February 28, 2022 – update March 28 | EXPLAINER
The methods used by the British Columbia government to forcibly remove Eileen Wicks and her husband Trevor from their home on January 12, 2022, and to detain Eileen on a locked ward at Nanaimo Hospital were aggressively inappropriate and possibly illegal, not to mention callous and harmful to both Eileen and Trevor. Their pain and anguish cannot be overstated.
Six weeks later, Island Health still refuses to explain who has made these decisions, why and on what legal grounds Eileen remains incarcerated. Island Health claims that the B.C. Adult Guardianship Act requires that it be kept secret. What is abundantly and inarguably clear is that Trevor and Eileen Wicks’ legal rights and clearly expressed choice to refuse Island Health’s “care and assistance” have been ignored, abused, trampled and violated by Island Health and its agents. — Editor
What doesn’t Island Health understand about NO means NO?
In a previous Explainer we summarized Island Health’s obligations to respect Eileen’s and Trevor’s rights, as legislated in BC’s Adult Guardianship Act, Representation Agreement Act, and Health Care (Consent) and Care Facility (Admission) Act. If you are in any doubt about a person’s right to refuse unwanted interventions by Island Health, please read that Explainer before continuing: B.C. laws – what you need to know to protect yourself & your assets
“It should be a slam dunk to give people the right to make this choice when they’re mentally capable … in the face of a diagnosis that is not going to get better.”
John Getliff, former Ontario court judge
In this Explainer, we will review the clear and consistent position and directives expressed by Eileen, over several years, including in writing and legal documents, that she does not want Island Health’s interference in how she chooses to live the rest of her life, and even how she chooses to die, as well as her right to lean on her partner Trevor to help make decisions by naming him as her legal Representative.
We will also review some glaring inadequacies in the current federal legislation governing Medical Assistance in Dying (MAID). The lawyers who cobbled together the contentious amendments to the law that came into effect in March 2021 have created an untenable Catch-22. These latest amendments to the federal MAID legislation also completely neglect the role and rights of a person’s legally appointed Representative. Was this just sloppiness, or is there a lack of adequate oversight on lawmakers or, was it done purposefully?
The directives expressed by Eileen Wicks in her Representation Agreement
In her 2020 Representation Agreement drawn up by a lawyer, Eileen included these as Instructions or Wishes “intended to complement or supplement any specific directions or directives I have given:
If a situation should arise in which there is no reasonable expectation of my recovery from extreme physical or mental disability or if I have a grievous and irremediable medical condition (including an illness, disease or disability) that is causing enduring suffering that is intolerable, I wish to be allowed to die and not be kept alive by artificial means or “heroic measures”.
In those circumstances, I instruct that my care be limited to support and comfort only and do not want any active resuscitation undertaken. I believe that if death is imminent, it should be allowed to come mercifully and painlessly. I believe that the indignity of deterioration, dependence, and hopeless pain is to be feared more than death. I therefore ask that medication be mercifully administered to me to alleviate suffering. even though this action may hasten or cause my death.
I have carefully considered these wishes. I appreciate that any attempt to countermand this declaration may be well intentioned and, therefore, affirm that I fully understand the consequences and the implications of this declaration. I have made this declaration also to ease the emotional anguish of those who have to determine if intervention should be undertaken and to place the responsibility of the decision solely upon myself.
For clarity, I expressly wish medical assistance in dying and ask that my Representative honour any advanced declaration in any form, including verbal or written, I have made (for conditions such as dementia) consistent with the laws of Canada at the time of my imminent death.”
Eileen clearly expressed NO Consent to institutional care
According to Trevor Wicks and available legal documents and records, Eileen and Trevor Wicks have repeatedly reminded multiple Island Health agents, including family physician Dr. Jacques Simenhoff and psychiatrist Dr. Pawel Juralowicz, that Eileen does NOT want to ever reside in any institution, including an acute care hospital, long term care facility, palliative care, or hospice.
Lest there is any doubt about Trevor’s authority as Eileen’s Representative, she has been very clear: “The Representative [Trevor] may make decisions, help me make decisions, undertake any tasks, or help me undertake any tasks in relation to my personal care or health care including, but not limited to, any of the following: decide where I am to live and with whom, including whether I should live in a care facility; make day to day decisions on behalf of me, including decisions about my diet or dress; give or refuse consent, in any circumstances, to health care for me, including giving or refusing consent to health care necessary to preserve my life, even though I refuse to give consent at the time that health care is provided.” [Our emphasis.]
Yes, in anticipation of her own gradual decline, Eileen Wicks has delegated to her husband Trevor the right to override her judgment at that future point in time.
Eileen requested Medical Assistance in Dying (MAID)
Eileen’s Representation Agreement also includes the directive that “if I have a grievous and irremediable medical condition (including an illness, disease or disability) that either I or the Representative decides is causing enduring physical or psychological suffering that is intolerable to me in the circumstances of my condition, and if the law permits, the Representative may give or refuse consent on my behalf to receive medical assistance in dying.”
Again, this is not news to anyone at Island Health. It has been legal in Canada to receive medical assistance in dying since June 2016. Eileen and Trevor have often and openly discussed this with their doctors and Island Health agents, friends and community groups.
Thousands of Canadians breathed a sigh of relief when the original MAiD legislation was revised in 2021 so that a person did not have to have “a reasonably foreseeable natural death” to apply for and be eligible for a medically-assisted death. However, respect for an individual’s “advance request” has not yet been included in the law.
Catch-22
First, the good news — If I anticipate a decline in my cognitive ability over time, I can protect myself from a miserable brain-addled dying by issuing a clear directive now, while I am of “sound mind,” to curtail my eventual suffering with the assistance of a physician or nurse practitioner administering a fatal injection.
