March 18, 2022

Sometimes a case comes before the courts that sounds more like television drama than real life. This is true in the case of Obodzinski, et al. v. Estate of the late Veronica Kalimbet Piela (Quebec Court of Appeal). A nefarious couple – together with a greedy social worker, a crooked lawyer, and a duped doctor – conspired together to steal Mrs. Veronica Piela’s property.

The crooked four prepared a counterfeit document regarding her incapacity and obtained approval from the courts to take over the decision-making capacity for Mrs. Piela. Following this, the criminals took all the funds out of Mrs. Piela’s bank account, broke into her home, and obtained another court order removing her from her home and placing her in a seniors’ residence. Soon after, Mrs. Piela fled the seniors’ residence, after which police found her, believed her story enough to investigate the situation, and discovered the truth. The court rescinded the incapacity mandate once the forgery was exposed.

Thankfully, the four people who had mistreated Mrs. Piela were criminally charged. And after Mrs. Piela’s death a short time later, her Estate successfully sued the perpetrators for damages.

This is a sad story of elder abuse, and we can be thankful that justice was done in this case. However, it raises concerns about the possibility of abuse in other end-of-life situations in Canada.

What if Mrs. Piela had been sent to a euthanasia provider instead of a seniors’ residence? Would the crime ever have been uncovered at all?

Lack of safeguards in Canada’s euthanasia regime

The expansion of euthanasia through Bill C-7 in 2021 removed various safeguards meant to protect vulnerable Canadians. One issue that often arises in discussions about eligibility for euthanasia is whether the patient has the capacity to consent; that is, whether they can make reasoned decisions for themselves.

Capacity can be lost temporarily or permanently because of various illnesses or tragic events. Incapacity ultimately refers to the inability to make a decision with a sound mind. It applies to those who are unable to understand information relevant to a decision and/or unable to understand the consequences of that decision. It can also refer to whether or not a person is able to make decisions regarding their own affairs. People who are incapacitated often need to hand over the responsibilities of managing finances, property, or legal matters to family members or friends. Lack of capacity must be proven to a court by the person’s medical team or other professionals.

Euthanasia will be expanded to people with mental illness on March 17, 2023, unless Parliament acts to change the law. In that context, there are questions about how mental illness affects decision-making capacity. Capacity can be difficult to determine because of the multiple factors at play in mental illness, including how mental illness may affect decisions even when a person is capable of understanding the different components involved. If someone struggles with depression, for example, they might lack full decision-making capacity when offered euthanasia as an option.

In light of the complexity of determining capacity and the importance of protecting vulnerable Canadians, we wanted to highlight the story of Mrs. Piela above. The case is not connected to euthanasia directly but is a chilling example of ways people can be abused through falsification of documents and improperly determined incapacity.   

Euthanasia and Incapacity

Prior to the changes made through Bill C-7, a doctor administering euthanasia was always required to give the patient an opportunity to withdraw their request for euthanasia, and the patient had to give final consent immediately before being killed.

The current law around euthanasia states that if a person is worried about losing the capacity to consent, they may arrange with their doctor to be euthanized by a specific date if they lose capacity prior to that day. The decision about whether the patient has lost capacity is made by the doctor, who can then kill the patient despite their lack of capacity to give consent, as long as capacity is lost before the date set in the arrangement.

When Parliament passed Bill C-7 to expand euthanasia, the preamble recognized “the inherent risks and complexity of permitting medical assistance in dying for persons who are unable to provide consent at the time of the procedure.” The Criminal Code also clarifies that the consent is void if the patient demonstrates any refusal to the administration of euthanasia. Yet, there are no safeguards in place to ensure that the patient is not objecting at the time the doctor kills them if they give advanced consent.

At this point, a patient can only sign a waiver of final consent if their death is ‘reasonably foreseeable.’ Various groups are pushing to expand that so that anyone can sign an agreement with their doctor that describes a situation where they would want to be euthanized, even if they have no medical diagnosis and are not currently eligible for euthanasia.

Canada’s Euthanasia Law

Canada’s euthanasia law is full of risk and potential for abuse. Imagine a similar situation to the case of Mrs. Piela, but where the perpetrators falsify documents around incapacity and a waiver of final consent for euthanasia. The details of the case would never be discovered because euthanasia is irreversible. Remember, this case only came to light because Mrs. Piela herself fled the seniors’ residence and told her story to the police. The issue of capacity and advance consent adds another level of complexity that makes it hard to determine whether foul play is involved.

Expanding euthanasia creates more opportunities for harm. Canada has one of the most open laws around euthanasia in the world. At best, Canada would prohibit euthanasia and assisted suicide as we did until 2016. At the very least, the government must ensure that there are many more safeguards than we currently have in place to protect vulnerable Canadians.

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