Pre-Death Bereavement : The Courage of Her Convictions

Nova Scotia’s highest court judgement on (MAID). (Anjuli Patil/CBC)

"It is clear Parliament [of Canada] fully intended, provided it is undertaken in a manner consistent with the law, the determination of [medical assistance in dying] eligibility should rest with authorized medical and nursing professionals, not with judges."

"I am also satisfied the institutional capacity of the courts is not well-suited to respond to the time-sensitive nature of challenges advanced in relation to ... eligibility assessments."

"Undoubtedly, she [wife Katherine Sorenson, 82] loves him deeply and wants what she feels is in his [husband Jack Sorenson, 83] best interests."

"The thought of losing him must be very painful for her. However, these feelings do not give her standing to challenge the determination he meets the eligibility criteria for [medical assistance in dying]."

"A review of the legislation relied upon by Mrs. Sorenson does not support her view the courts should or must entertain the type of challenge she has launched."

"Withholding MAID would be contrary to Mr.Sorenson's fundamental right to personal autonomy and medical self-determination."

"Preventing him from accessing MAID constitutes significant harm." 

Justice Cindy Bourgeois, Nova Scotia Court of Appeal

82-year-old Katherine Sorenson filed for an injunction. (Steve Lawrence/CBC)

"[The decision calls into serious question the] arbitrary application of the criminal law [in a way that puts vulnerable people at risk]."

"It would be criminal to subject terminal treatment decisions under [medical assistance in dying] to less protection than any other treatment decision]."

"Katherine calls on Parliament, the Nova Scotia Legislature and the Courts to fix an arbitrary and broken legal process that permits the intentional killing by euthanasia of those who lack capacity and who don't meet the most basic requirements of the law."

"The Supreme Court of Canada made clear that legalization of euthanasia in Canada depended completely on Parliament's ability to implement reasonable safeguards to protect the most vulnerable of Canadians. Today's decision by a single judge of a court of appeal on a procedural matter demonstrates how woefully inadequate the present regime and procedures are to protect vulnerable people lacking capacity from being put to death in Canada." 

Hugh Scher, lawyer for Katherine Sorenson 

This is an unfortunate case where a couple who have known one another for 60 years, and have been married for 48 years, clearly disagree on the most fundamental principle of existence; to continue living. When this woman's husband decided to end his life through the government-approved medical assistance in dying program, she took legal action in an effort to stop him. Which led to his moving out of their shared matrimonial home, and to stop even speaking with her.

Katherine Sorenson filed a notice of application with the court in Nova Scotia on July 31, where she contended that her husband failed to meet the eligibility guidelines for MAID qualifications. She soon afterward in her effort to prevent the procedure from taking place sought an interlocutory injunction. Justice Peter Rosinski of the Nova Scotia Supreme Court in an August 14 ruling saw fit to reject her request, concluding that her husband with end-stage chronic obstructive pulmonary disease was indeed entitled to the procedure, meeting the criteria under federal law that he would suffer "irreparable harm" should an injunction be granted.

Hugh Scher, the lawyer for Katherine Sorenson -- acting on her instructions -- brought the case to the Nova Scotia Court of Appeal. A unanimous ruling brought forward on Friday from a three-judge panel concluded that the court has no jurisdiction to determine eligibility for medical assistance in dying, inclusive of whether an individual making application for MAID has the required capacity to make such decisions relating to end-of-life treatment. Those decisions, it claimed, should be left to health-care assessors.

The Appeals court rejected her appeal of the lower-court ruling rejecting her request for a temporary injunction. According to Katherine Sorenson her husband's wish to end his life was based entirely on anxiety and delusions and her lawyer had argued before the court that conflicting medical reports relating to her husband's health condition and his capacity to seek assisted death existed, noting the opportunity to cross-examine medical experts in lower court to be "assured of their reliability" had been absent from the process.

An assertion that Justice Bourgeois dismissed, stating the assisted death policy of the Nova Scotia Health Authority demonstrated consistency "with Parliament's response". And nor did the court accept that the appellant has a private-interest standing to challenge her husband's eligibility for assisted death, given her status as his spouse. In response, the judge iterated hat the Supreme Court of Canada recognized that personal autonomy in medical decision-making was meant to be "respected and protected"; therefore allowing Sorenson to question her husband's assessment outcome would fail "this fundamental right of her husband".

The impasse did not mean that the wife of the man determined to end his life would let matters lie there and accept what might appear to be the inevitable. Mrs. Sorenson advised her lawyer to seek leave to appeal the ruling to the Supreme Court of Canada. Her purpose, clearly, to avoid the finality of a death she believes to be precipitated and guided through the consequences of fear. She was ordered by the appeal court to pay $2,500 in court costs to her husband, and an additional like-amount to the Nova Scotia Health Authority and a nurse practitioner named in the court action.

 

Katherine, 82, says she thinks her husband could have a change of heart about wanting to die. She's gone to court to stop him from accessing medical assistance in dying. (Steve Lawrence/CBC)