Judicial Review Of MAiD

Medical Assistance in Dying (MAiD) has been legal in Canada since Parliament passed legislation in June 2016. It allows eligible adults to request medical assistance in dying. In recent years, there has been much debate about the scope, nature and eligibility of MAiD patients, and the ability of our Courts to intervene in clinical decision making of medical practitioners, and in the ability of Courts to intervene in the private healthcare decisions of patients.

In March 2024, the Alberta Court of King's Bench was faced with such a case. The respondent MV had been approved for MAiD. The day before she was scheduled to die, her father, WV, applied for an ex parte injunction to prevent her death, which was granted by the Court without written reasons. MV applied then to set aside the injunction. Her application was ultimately granted by the Honourable Justice Feasby. This case has important implications about the ability of courts to review clinical decisions and an individual's rights to access healthcare and personal autonomy.

Background

MV was a 27-year-old with autism spectrum disorder, among other medical conditions. She had previously applied for medical assistance in dying ("MAiD") but was denied. She applied again in 2023, where one doctor determined she was eligible and the other did not. Alberta Health Services ("AHS") Policy permitted her to obtain a tie-breaking assessment from a third doctor, Dr. P. Of note, Dr. P had assessed MV previously in her prior application for MAiD and found her to be eligible. In 2023, he found her eligible again, and on December 13, 2023, MV was approved for MAiD. WV applied for and was granted an ex parte interim injunction on January 31, 2024, preventing MV from receiving MAiD, which had been scheduled for February 1, 2024. MV applied to set aside the injunction.

MV was an adult who was determined to be competent to make decisions about her healthcare by two medical physicians. She argued that her father had no standing to contest her private medical decisions or the clinical judgment of doctors, and that the Court was not in the position to review those decisions. WV argued that the MAiD assessments and the administrative actions of AHS should be subject to judicial review and scrutiny. Specifically, WV argued that the physicians assessing MV's MAiD application had erred, and that AHS erred in selecting Dr. P to provide a tie-breaking MAiD assessment.

Justiciability of MAiD Assessments

Not every question is appropriate for review by a Court. In order to meet the threshold for legal review, a question or an issue must "justiciable". The law of justiciability depends on two factors: legitimacy (what the court should do) and institutional capacity (what the Court can do).

MV and AHS relied on AB v Canada (Attorney General) for the proposition that MAiD assessments are not justiciable. In AB, the Court determined that the legislative history of MAiD demonstrated Parliament's intention that physicians and nurse practitioners were exclusively responsible for deciding whether the Criminal Code's criteria had been met. In other words, the court had no place to intervene in clinical decision making.

In this case, Justice Feasby agreed that it is the sole responsibility of a doctor or nurse practitioner to determine whether the MAiD eligibility criteria were met, not the Court. He held that medical assessments are private in nature and that the Court has no expertise and no place in reviewing them; to do so "would undermine the confidence of the public in the Court as well as undermine the MAiD structure established by Parliament in the Criminal Code and copied in the AHS MAiD Policy".

Justiciability of AHS's Administrative Actions

The Court then turned to whether there was justiciability of AHS's administrative actions. The key issue was whether AHS adhered to the "independence" requirement for MAiD assessors – that they "do not know or believe that they are connected to...the patient making the request in any other way that would affect their objectivity". WV contended that Dr. P "knew or was connected to" MV because they had previously provided a favourable MAiD assessment.

Justice Feasby determined that the MAiD Navigator was an employee of AHS operating subject to an official AHS policy in the provision of a service to the public. Unlike doctors, they do not exercise specialized professional judgment in the context of a private relationship with a patient. Determining whether Dr. P was independent involved a relatively straightforward application of AHS MAiD Policy that did not require specialized medical knowledge, and as such, the question of the independence of the AHS Navigator and the policy process, was justiciable.

Private vs. Public Standing of WV

Next, the Court assessed whether WV had standing to review the administrative actions of AHS's MAiD Navigator.

The test for private interest standing in judicial review proceedings is whether a person is "aggrieved" by the impugned administrative action. Justice Feasby, noting the importance of autonomy of adults in medical decision-making, determined that WV had no legal interest in his daughter's medical decision-making or in AHS's administrative actions with respect to his daughter's care. A finding that WV had standing in relation to his adult daughter's healthcare decisions would set a dangerous precedent. The Court determined, specifically "that a person has standing as of right to challenge the medical decision-making of an adult family member and their doctors".

