Canadian appeal court to hear case of hospice refusing to offer euthanasia

CNA Staff, Aug 28, 2020 / 11:01 am

The British Columbia Court of Appeal has agreed to hear a case of a hospice trying to preserve its historical opposition to participation in the provision of euthanasia.

The Delta Hospice Society is due to lose $1.5 million in funding from the Fraser Health Authority, a public health care authority in British Columbia, and its permission to operate as a hospice, in February 2021.

Euthanasia and assisted suicide were legalized federally in Canada in June 2016. As of April 2019, at least 6,749 Canadians had died of euthanasia or assisted suicide.

The hospice's case regards its efforts to hold a meeting and vote on proposed changes to its constitution and bylaws that would define its Christian identity and exclude the provision of euthanasia and assisted suicide.

The Supreme Court of British Columbia ruled in June that the hospice had acted wrongly in its attempts to define its Christian identity and to exclude euthanasia, because it had not been indiscriminately approving new applications for membership during 2020.

The hospice's actions were challenged by three of its members, Sharon Farrish, Christopher Pettypiece, and James Levin.

The Delta Hospice Society has appealed the June decision.

The hospice was founded in 1991 as a community organization. The legalization of euthanasia in Canada led to governance problems for the Delta Hospice Society, according to Madam Justice Shelley Fitzpatrick, the judge who wrote the June decision.

Farrish became executive director of the Delta Hospice Society in June 2019, when the society had about 160 members. In that year "which I take as principally arising from Ms. Farrish's leadership, there was an increasing view that [Medical Assistance in Dying] should be offered by the Society," Fitzpatrick wrote.

During the course of 2019, membership in the hospice society swelled; it was about 400 at the beginning of October, and 620 by the end of November.

"The clear inference is that the MAiD issue caused substantial interest in the community, and motivated people to get involved in the Society so that they could express their views at the [Annual General Meeting] as members of the Society," according to Fitzpatrick.

At a general meeting in November 2019 "there were sweeping changes" to the hospice's board; Pettypiece was among a group of directors who were elected but then resigned or were terminated.

According to Fitzpatrick, the new board opposed provision of euthanasia at the hospice's facilities, and Farrish was terminated as executive director.

Delta Hospice Society has been opposed to euthanasia and assisted suicide.

CNA reported in November 2018 that the hospice maintained physician assisted suicide was "incompatible" with hospice palliative care, and that it was being pressured to provide it was incompatible with its mission.

And in January, CNA described Delta Hospice Society as "not affiliated with a religion, but … opposed to euthanasia as a matter of principle."

Angelina Ireland, president of the board of the hospice society, told CNA in February that the hospice has "worked really hard to have the people to trust us that when they come to hospice they will not be killed. We will take care of them, they will take care of their families. And now basically the government has said that any hospice that does not provide euthanasia, it's not allowed to exist."

Since then, the board of Delta Hospice Society has worked to preserve its character as an organization that allows for natural death.

Ireland sent a letter to members of the society in May saying it was "obvious that we must return to our roots and fully affirm our Christian identity," and urging the acceptance of a new constitution and bylaws. Her letter also served as a notice of a June 15 meeting that was to effect these changes.

The proposed new constitution of the hospice society would call it "a Christian community" meant "to provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible, until their natural death."

The existing constitution, last updated in 2017, says the society exists "to provide compassionate care and support for persons in the last stages of living, so that they may live as fully and comfortably as possible."

Ireland interprets the existing constitution "as excluding the provision of MAiD by the Society," Fitzpatrick wrote, adding: "However, it is clear enough that this interpretation is not shared by all members, including the petitioners."

The members who challenged the changes in court sought to have the meeting cancelled or postponed, and argued that "the Board has improperly denied memberships to certain persons."

Sine November 2019, according to Farrish and her fellow petitioners, the board has granted membership to applicants who oppose euthanasia, and denied the applications of those in favor of the practice, with the intent of preventing the acceptance of euthanasia by the Delta Hospice Society.

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Ireland has confirmed that 310 applications were rejected.

The membership of the society was about 600 in March, and was 1,400 by mid-April, according to Fitzpatrick.

According to Farrish and her fellow petitioners, anyone who applied for membership and contributed the membership fee was accepted, until 2020.

Under British Columbia's Societies Act, the directors of societies do not have discretion to deny membership on any self-determined basis unless criteria for membership are set out in the society's bylaws.

Fitzpatrick wrote that "It is clear enough from Ms. Ireland's affidavit alone that the Board has sought to screen membership, allowing only those that could be determined to uphold the Constitution as she and others on the Board interpret it. However, what the Board has also effectively done is deny membership to people who, in the past, would have been granted membership. The Board has done so with the express intention of preventing those who would have become 'new' members from voting on what is to be a very important decision in the direction of the Society."

She rejected the Delta Hospice Society's argument that its board has full discretion to determine membership, and found that the board "has not been acting in good faith in terms of admitting members on a proper basis."

The hospice society has appealed Fitzpatrick's ruling.

The British Columbia Court of Appeal held a hearing on the case Aug. 17 that was adjourned.

Ireland said that the appeal is a welcome chance "to argue on constitutional grounds why it's wrong for the courts to force us to let a hostile group take over the Society, change its foundational purposes, and seize the assets built up for over 30 years."

She has said that Fitzpatrick's ruling that the rejected applications must be accepted "gave carte blanche to organized groups to perform hostile takeovers of private societies that hold minority views."

She added that "it would mean thousands of societies can now be taken over by any organized group of a few hundred people. That is not how a free society is supposed to work."

She has said there is a "public and coordinated campaign to infiltrate the Delta Hospice Society and overwhelm the existing membership with those who do not share our constitution. Their whole purpose was to reverse our policy on euthanasia."

Pettypiece, Levin, and Farrish are, in fact, associated with and can be contacted through the 'Take Back Delta Hospice Movement', the goal of which "is to engage concerned citizens to become members of the Society" so as to vote in a new board.

Take Back Delta Hospice believes the current board's efforts not to participate in euthanasia "are both inconsistent with the Society's moral responsibility to serve the entire community without discrimination and incompatible with the founding principles of the Society upon which its brand, its assets and its goodwill have been built since 1991."

The board argues that Fitzpatrick's ruling erred in ordering open acceptance of membership applications, and that she treated the hospice society not as a private association, but as a public institution. If the Societies Act requires such an order, it violates rights of association and freedom of conscience, they argue.

Pettypiece said earlier this month that Delta Hospice "should be available to all that require hospice care, regardless of their end-of-life choices. We are committed to ensuring a membership that reflects the wishes of the entire community."

Euthanasia is readily available at Delta Hospital, which is located a one-minute drive from the Delta Hospice Society's Irene Thomas Hospice. Delta is part of the Vancouver metropolitan area.

In British Columbia, the death certificate of those who are euthanized or commit assisted suicide list Medical Assistance in Dying as the immediate cause of death, with antecedent causes giving rise to the euthanization or assisted suicide listed subsequently.

The carrying out of the euthanasia and assisted suicide in Canada have led to questions over the imprecision of the country's requirements, from family of patients, disability advocates, pro-life groups, and bioethicists.

Eligibility is restricted to mentally competent Canadian adults who have a serious, irreversible illness, disease, or disability. While to be eligible a patient does not have to have a fatal condition, they must meet a criterion variously expressed as they "can expect to die in the near future", that natural death is "reasonably foreseeable" in the "not too distant" future, or that they are "declining towards death".