Ban on assisted dying at St. Martha's hospital should end, says law prof

Nova Scotia's only Catholic hospital is at risk of being found in violation of the Charter of Rights and Freedoms and human rights legislation by refusing to provide medical assistance in dying, a Halifax law professor says.

St. Martha's Regional Hospital in Antigonish, N.S., is a publicly funded health-care facility. But due to its religious ties, staff are not permitted to provide MAID.

Dalhousie law professor Jocelyn Downie says the hospital's refusal to provide medical assistance in dying — and the Health Department's and Nova Scotia Health Authority's implicit support of that policy — would not stand up to a court challenge.

It also puts vulnerable patients at risk of even greater suffering or losing capacity to consent to MAID if they are forced to be transferred to another location, she said.

"I just think it's indefensible to have a publicly funded institution have a faith-based filter on the services that are available," said Downie, who is also an Order of Canada recipient.

The hospital was run by the Sisters of St. Martha until 1996, when the Eastern Regional Health Board took over. When that happened, the sisters, the board and the Health Department signed an agreement to ensure the hospital's Catholic identity and values would be preserved.

That mission assurance agreement expressly forbids "assisting suicide" as well as abortion.

Dr. Mark Taylor, the Nova Scotia Health Authority's acting vice-president of medicine, said even assessments for MAID — used to determine whether a patient is eligible — are not permitted at St. Martha's, although exceptions have been made.

Taylor said patients requesting MAID can receive the service at home or be transferred to another hospital.

"The difficulty arises when patients are frail and they can't be transferred," he said. "That can potentially lead to significant issues."

Taylor said he has only heard of one case in which a St. Martha's patient was transferred, and "everything worked out well."

But Downie said MAID should be provided at St. Martha's, at least for patients who cannot be transferred.

She said the province could simply pass legislation requiring the hospital to offer MAID, or the Nova Scotia Health Authority could choose not to renew the mission assurance agreement.

But Downie said her preferred solution would be to have MAID provided at St. Martha's unless a patient can be moved to another location without extra suffering or endangering their capacity to consent.

"Let's have the solution that enables us to respect as many people's beliefs and values while not sacrificing access to MAID," Downie said.

'Just a matter of time'

The CEO of Dying with Dignity Canada, a charity that supports end-of-life rights, said the problem is far from unique to St. Martha's, as there are many religious hospitals and hospices across the country that refuse to provide MAID.

"It's a mess in terms of people's access," said Shanaaz Gokool. "It is just a matter of time before a case comes to court."

In other parts of Canada, residents have been forced to have their MAID assessment or sign papers on the sidewalk or in a bus shelter outside the hospital.

Gokool said that's not acceptable.

"Is that really how we treat the most vulnerable people in our country at the time of their greatest need — to put them out on the street?"

Dying with Dignity Canada is exploring all political and legal solutions to the problem, Gokool said.

MAID policy coming soon

Although Canada's federal legislation on MAID came into effect two and a half years ago, Nova Scotia still does not have a MAID policy. Taylor said it's in the final stages of authorization and should be finalized in about a month.

While Taylor would not speak about the details of that policy, he said he hopes it will resolve the issue of access to MAID at St. Martha's.

"It's our job to ensure that appropriate health-care services are available to the entire population," he said. "That's what we have to take into consideration as we develop the policy."

Taylor said as far as he knows, the NSHA is not considering lifting the restriction on abortion at St. Martha's.