In contrast, public interest standing allows for the balancing of competing policy concerns in a way that the test for private interest standing does not. It requires an individual to have a "real stake or genuine interest" in the subject matter of the dispute. Noting that a personal (not legal) interest in the subject matter of litigation can be sufficient to grant public interest standing, the Court concluded that WV had a genuine interest in the proceeding.

Finally, WV also satisfied the final part of the test – whether the proposed suit was a reasonable and effective way to bring the issue before the Court. Justice Feasby noted the relative novelty of the Criminal Code MAiD provisions, the lack of judicial consideration of those provisions and the policies of provincial health authorities charged with implementing MAiD, and how any alternative means of bringing the claim forward would be inferior. This, combined with the importance of clarifying the meaning of "independence" for MAiD assessors, practitioners, and AHS, as well as members of the public who may seek MAiD, Justice Feasby determined that this case was of public interest and WV was the appropriate applicant to advance the proposed judicial review proceeding.

The Decision

Having found (1) a justiciable issue and (2) that WV had public interest standing to bring an application for judicial review, Justice Feasby then turned to the question of whether the injunction should remain in place (pending judicial review) or set it aside.

The Court applied the three-part test for an injunction, as out in RJR-MacDonald v Canada (Attorney General) and concluded that the first two prongs of the test had been met:

1. That there was a serious issue to be tried.
2. That WV would experience irreparable harm if MV were to suffer a wrongful death.

However, the Court concluded that the third part of the test, whether the balance of convenience favoured granting the injunction, was not met. Justice Feasby concluded that although WV would suffer irreparable harm from the pain and grief of losing his child, that harm must be balanced against the harm to MV if the injunction were to be granted. MV was facing the loss of her autonomy and dignity. Upholding the injunction would deny her the right to choose between living a life that she had decided was intolerable and ending her life with dignity. After reflecting on the Supreme Court of Canada's well-established precedent to protect individual autonomy in medical decision-making, Justice Feasby held that the balance favoured MV, and the injunction was set aside.

WV appealed the decision of Justice Feasby, but that appeal was later abandoned.

Implications + Takeaways

This is an important development in health law, as Alberta Courts now have clear guidance regarding their standing and ability to review the clinical judgment of healthcare practitioners in the context of MAiD applications. Notably, neither the Criminal Code nor AHS Policy provide a mechanism for review of MAiD assessments. This intentional decision to not include a review mechanism, fundamentally flows from the respect given to the specialized nature of clinical judgment, and the Courts' deference to it.

This decision is now inline with how Alberta courts have handled medical decision making autonomy in prior cases. In Lewis v Alberta Health Services, the applicant made a claim against various respondents, including AHS, arguing that her Constitutional rights had been breached by the requirement that she receive the COVID-19 vaccine prior to a life-saving organ transplant surgery. The Court determined that the nature of that requirement was the exercise of clinical judgment in formulating preconditions for organ transplantation; these requirements were not initiated by any government body or part of any government policy. Citing Sweiss v Alberta Health Services, the Court held that the exercise of clinical judgment was owed substantial deference. Lewis was upheld on appeal. In Lewis (unlike the current case), the Court concluded that the respondents were not implementing a specific governmental policy or program when formulating the pre-conditions for organ transplantation. As such, there was no justiciable issue, and the court would not intervene.

Justice Feasby's decision now extends this important legal principle to MAiD, a novel area of law with very little judicial consideration across the county. Since the legalization of MAiD in June 2016, there have been ongoing debates about amendments to the framework and its availability for mental illness. Courts in Canada are beginning to grapple with the implications of providing MAiD in such cases (see Sorenson v Swinemar).

This decision also upholds the individual's right to personal autonomy. There is now broad recognition at all levels of government, and in our courts, that all capable adults have the right to make informed decisions and choices, which included MV's right to die with dignity. The recognition reinforces and upholds the right of individuals to access healthcare. As healthcare policy develops further in both Alberta and nationwide, it remains to be seen whether future legislation of healthcare rights will stand judicial scrutiny.

On February 29, 2024, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2 (introduced as Bill C-62) received Royal Assent and immediately came into effect. The eligibility date to receive MAID for persons suffering solely from a mental illness is now March 17, 2027.

Link to Decision: WV v MV, 2024 ABKB 174

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