A B.C. judge took the extraordinary measure of preventing a woman’s medically assisted death, issuing an 11th-hour court order to halt the procedure, according to documents filed over the weekend.
The injunction, signed by Justice Simon R. Coval, is the first of its kind issued in the province and was issued on Saturday, the day before the woman was scheduled to die.
It prevents Dr. Ellen Wiebe or any other doctor from “causing the death” of the 53-year-old woman “by MAID or any other means.” It followed a notice of civil claim alleging Wiebe negligently approved the procedure for a patient who does not legally qualify.
“If the defendants proceed with MAID, the death will constitute a battery of (the patient), wrongful death and, potentially a criminal offence,” the notice of claim says.
“It is within the inherent jurisdiction of this honourable court to enjoin allegedly criminal conduct, in this case the termination of a patient’s life where it appears that legislative criteria has not been met, and/or the protection of a patient from injury,” the claim argues.
None of the allegations have been tested in court and Wiebe has not yet filed a response. Wiebe also declined to comment when contacted by CTV News Tuesday.
The woman, to whom the court has granted anonymity, is from another Western province and travelled to B.C. for MAID, according to the application for the injunction – which was filed by the woman’s common-law partner, who is also not being named.
“She could not get approval from her own doctors (in her home province), and so started looking online for other doctors who might be open to her request. She eventually found Dr. Ellen Wiebe,” the application says, adding that the woman had several Zoom meetings with the B.C. doctor and outspoken MAID advocate.
“At the end of the first meeting, Dr. Wiebe approved (the woman) for MAID.”
Is the woman eligible for MAID?
The claim argues that this woman is ineligible because her underlying condition does not qualify her for a medically assisted death under what’s known as Track 2 MAID – which sets out the criteria in cases where death is “not reasonably foreseeable.”
Legally, individuals whose “sole condition” is mental illness or disorder are ineligible for MAID, an exclusion that will remain in effect until at least March of 2027.
According to the notice of civil claim, the woman has been diagnosed with “rapidly cycling bipolar 2 disorder.” However, she sought MAID on the basis of “akathisia,” a condition that is associated with changing doses of psychotropic or antipsychotic medication. According to the American Psychiatric Association, it manifests as “extreme restlessness characterized by an inability to sit or stand still and by fidgety movements or jitteriness, as well as a subjective report of inner restlessness.”
In October of 2023, the woman was prescribed a high dose of Quetiapine but soon after sought to reduce the dosage.
“As she was reducing her medication, (she) began describing distressing side-effects. She described having ‘the horrors’ or an inner sense of terror all day long, the inability to sleep at night, nightmares, the inability to lie down during the day due to a feeling of falling, the inability to sit or remain still, suicidal thoughts,” the application for the injunction says.
“At the same time, (she) continued to express her desire to die. She did not want to do it herself, and regularly begged (her partner) to end her life.”
According to the court documents, the woman and her partner – at an emergency consultation with a doctor in their home province 11 days before the medically assisted death was scheduled – were told that the condition is treatable and that the symptoms could resolve within months.
“In this case, (the woman) is actively pursuing death, over the objections of the physicians who actively treat her. She has come to B.C. because she was able to find someone in B.C. who would approve,” the notice of application says.
“This case raises serious questions about whether (the woman) in fact qualifies for MAID Track 2. Particularly concerning is that akathisia appears to be a cluster of symptoms connected to the changes in usage of drugs used to treat a psychiatric condition. It is treatable but (the woman) has not followed treatment recommendations.”
In addition to arguing that the woman was seeking MAID based on a condition that disqualifies her from receiving it, the lawsuit raises a number of concerns about the process by which MAID was approved in this case.
‘Potentially serious failings’?
The law around MAID is laid out in the Criminal Code of Canada, which outlines the circumstances under which a medical practitioner can cause the death of another person without committing an offence.
When it comes to which patients are eligible, the law says they must “have a grievous and irremediable medical condition.” This is defined as having an incurable condition and being in an irreversible and advanced state of decline. It also requires that a patient’s condition “causes them enduring physical or psychological suffering that is intolerable to them and that cannot be resolved under conditions that they consider acceptable.”
According to the court documents, the woman’s partner allegedly questioned whether akathisia is “irremediable” and questioned Wiebe’s willingness to sign off on the procedure during a Zoom call.
“(The partner) asked Dr. Wiebe if she had ever carried out MAID on someone with akathisia. Dr. Wiebe said that she had not. During the same Zoom session, (the partner) also attempted to describe (the woman) as a person with unresolved mental health problems which were probably not considered during the MAID assessment,” the notice of application says.
“Dr. Wiebe responded by stating that diagnosis does not matter, and that only quality of life mattered, and that this was (the woman’s) right.”
The lawsuit also alleges that Wiebe did not directly speak to any of the woman’s doctors, did not request her medical records, and only reviewed partial records provided by the patient via email.
In Track 2 cases, where death is not reasonably foreseeable, there are also specific requirements intended to function as “safeguards against misuse,” the lawsuit explains.
Among those is the requirement to have more than more than one physician sign off on the procedure, and that the second doctor must be independent form the first.
The notice of application also alleges that did not happen in this case.
“(The woman) did not have a doctor who would provide the second assessment. Dr. Wiebe arranged for (another B.C.-based doctor) to be the second assessor. (The woman) met with (that doctor) on Zoom,” the court documents say.
In addition, the lawsuit claims that when the woman was unable to find anyone to act as a witness to the MAID paperwork being signed, Wiebe found and provided someone to fulfill that role.
“The litigation seeks to address potentially serious failings in the application of the MAID regime,” the court documents say, summarizing the arguments.
The judge’s reasons for granting the injunction are not yet publicly available.