Providing MAID to man on day pass from B.C. psychiatric ward was 'unlawful,' family alleges

A 52-year-old man who was provided with a medically assisted death while out on a day pass from a B.C. psychiatric hospital should never have been approved for the life-ending procedure, his family alleges in a recently filed wrongful death lawsuit.

The man, a father of three, is identified as J.M.M. in the notice of civil claim, which says he had diagnosed mental illnesses as well as chronic back pain when he was provided with MAID in 2022.

The family, whose identities are also anonymized, claim they obtained a court order under the province's Mental Health Act that saw J.M.M. committed to the psychiatric ward at a Vancouver hospital prior to his death.

"While receiving treatment at St. Paul's Hospital for his incapacitating mental illness, J.M.M. left the hospital on a day pass, visited a clinic in the afternoon, and died through the improper administration of MAID," the claim alleges.

"His family only learned about his death afterward."

The claim

The defendants named in the lawsuit, which was filed Dec. 13, include the attorney general of Canada, B.C.'s minister of health, Vancouver Coastal Health Authority, and Providence Health Care Society, which operates St. Paul's Hospital. The ministry and health authorities declined to comment on allegations, citing the litigation as well as well as patient privacy.

Also named is Dr. Ellen Wiebe – a prominent MAID provider and proponent – and her clinic, Willow Reproductive Health Centre. Wiebe declined to comment when contacted by CTV News.

None of the parties have filed responses and none of the allegations have been proven in court.

The claim itself is two-fold. It alleges that J.M.M. – specifically – should not have been provided with a medically assisted death in the circumstances. It also alleges the current federal and provincial legal framework governing MAID violates the Canadian Charter of Rights and Freedoms.

"The wrongful death claim arises from the unlawful administration of MAID to J.M.M., despite his ineligibility and incapacity to consent under the statutory framework," the claim reads.

"J.M.M.'s death resulted from the wrongful actions of the physicians and institutions that facilitated MAID, as well as the unconstitutional regulation of MAID by the federal and provincial governments."

Legal framework for MAID

The claim alleges that J.M.M. was not legally eligible for a medically assisted death, citing several grounds that should have disqualified him.

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.

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 in capability. 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.”

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.

Wrongful death

In J.M.M.'s case, the claim alleges he did not have the medical condition necessary – separate and distinct from his mental illness – to make him eligible.

"J.M.M. had a longstanding history of mental illness and was formally diagnosed with mental illnesses including bipolar disorder in or around 2013," the notice of claim says.

"He also experienced chronic back pain. However, his pain was neither grievous nor irremediable and therefore did not meet the statutory eligibility criteria for MAID."

Not only was J.M.M.'s mental illness insufficient grounds to qualify him for MAID, the claim argues, it rendered him incapable of consenting to MAID. Additionally, J.M.M.'s decision to seek out MAID, according to the family's claim, was influenced by "external pressure" including financial insecurity.

"Any one of the above reasons, on its own, would render J.M.M. ineligible for MAID," the claim says.

"Despite this, J.M.M. was wrongfully approved for MAID by the defendants. In facilitating J.M.M.'s access to MAID, the defendants acted negligently or recklessly, causing J.M.M.'s death."

The claim also says that J.M.M. had misgivings about proceeding with MAID after he was initially approved, and that his family raised concerns about the approval prior to J.M.M.'s death – concerns that went unanswered.

The doctors directly involved in J.M.M.'s treatment – including a psychiatrist at St. Paul's Hospital – also "opined that J.M.M. should not receive MAID," according to the claim.

Constitutional challenge

The claim alleges the current legal framework for MAID fails to establish safeguards for people like J.M.M. who are members of a "vulnerable group" with concurrent mental and physical illness.

"This failure exposes members of the group including J.M.M. to heightened risks of premature death facilitated by the state and discriminates against them by denying equal protection under the law," it argues.

"Accordingly, the MAID Framework infringes sections 7 and 15 of the Charter by depriving the vulnerable group of their rights to life, security of the person, and equal protection under the law."

According to the federal government, one of the reasons the exclusion from eligibility for MAID solely on the basis of mental illness was first put in place was "to ensure appropriate safeguards are in place to protect persons in those circumstances."

The caution around providing MAID for people solely on the basis of mental illness is – in part – born of concerns about the capacity to meaningfully consent, according to the claim.

People who are committed under the Mental Health Act – as J.M.M. was – are detained against their will and without their consent, rendered legally incapable of refusing psychiatric treatment.

Another issue complicating claims for MAID on the sole basis of mental illness is suicidality, which presents "difficulties in disentangling the common symptom of a desire to die from a genuine MAID request arising from enduring and unbearable suffering," according to the claim.

These same "complexities" are at play in cases like J.M.M.'s where the person has a concurrent condition, the claim argues, but these patients are not adequately or equally protected from "abuse or error" under the current law.

The family is seeking damages for the alleged violation of J.M.M.'s Charter rights, as well as a declaration that the current MAID framework is unconstitutional.