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Judge rules Ontario woman meets requirement for medically assisted death

TORONTO — A judge says an Ontario woman with incurable erosive osteoarthritis fits a key requirement to receive a medically assisted death after her doctor refused to help her because he feared criminal prosecution.

In a decision delivered in a Toronto court on Monday, Superior Court Justice Paul Perell ruled the woman's "natural death is reasonably foreseeable."

He said the 77-year-old woman's doctor had reached the same conclusion but changed his mind because he feared he would be accused of murder.

Perell did not grant the woman's request to declare unequivocally that she meets all criteria for medically assisted death, but he noted that clarifying the federal law on reasonably foreseeable death would help her case.

Shanaaz Gokool, CEO of Dying with Dignity Canada, says she is pleased with the ruling and hopes it will give doctors more confidence in dealing with similar cases.

Gokool praised the woman, identified in court documents only by the initials AB, for having the courage to take her case to court so she can die with dignity.

"I want to applaud her for coming forward and putting herself in a very vulnerable position with this case," said Gokool, who has met the woman. "Now that her physician has some comfort, I am hopeful she will be able make a decision of her choice and her making now that she knows that her natural death is reasonably foreseeable."

Under the law, adults can receive a medically assisted death if they have a serious and incurable illness or disability, are in an advanced state of irreversible decline, endure intolerable pain, and face a “reasonably foreseeable” death.

The latter has been called too vague and has been a point of contention for health-care providers, Gokool said.

AB could still live for years with her illness, Gokool noted, but she said her condition is deteriorating, there are no treatment options and she "is definitely in the trajectory toward death."

"I think this decision may be able to help others in similar situations and it might bring enough clarity that doctors who have been hesitant about providing an assisted death may look to this decision," Gokool said.

In his ruling, Perell said he considered the reluctance of the doctor and did not want to create a situation where civil courts grant immunity from Criminal Code prosecutions.

"In my opinion, making this declaration of statutory interpretation would be useful and fall with this court's jurisdiction to interpret and declare the civil law," he said.

He also noted that AB's case, which he called “heartbreaking” and “pitiful,” was caused by doctors' misunderstanding the new law and being overly cautious.

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