These latest amendments to the federal MAID legislation also completely neglect the role and rights of a person’s legally appointed Representative. Was this just sloppiness, or is there a lack of adequate oversight on lawmakers or, was it done purposefully?
Now the bad news — What if when I reach the point of “physical or psychological suffering that is intolerable to me,” I am incapable of saying “Now, please. Call the doc. Let’s do this on Saturday when the kids can be here.” The problem with the current law is that I have to be capable of consenting to MAID not only when I first gave directions, but I must also be capable of giving consent on the day of my medically-assisted death. Supposedly this rule is in there to protect me. However, if by then I have severe dementia, and am deemed incapable of consenting, exactly at the point I do not wish to live beyond, well, under the law as it is constituted, my rights and directives apparently vanish.
Believe it or not, the way we read the newly minted edition of MAID legislation, my only way out of this predicament is to waive the requirement that I give “last day” consent. No problem; where do I sign? Oops, this waiver, which I can pre-arrange with the doctor, requires that I give a specific date when I want to die. The lawyer(s) who wrote this section of the law must not have had a clue about the slow and unpredictable progression of vascular dementia and its debilitating effects, nor does it appear that there was adequate oversight by the medical and health care professionals or our elected representatives.
An obvious answer to this glaring defect in the law is to delegate the date decision to my Representative. Eileen has done just that in her Representation Agreement by granting this explicit written authority to her Representative [husband Trevor]: “if I have a grievous and irremediable medical condition (including an illness, disease or disability) that either I or the Representative decides is causing enduring physical or psychological suffering that is intolerable to me in the circumstances of my condition, and if the law permits, the Representative may give or refuse consent on my behalf to receive medical assistance in dying.”
Lawmakers negligent
Unfortunately, the lawyers who authored the MAID legislation don’t even seem to know that there is such a thing as a duly appointed legal Representative, the term used in British Columbia, or medical Power of Attorney as it is called in Ontario. There is no reference or correlation in the MAID legislation to these other critical pieces of enabling legislation by which we govern our lives. We can only wonder how many years it will take for the federal government to fix this blunder.
Ron Posno’s crusade
If you feel the need to help get these MAID legislative defects fixed, which currently leave thousands of Canadians in legal limbo as to their ability to plan for death with dignity, you are not alone.
Start here to learn about Ron Posno’s crusade: https://www.cbc.ca/radio/sunday/the-sunday-edition-september-30-2018-1.4841264/ontario-man-with-dementia-on-crusade-to-plan-his-own-death-1.4841267
“It should be a slam dunk to give people the right to make this choice when they’re mentally capable … in the face of a diagnosis that is not going to get better,” said John Getliff, a former Ontario court judge who was one of the witnesses on Posno’s application. “If they become somebody else down the road, this still applies, sort of the same way that a living will does, or a power of attorney that survives death. So I just can’t understand why it would be so hard for people to make the right call.”
That was three years ago. The rather obvious gaping ambiguity in the legislation did not get fixed in the 2021 amended edition. Talk to your Member of Parliament if you think it needs a push.
Advance requests “in keeping with the spirit of the Act respecting end-of-life care”
Meanwhile, a special Parliamentary Committee currently working to resolve the Advance Request consent issue is expected to report to Parliament by April 2022. Amendments to improve the current deficiencies in MAID legislation could take another year beyond that.
In the initial article published February 28, 2022, we referred to an expert panel that was supposedly working on further improvements to federal MAID legislation, including the issue of Advance Requests. In fact, the work of that particular panel of academics was completed in 2018 and informed the 2021 legislated changes.
The next phase of work was actually assigned to the Special Joint Committee on Medical Assistance in Dying, comprised of Senators and MPs. Unfortunately, rather than conduct their work and report to Parliament by April 2022 as planned, the Prime Minister chose to dissolve Parliament in August 2021 so that we could have an election that gained the country nothing. This abruptly nixed the Committee’s work. It appears to have been abandoned indefinitely.
Meanwhile in Québec, their Select Committee on the Evolution of the Act respecting end-of-life care completed and tabled a report to the Québec National Assembly in December 2021, including support for advance requests.
In comments prefacing their recommendations for advance requests, the Committee stated “Taking into account the issues raised during the public hearings, in the briefs submitted and in the online consultation, we have arrived at a comprehensive vision of the extension of medical aid in dying for persons who have become incapacitated. We have made a point of turning over every stone to cover and address all aspects of this topic. Based on our discussions, we have concluded that the advance request for medical aid in dying should be permitted with strict supervision in anticipation of loss of capacity due to neurocognitive disorder. In our opinion, the advance request is in keeping with the spirit of the Act respecting end-of-life care and would be a logical development. Indeed, this Act already recognizes the right of patients to refuse certain care in advance.”
The legislative agenda of the National Assembly is uncertain as a provincial election in Québec is expected to be held October 3, 2022.
Second Opinion QB contacted two medical practitioners with expertise in MAID in preparation for writing this article.
Dr. Stephanie Green, a doctor practising in Victoria, British Columbia is the co-founder and current President of the Canadian Association of MAID Assessors and Providers (CAMAP). According to her biography, Dr. Green is medical advisor to the B.C. Ministry of Health MAiD oversight committee, and is also on the clinical faculty at the University of British Columbia and at the University of Victoria.
Dr. Jonathan Reggler, a family physician practicing in Courtenay, British Columbia, is a member of the board of directors of Dying with Dignity Canada.
Neither physician agreed to be interviewed for this article about MAID or the plight of Eileen and Trevor Wicks. — Editor