The family of a man who received medical assistance in dying while out on a day pass from a Vancouver hospital psychiatric ward has launched a legal challenge alleging Canada’s current laws are unconstitutional because they fail to protect suicidal and mentally ill people.
The notice of civil claim filed Friday in British Columbia Supreme Court also alleges the 52-year-old’s MAID procedure two years ago was a wrongful death. It accuses Ellen Wiebe, the high-profile doctor who the suit claims helped him end his life, of alleged malpractice.
The case is at least the third this year in which a judge in Western Canada was asked to consider how MAID applications are approved and what rights family members have to challenge them.
The businessman and father of three had long struggled with mental illness and was formally diagnosed with bipolar disorder in 2013, the new lawsuit states. He was also suffering from chronic back pain, but this injury was neither incurable nor grievous enough to make him eligible for MAID, the family alleges.
Still, he sought and received approval for the procedure but then had second thoughts and decided against going through with it in favour of rehabilitation and other treatments, the claim states. The claim does not say when he received approval.
The family raised their concerns about what they saw as his illegitimate approval with the defendants, but received no response, according to the lawsuit.
Then, late in 2022, his family obtained a court order to have him committed to the psychiatric ward at St. Paul’s Hospital in downtown Vancouver, the lawsuit states.
Once there, one of his psychiatrists, Simon Bow, who is also named as a defendant in the suit, became aware of the man’s MAID approval, according to the filing. Dr. Bow agreed with the family that his mental illness should prohibit him from this procedure because his ability to consent was impaired, according to the filing.
His doctors at the hospital, Providence Health Care and the local health authority “negligently or recklessly” allowed the man to leave the ward, the lawsuit claims. The man then went to Dr. Wiebe’s Vancouver clinic for the MAID procedure, the lawsuit says.
None of the allegations have been proven in court.
The family, a group of five plaintiffs who are not named, asserts that Canada’s MAID laws and rules temporarily exclude people suffering only from mental illness from getting approved for the procedure, but there are no similar safeguards for those with who are both mentally and physically ill.
By allowing this vulnerable group of people to get MAID, Ottawa is exposing them to a heightened risk of premature death facilitated by the state, according to the filing. That, the lawsuit alleges, deprives these patients of their Charter rights to life, security of the person and equal protection under the law.
The family is seeking damages for his alleged wrongful death and for a judge to declare Canada’s current MAID framework unconstitutional, making it immediately invalid.
Dr. Wiebe declined to comment when reached Wednesday. Dr. Bow did not immediately respond to an e-mailed request for comment.
Ian McLeod, a senior adviser for media relations at Justice Canada, confirmed the department received the statement of claim and said it is reviewing it to determine next steps.
B.C.’s Ministry of Health, the Provincial Health Services Authority, Vancouver Coastal Health Authority and Providence Health Care all said they could not comment, with some citing patient confidentiality.
The provincial ministry issued a statement that included background information defending the current federal and provincial safeguards. It also directed any patients or their loved ones to complain to their local health authority if they had concerns about their care or how any medical procedure was handled or to B.C.’s nurses or doctors college if a MAID provider was unprofessional.
In June 2016, Parliament passed federal legislation that allows eligible adults to request MAID. Three years later, the Superior Court of Quebec determined the criteria for MAID on the “reasonable foreseeability” of natural death was unconstitutional. Federal legislation was then introduced to respond to the court’s decision, but Ottawa has delayed until 2027 a decision on whether people whose sole condition is mental illness can qualify for MAID.
At the end of October, Dr. Wiebe was forced by a B.C. Supreme Court judge to abstain from giving MAID to a 53-year-old woman who had travelled to Vancouver from Alberta so she could die. The woman’s common-law husband secured a temporary injunction from the day before her weekend death was scheduled to occur, according to court filings.
Justice Simon R. Coval in that matter said there is an “arguable case” about whether the MAID criteria were properly applied to the woman, whom the application says was diagnosed with bipolar disorder years ago.
Isabel Grant, a law professor at the University of B.C. who has been critical of Canada’s MAID framework, said she is concerned by the allegations in this new lawsuit, chiefly that the MAID provider either knew or should have known the man was getting treatment for a significant mental illness in a nearby psychiatric ward.
“Whoever it was either knew that or – if they didn’t know that – then they didn’t do their due diligence and find out enough about this person before ending their life.”
With a report from Kristy Kirkup in Ottawa