Family of woman denied MAID at B.C. hospital files Charter challenge

The family of a young woman who was denied Medical Assistance in Dying at St. Paul's Hospital last year is taking the hospital's operators – including the provincial government – to court.

Lawyers for Gaye O'Neill – the mother of Sam O'Neill and administrator of her estate – filed a notice of civil claim in B.C. Supreme Court Monday.

The lawsuit names the provincial health minister, Vancouver Coastal Health and Providence Health Care Society as defendants, arguing that their policies regarding MAID violate Sections 2 and 7 of the Canadian Charter of Rights and Freedoms.

Joining Gaye as plaintiffs are Dr. Jyothi Jayaraman and the advocacy group Dying with Dignity Canada.

Sam O'Neill's story

Sam was diagnosed with Stage 4 cervical cancer in 2022. She was treated at St. Paul's because of its proximity to her home, according to the lawsuit, which says she had no choice about where she would be treated.

The cancer spread to Sam's lymph nodes and pelvic bone, leaving the 34-year-old in excruciating pain. By early 2023, it was clear treatment would not save her life, and she sought MAID.

After entering palliative care at St. Paul's, Sam learned she couldn't receive MAID there because the facility is run by Providence Health Care, a Catholic organization that opposes MAID.

To access the procedure, she had to be sedated and transferred to a Vancouver hospice during the final hours of her life. She didn’t wake up to say goodbye to her family before undergoing MAID.

• Read more: Parents of Vancouver woman denied medically-assisted death at St. Paul's Hospital speak out 

"Although Ms. O’Neill was ultimately provided with access to MAID, the circumstances surrounding the forced transfer and Ms. O’Neill’s access to MAID caused and exacerbated Ms. O’Neill’s egregious physical and psychological suffering, and denied her a dignified death, including the ability to say goodbye to her family and loved ones," the lawsuit reads.

Speaking to CTV News, the young woman's mother said the lawsuit is "absolutely not about compensation," but about challenging the laws surrounding religious exemptions for MAID in the province. 

“We just don’t want it to happen to anyone else, it was horrible. It’s been horrendous to go through,” said Gaye. 

“We don’t wish to be compensated. The only thing we want is for forced transfers to stop so nobody else gets hurt." 

Partly in response to Sam's story, Health Minister Adrian Dix announced last fall that the province would be building a new clinical space for MAID that would not be part of St. Paul's Hospital, but would be connected to the building by a corridor.

Dix called the change "a good response" that would be consistent with Providence Health Care's policy opposing MAID, but eliminate the need for transfers to other facilities by ambulance.

Sam's father said she faced "excruciating pain" being moved around toward the end of her life, even within St. Paul's. 

“She had two operations on the Sunday and the Monday before her Tuesday passing, and the doctor specifically said even on those transfers within the building, it hurt a lot," said Jim O'Neill, who also wants an end to all forced transfers for MAID for religious reasons.

“It’s OK to have your freedom of religion, but we have the same right, and you can’t physically harm us to make your point,” he added.

• Read more: Families outraged by minister's plan for medical assistance in dying at St. Paul's Hospital 

Policy unfair to doctors: lawsuit

Gaye's lawsuit also argues that the ban on MAID in Providence Health Care facilities violates the rights of doctors who work in those facilities. Jayaraman, the other individual plaintiff in the case, is put forward in the document as an example of this.

The lawsuit describes Jayaraman as a palliative care physician who conducts MAID assessments at Providence-run facilities, including St. Paul's and Mount Saint Joseph hospitals.

"Dr. Jayaraman has had numerous cases where she was unable to provide appropriate end-of-life care consistent with a patient-centred approach because the patient was in a facility operated by PHC, which prohibits MAID from being provided on the basis of religious beliefs Dr. Jayaraman does not share," the notice of civil claim reads.

The document adds that Jayaraman has seen "forced transfers that were not medically required" and that "imposed unbearable physical and psychological suffering on her patients."

“I am the one who has to say, 'I can’t do this, I cannot provide this at your bedside' — when I can, but I have been prevented by the religious beliefs of this institution which I don’t share,” said Jayaraman in an interview with CTV News. “So I think Canada should be protecting me, I think the Charter allows me that protection, that I should not be forced to act against my beliefs.” 

Jayaraman resigned from her position at May's Place Hospice when Providence Health Care took over operation of the facility in January 2023. According to the lawsuit, she chose to resign because remaining at the facility would have required her to participate in forced transfers of patients seeking MAID.

"She was forced to choose between resignation or continuing her palliative care work and participating in forced transfers," the document reads. "She chose to resign on the basis that she could not serve her patients in the professional and ethical manner that she felt it was her duty to perform."

Legal basis

Section 2 of the Charter protects the freedom of conscience and religion, and Section 7 protects the rights to life, liberty and security of the person, as well as the right not to be deprived of those rights "except in accordance with the principles of fundamental justice."

The lawsuit argues that the policies of the Health Ministry and Vancouver Coastal Health regarding MAID – which include exceptions allowing faith-based organizations to decide not to provide MAID in the facilities they run – as well as Providence Health Care's policy banning the practice, violate Section 2.

"The impugned provisions separately and together prevent or restrict patients from accessing MAID on the basis of the religious significance of MAID to others and in circumstances where those patients do not want religion dictating their care and end-of-life choices, thereby infringing patients’ freedom from religion," the document reads.

Likewise, it argues clinicians' rights under Section 2 are violated by the policies because the policies require them to "conform with, and to implement, the religious beliefs of others."

The lawsuit's arguments about Section 7 are more detailed, alleging that all three elements – the rights to life, liberty and security of the person – are infringed by the policies, and that such infringements are "not in accordance with the principles of fundamental justice because they are arbitrary, overbroad and/or grossly disproportionate."

The MAID advocacy group Dying with Dignity has assembled a legal team to take on the B.C. government in a case they hope is precedent-setting.

“We argue that health-care facilities are government actors when they are delivering medical care because they are publicly funded, and as a government actor, they are not allowed to show preferential treatment to any one religion over others or over non-religion," said law professor Daphne Gilbert, who is part of the legal team arguing the case. 

"And so there is a clear prioritizing at St. Paul's and Providence Healthcare of the Catholic faith, even though staff and patients don’t share that faith. So we are arguing it’s a violation of a patient's freedom of conscience rights."

The Ministry of Health said it cannot comment on the lawsuit since it is before the courts.

The allegations made in the suit have not been proven in court, and the defendants have not yet filed a response to the notice of civil claim. They have 21 days to do so from the date they were served the claim.