by Written on behalf of Wise Health Law March 19, 2018 4 min read

A London, Ontario man with a serious neurological disability has filed an unprecedented lawsuit claiming that health officials will not provide him with an assisted home care team of his choice, and instead, have only offered him the option of hospital discharge or medically assisted death. The man argues that the solution to his situation is “assisted life” with self-directed funding.

The Details of the Lawsuit

The man suffers from (among other things) cerebellar ataxia, a brain disorder which limits his ability to move his limbs. He requires assistance with everyday tasks such as eating, taking his medication, and hygiene. He is currently residing as an alternate-level-of-care patient in a hospital in London. The suit has been filed against a hospital, a local health integration network (LHIN), an independent living centre, the Minister of Health and Long-Term Care and the Attorney Generals of Ontario and Canada. It claims that these organizations and individuals have violated the man’s Charterrights by:
  • Failing to relieve the man’s intolerable suffering;
  • Providing the man with the option of assisted suicide rather than assisted life;
  • Demeaning and degrading a human life;
  • Unnecessarily and illegitimately oppressing the man who is dependent on the organizations named in the lawsuit for his dignity and survival;
  • Denying (for a two-year period) the man’s right to self-directed home care; and
  • Arbitrarily denying him a medically necessary service through a simple alternative and available means of delivering a service the man was already receiving.
The lawsuit further claims that instead of providing the man with a medical service that would substantially relieve his suffering and allow him to maintain his dignity, independent, and quality of life, the only two options that were presented to him were a forced discharge from the hospital or medically assisted death. The man claims that since he has refused to leave the hospital and has refused medically assisted death, he has been threatened with a $1,800 per day hospital bill (the approximate non-OHIP daily rate for a hospital stay). The man is hoping to be able to set up and manage a health care team that will allow him to live at home, instead of at the hospital where he has been for the last two years, or at one of the facilities which have previously failed to provide him with a high standard of care. He claims that this request has previously been denied. He has told CTV news that he has “no desire to take up a valuable hospital bed…but at this point, it’s my only option.” He is reluctant to remain in the care of the hospital or the home care agencies that have previously assisted him. He claims that he previously twice ended up in the hospital due to poor care provided by home care agencies: once due to food poisoning, and once because the poor quality of care he was receiving made him contemplate suicide. He also claims he has been given the wrong medications, has been injured during exercises and transfers, that burners and other appliances have been left on, that personal support workers have simply failed to show up, and a number of other problems. He would like “the ability to hire his own workers that are qualified, trained to perform the services, and who are cooperative”. The hospital, LHIN, and the Ontario Ministry of Health all told CTV news that they are unable to comment on the case as it is an ongoing matter. Ontario's Ministry of the Attorney General also noted that it would be inappropriate to comment further.

Medical Assistance in Dying (MAID)

The lawsuit also seeks a declaration that the medical assistance in dying (MAID) provisions in the Criminal Code are unconstitutional and violate the Charter. Per the suit, the MAID provisions fail to require healthcare organizations to take any steps to try to help relieve intolerable suffering or require them to require other options be tried before assisting vulnerable individuals with assisted death. The suit further claims that this is not fundamentally just in a democratic and civil society based on the rule of law, and an inclusive society that respects vulnerable persons with disabilities, and that:
…current MAID provisions have facilitated and continue to facilitate the humiliation, abuse, and degradation of the plaintiff and all other vulnerable persons with disabilities, improperly exploiting their vulnerabilities and weakness in times of desperation instead of doing very simple things to relieve their suffering and assist them with life...
In a statement provided to CTV News, the federal Justice Minister said that the MAID legislation “protects our most vulnerable, while also providing for safe and consistent access to medical assistance in dying for Canadians across Canada”. The Minister also noted that “we intend to defend the legislation, which is a fair and reasonable law that respects Charter rights.” We will continue to follow developments in this interesting matter as it unfolds and will provide updates as they become available. In the meantime, if you have questions about this case, MAID, or any other related issue, contact the knowledgeable health law lawyers at Wise Health Law. We provide exceptional guidance on health law matters to regulated health professionals, regulated health professional associations, public hospitals, and other health-care organizations across the province. We monitor trends and developments in health so that we can provide consistently forward-thinking legal and risk management advice to our clients. We have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

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