 Similar relief has also been granted in other provinces in H.S. (Re), 2016 ABQB 121 [Re H.S.], A.B. v. Canada, 2016 ONSC 1912 [A.B.], and Patient v. Attorney General of Canada et al, 2016 MBQB 63 [Patient].

10 The question on this application is whether the petitioner meets the required criteria so as to qualify for the constitutional exemption already granted by the Supreme Court in Carter 2016.

11 My task is confined to an adjudication or determination respecting whether the petitioner falls within the group of persons to whom the constitutional exemption may be granted.

12 The constitutional exemption articulated in Carter 2015 is available where:


  1. the individual is a competent adult;




  1. the individual clearly consents to the termination of life;




  1. the individual has a grievous and irremediable medical condition (including an illness, disease or disability); and




  1. the medical condition causes enduring suffering that is intolerable to the individual in the circumstances and cannot be alleviated by any treatments acceptable to the individual.

13 Turning to the Carter 2015 criteria for an exemption from the extension of the suspension of invalidity of ss. 14 and 241(b) of the Criminal Code provided for in Carter 2016, I will address each in turn.


  1. Competence

14 As I have stated above, the petitioner is an adult. The Attorney General for British Columbia initially opposed the application, expressing concern through her counsel as to the petitioner's capacity to consent to a physician-assisted death. In the result, the hearing of the petition was adjourned at the petitioner's request, so that she could obtain further affidavit evidence with respect to her capacity to consent to the relief that she seeks in her petition.

15 That evidence has now been filed in the form of further affidavits from the petitioner, her husband, her general practitioner, her palliative care physician and Dr. Wiebe, as well as that of a Canadian-trained and certified consulting psychiatrist who practices in Los Angeles, California. The psychiatrist conducted a detailed evaluation of the petitioner's mental state via what she referred to as telemedicine, on May 8, 2016. She concluded that the petitioner is fully capable of requesting an authorization for a physician-assisted death, and has the mental capacity to make a free, clear, and well-informed decision about receiving aid in dying.

16 The petitioner's mental capacity has been confirmed by each of the physicians who provided affidavits. The doctors have sworn that in each of their views, the petitioner is able to reasonably assess the treatment options available to her and she is competent to choose the course of action that best suits her needs and wishes.

17 The views of these physicians are shared by the petitioner's husband.

18 The affidavits of the physicians have satisfied the concerns of the Attorney General respecting the petitioner's cognitive and psychiatric state, and I have no such concerns.

19 While she is suffering from memory loss and aphasia, I accept that her mental faculties have not been compromised to the extent that she cannot competently make the choice that she wishes; to end her life with the assistance of a physician. I therefore find that the petitioner has the competency and capacity to consent to the termination of her life.


  1. Consent

20 The petitioner's physicians and the consulting psychiatrist have formed and expressed their opinions that her consent to physician-assisted death is one which is informed, free, voluntary and clear.

21 The petitioner's husband also addressed her request for assistance in preparing for a physician-assisted death and her choice to seek a physician-assisted death.

22 The petitioner has sworn that she understands fully that this is her decision and that it is a decision which she can change at any point in time. She has sworn, and I accept, that her decision to obtain a physician-assisted death was made freely and voluntarily, without influence or coercion by anyone.

23 I am satisfied that the petitioner has carefully and thoughtfully come to her decision to seek a physician-assisted death and that she fully and freely consents to the termination of her life.


  1. Grievous and Irremediable Medical Condition

24 Carter 2015 requires that to justify an exemption from the suspension of the declaration of invalidity of ss. 14 and 241(b) of the Criminal Code, the petitioner's grievous and irremediable condition must cause enduring suffering that is intolerable in the circumstances.

25 The evidence establishes that the petitioner's condition is grievous and I find that it is irremediable. It greatly interferes with the quality of her life. It is life threatening in at least the longer term and could be so in the short term. As Dr. Wiebe has stated, the petitioner's death could ensue "tomorrow or within the next two years".

26 H.H. has clearly stated to her husband, her general practitioner, Dr. Wiebe and in her affidavit in support of her petition that she is suffering from enduring and intolerable physical pain, and I accept that she is.

27 The petitioner's evidence is supported by her spouse's evidence, and the affidavits of her family practitioner of decades, another general practitioner who provides palliative care, and Dr. Ellen Wiebe, a family practitioner who has agreed to assist the petitioner in the termination of her life.

28 On the basis of the evidence in these affidavits, I find that the petitioner is experiencing enduring and intolerable pain and distress and that her quality of life has deteriorated dramatically over the last 16 years, to the point that her suffering is now unbearable for much longer.


  1. Can the Petitioner's Condition be Alleviated by any Reasonable Treatments that are Acceptable to Her?

29 The Attorney General acknowledges that the petitioner's general practitioner, her palliative care physician and Dr. Wiebe have each sworn that the petitioner has exhausted her treatment options, but points out that the endocrinologist who has been involved in the petitioner's care has stated in her consultation report that:


  1. Patients with MELAS have a high degree of variability in clinical presentation and course. Clinical course is not correlated with easily tested-for heteroplasmy levels in blood.




  1. In some, but not all patients, MELAS leads to acute deterioration through stroke or cardiac involvement. Issues with respect to stroke are treatable through arginine therapy. Most patients with cardiac death had left ventricle hypertrophy and/or dysfunction of the left ventricle. These are not present in the petitioner at this time.




