A lawyer representing a man who has been stuck in a London, Ont., hospital for two years is demanding that Canada鈥檚 justice minister halt all medically assisted deaths until legislation is changed to ensure that all necessary services to help patients live are provided first.
On behalf of his client Roger Foley, Ken Berger has sent a letter to Justice Minister Jody Wilson-Raybould, requesting the 鈥渋mmediate moratorium鈥� and a public inquiry on all assisted deaths provided in the country so far.
鈥淧ersons suffering with severe disabilities require necessary health care, assistance and compassion,鈥� Berger wrote. 鈥淭hese crucial services are not always provided at times of most need or in such a way that relieves suffering; instead, persons with disabilities are being assisted to their death rather than being assisted with life.鈥�
Foley, who suffers from an incurable neurological disease called cerebellar ataxia, recently filed a landmark lawsuit against a London hospital, several health agencies, the Ontario government and the federal government. He alleges that health officials will not provide him with an assisted home care team of his choosing, instead offering, among other things, medically assisted death.
Foley said that although his disorder qualifies him for medically assisted death, he simply wants to live at home.
But according to his statement of claim, the only two options offered to him have been a 鈥渇orced discharge鈥� from the hospital 鈥渢o work with contracted agencies that have failed him鈥� or medically assisted death. Refusing to leave the hospital and unwilling to die by a doctor鈥檚 hand, Foley claims he has been threatened with a $1,800 per day hospital bill.
None of the claims in Foley鈥檚 lawsuit have been tested in court.
In an interview with CTVNews.ca, Berger said he believes that his client is not alone in his suffering and frustration.
鈥淭here are many individuals that are not being offered alternatives,鈥� Berger said. 鈥淭hey are not being supported or not having the necessary services put in place in a way that relieves their suffering.鈥�
In his letter to Wilson-Raybold, Berger said the government must ensure 鈥渁ll necessary health services are provided before persons are misled into premature and inappropriate deaths because of their belief that they are a burden to society with no alternative to death.鈥�
Berger and Foley argue the current assisted death legislation violates the Charter鈥檚 right to 鈥渓ife, liberty and security of the person鈥� when assisted death is offered before other care options.
鈥�(Foley) is substantially suffering,鈥� Berger said. 鈥淗e is going to fight this, not only to protect his own constitutional rights, but also the constitutional right of all Canadians.鈥�
A spokesperson for Wilson-Raybould said the federal government鈥檚 policy ensures safe and consistent access to medically assisted death for all Canadians, in accordance with all Charter rights.
鈥淥ur government passed legislation that provides a national framework for medically assisted dying that protects our most vulnerable,鈥� David Taylor wrote in a statement to CTVNews.ca.
He said Wilson-Raybould will review Berger鈥檚 letter.
Trudo Lemmens, a professor and Scholl Chair in Health Law and Policy at the University of Toronto鈥檚 Faculty of Law, said Foley鈥檚 case should be taken seriously.
鈥淲e focus too much on stories of empowered people who want to use medically assisted death, often with the message that access should be easier,鈥� he told CTVNews.ca in an email. 鈥淲e rarely hear stories about (often unconscious) pressure and inappropriately conducted MAID (Medical Assistance in Dying), but that doesn鈥檛 mean this doesn鈥檛 happen.鈥�
Lemmens wants to see governments and other regulators impose more specific procedures, better legal guidance, and greater oversight to ensure patients receive proper treatment and are not pressured into choosing death.
鈥淧eople who are dead don鈥檛 complain,鈥� he wrote.
Berger acknowledged there are some cases where even the best care would not improve a patient鈥檚 suffering, but argues the government must do what it can to determine if any other option would improve someone鈥檚 quality of life before they can choose to die.
鈥淚f everything fails, then there may be a few cases where it may well be constitutional to assist someone who is suffering with assisted death, but until you reach that stage you really need to provide all necessary services and assistance to help them with life first,鈥� Berger said.
With files from CTV鈥檚 medical affairs specialist Avis Favaro and producer Elizabeth St. Philip
