Family sues after man allegedly got medically assisted death during day pass from hospital

The family of a B.C. man with bipolar disorder and chronic back pain is suing the federal and provincial governments after he allegedly used a day pass from hospital to end his life with medical assistance.

In a lawsuit filed in B.C. Supreme Court, the man's family claims the 52-year-old — known as JMM — fell into a group of people whose concurrent physical and mental illnesses leave them "vulnerable" under Canada's medical assistance in dying (MAiD) framework.

"JMM received approval for medical assistance in dying, but he subsequently expressed that he did not wish to proceed with the procedure and instead, he wished to pursue other treatments, including rehabilitation," the claim reads.

"Regrettably, while receiving treatment at St. Paul's Hospital for his incapacitating illness, JMM left the hospital on a day pass, visited a clinic in the afternoon, and died through the improper administration of MAiD."

'Heightened risk of premature death'

JMM's children, his former spouse and his father will be in court Friday seeking to keep their names anonymous and to seal any documents filed in the case beyond the notice of claim.

It's the second time the MAiD framework has come under the scrutiny of the court in recent months. In late October, another judge issued a last-minute injunction to prevent the medically assisted death of a woman planned for later the same day.

In that case, the judge said there was a "serious question to be tried in B.C. about whether there should be judicial oversight when someone chooses to die pursuant to the MAiD exemption provisions," which protect doctors from criminal liability for aiding suicide.

In JMM's case, his family claim the rules exclude people whose sole issue is mental illness from ending their lives with medical assistance. But they say that safeguard falls away when a person also has a physical illness.

"This failure exposes the vulnerable group, including JMM, to a heightened risk of premature death facilitated by the state and discriminates against them by denying equal protection under the law," the lawsuit says.

In addition to damages for wrongful death, JMM's family wants a judge to declare a breach of his right to life, security of the person and equal protection under the law guaranteed by Canada's Charter of Rights and Freedoms.

'Wrongfully approved for MAiD'

According to the notice of claim, JMM "had a long-standing history of mental illness and was formally diagnosed with mental illnesses including bipolar disorder in or around 2013."

"He also experienced chronic back pain," the claim reads.

"However his pain was neither grievous nor irremediable and therefore did not meet the statutory eligibility criteria for MAiD."

The lawsuit claims JMM was "wrongfully approved for MAiD" despite factors that should have disqualified him — including influence from external financial pressures and the lack of capacity to give informed consent.

"After being allegedly approved for MAiD, JMM indicated that he did not wish to proceed with the procedure and wished to pursue other means to relieve any suffering he had, including rehabilitation," the claim says.

JMM's family claim they voiced their concerns but received no response from the parties they are now suing. In late 2022, they allegedly got a court order under the Mental Health Act, committing JMM to the psychiatric ward at St. Paul's.

According to the court documents, JMM's treating physicians were aware of the fact he'd been approved for MAiD but "opined that JMM should not receive MAiD due to his mental illness, which impaired his capacity to consent."

"Nonetheless, the defendants negligently or recklessly allowed JMM to leave St. Paul's hospital and undergo MAiD, thereby causing JMM's death," the lawsuit reads.

The family claims they "were not informed of JMM's departure from St. Paul's hospital until after JMM had undergone MAiD."

Intersection of physical and mental illness

In 2021, the Senate passed a bill that would expand access to MAID to people with grievous and incurable mental illnesses beginning in March 2023. However, before it came into effect, the government announced a one-year delay. 

In 2024, the expansion was delayed again, this time until 2027.

The issues concerning the intersection of physical and mental illness in JMM's claim echo concerns raised in the October injunction application filed the day before a 53-year-old Alberta woman known as NB was scheduled to end her life in a Vancouver clinic.

According to a ruling in that case, the woman's common-law partner filed to stop the procedure.

NB had been diagnosed with bipolar disorder and had concluded she also had a condition called 'akathisia' — "characterized by restlessness, terror, agitation, inability to sit still and burning skin sensations."

Her partner claimed she was rejected for MAiD in Alberta but was approved after assessment through video calls with two doctors in B.C.

"I believe that NB suffers from mental health problems which, to date, have not been treated properly and which underpin her wish to apply for MAID," the woman's partner claimed.

"I believe her mental health issues and the symptoms from medication use impact her ability to make decisions in relation to MAID."

The judge who issued the injunction concluded that NB's situation appeared "to be a mental health condition or illness, without a link to any physical condition, and it may not only be remediable but remediable relatively quickly."

He noted that a similar case in Alberta had seen a court set aside an injunction preventing the MAiD process from being carried out.

"It did so on the basis that the adult patient's own dignity and right to self-determination outweighed the considerations raised by her father," the judge said.

"I am told ... however, that the decision was stayed pending the hearing of an appeal, and the patient withdrew from the MAID process before the appeal was heard."

None of the parties named in the latest lawsuit have responded to the claim, and none of the allegations have been proven in court.

A spokesperson for Providence Health Care, which operates St. Paul's Hospital, declined to comment.