  1. MELAS can lead to chronic deterioration through myopathy. To the endocrinologist's knowledge, there is no data on the rate of progression of myopathy in MELAS. In her clinical experience, though, myopathy is not rapidly progressive unless there is an "intercurrent event" such as acute illness. In the petitioner's case, the rate of progression of myopathy can "be presumed to be slow in the absence of exacerbating factors."




  1. Arginine reduces the risk of recurrent stroke by approximately 88% and can be rated "very effective". The petitioner was started on arginine after her stroke and diagnosis of MELAS. She has had no further stroke episodes, although it is not possible to conclusively state for an individual patient that the arginine is the cause. However, there has been no failure of treatment.




  1. The petitioner was noted to have muscle wasting as of November 3, 2015. This has been exacerbated by reduced mobility as a result of recovering from stroke, and this rate of wasting may not continue. Nutritional status can affect muscle wasting. There is a possibility of recovery of strength and mobility with exercise and physiotherapy once her current injuries have healed.




  1. Some of the pain of which the petitioner complains may be amenable to local therapies. For example, she has features of possible right bicipital tendonitis which may be amenable to injection.




  1. Bloodwork shows excellent renal function and excellent diabetes control.




  1. The petitioner's cardiac exam is normal.

30 In the result, the Attorney General submitted that:


  1. 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.




  1. The Attorney General also suggests that there is a question as to whether the petitioner is fully informed about the views of the specialist.




  1. 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.




  1. 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.

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. her medical condition, diagnosis, prognosis, and her limited care options;




  1. the risks associated with her treatment and the care options;




  1. the risks associated with a physician-assisted death; and




  1. 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.


  1. Relief Ordered

36 Sections 14 and 241(b) of the Criminal Code do not address the ability of an individual to take his or her life, but rather the ability of a person to consent to have death inflicted on her, or to aid or abet a person to commit suicide.

37 In order to provide the petitioner with the remedy she seeks, it is necessary to relieve not only the petitioner but those whose help she seeks from the extension of the suspension of invalidity of ss. 14 and 241(b) of the Criminal Code provided for in Carter 2016.

38 In PHS Community Services Society v. Attorney General of Canada, 2008 BCSC 661, var'd 2010 BCCA 15, aff'd 2011 SCC 44, drug users within the confines of the Vancouver Safe Injection Site ("Insite"), were not liable to prosecution for possessing a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] pursuant to exemptions by the Federal Minister of Health under s. 56 of the CDSA. The initial exemptions, based on necessity for a scientific purpose, were granted for a term of three years and subsequently extended twice.

39 When further extensions appeared unlikely, Mr. Justice Pitfield was asked to provide a declaration that ss. 4(1) and 5(1) of the CDSA infringed s. 7 of the Charter and were of no force and effect. At para. 159 of his reasons for judgment, Pitfield J. determined:


  1. I suspend the effect of the declaration of constitutional invalidity until June 30, 2009. In the interim, and in accordance with the direction of the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, 228 C.C.C. (3d) 385 at para. 46, I grant users and staff at Insite, acting in conformity with the operating protocol now in effect, a constitutional exemption from the application of ss. 4(1) and 5(1) of the CDSA.

40 I am prepared to grant a similar order in this case granting the petitioner and those whose help she seeks the relief contemplated in Carter 2016, specifically, an exemption from the extension of the suspension of invalidity of ss. 14 and 241(b) of the Criminal Code for a period up to and including June 5, 2016.

41 The individuals who intend to rely upon my order must be named in the order if they are to have such an exemption, but the order will, as requested, be maintained in the sealed file in this case, except to the extent it is necessary for the petitioner, or those who are authorized to assist her, to present the authorization order itself for her to obtain access to a physician-assisted death.

42 In conclusion, I have determined that H.H. meets the requirements set out in Carter 2015, and therefore comes within the class of persons to which the Supreme Court of Canada granted a constitutional exemption from the extension of the suspension of the declaration of invalidity of ss. 14 and 241(b) of the Criminal Code in Carter 2016. I therefore make the following declarations and orders:


  1. H.H. comes within the scope of the constitutional exemption granted by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4.




  1. Dr. Ellen Wiebe is authorized to provide H.H. with a physician-assisted death, in the form of voluntary euthanasia by lethal injection, at H.H.'s request and in compliance with the guideline issued by the College of Physicians and Surgeons of British Columbia (approved January 21, 2016 and entitled Interim Guidance - Physician-assisted Dying) up to and including June 5, 2016.




  1. Either of the two registered nurses who have sworn affidavits in these proceedings is authorized to assist Dr. Wiebe with H.H.'s physician-assisted death.




  1. Either of the two registered pharmacists holding practising status with the College of Pharmacists of British Columbia, who have sworn affidavits in these proceedings, is authorized to dispense drugs for H.H. as part of the physician-assisted dying process for H.H.




  1. Dr. Wiebe, either of the two registered nurses who have sworn affidavits in these proceedings and either of the two registered pharmacists who have sworn affidavits in these proceedings, in relation to the conduct allowed under this order, are hereby exempt from the suspension of the declaration of invalidity of ss. 14 and 241(b) of the Criminal Code, R.S.C. 1985, c. C-46, made by the Supreme Court of Canada in Carter v. Canada, 2015 SCC 5, and extended in Carter v. Canada, 2016 SCC 4, up to and including June 5, 2016.

C.E. HINKSON C.J.S.C.




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