Judge rules doctors’ identities in assisted-dying case can remain secret

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Doctors supporting a Toronto man's request for a physician-assisted death can keep their names private after a judge called their interest in shielding their identities "obvious."

An 80-year-old man with advanced-stage, aggressive lymphoma is seeking a court's permission for an assisted death, with the support of his family, doctors and a psychiatrist. Canada's Criminal Code ban on physician-assisted death is set to expire on June 6, but the Supreme Court of Canada this year authorized Superior Court judges to approve applications from mentally competent adults who are suffering unbearably and irremediably from disease.

The ruling helps define how courts that are normally open and public will accommodate the intensely personal applications for an assisted death. In the only other known case, a Calgary judge closed her courtroom to the media and other members of the public last month, and sealed court files from public view, while granting permission for an assisted death to a retired psychologist suffering from amyotrophic lateral sclerosis, a degenerative neurological disorder.

Several media organizations, including The Globe and Mail, had argued in the Toronto case that making the physicians' names known could be in the public interest, if it turns out in subsequent cases that a small group of doctors is acting as "rubber stamps" in requests for an assisted death. The names could also be in the public interest by revealing to prospective patients who might help them achieve an assisted death, the media agencies argued. Media lawyer Peter Jacobsen, who also represented Postmedia, the CBC and CTV in the case, had asked for evidence as to why the doctors needed a publication ban on their names.

But Justice Thomas McEwen said evidence supporting a ban on the doctors' names was unnecessary in a case "where the privacy interests of the applicant about the intensely private and personal matter of his death are obvious, and where the privacy concerns about his family and physicians are equally obvious." The ill man, known as A.B., and the doctors had asked for their identities to be protected.

Justice McEwen said the doctors' concerns "are entirely reasonable, in my opinion, given the publicity and controversy surrounding physician-assisted death." He said a failure to protect their confidentiality could deter other doctors from participating in future cases, which he called "a public interest of great importance in these circumstances."

He also said the request for a publication ban on identifying information was moderate, compared with the Calgary case.

He added that other patients seeking an assisted death can ask their doctors for a referral, rather than seek names of doctors from news reports, and that the judge hearing A.B.'s case can ask whether the doctors have participated in similar cases.

Andrew Faith, a lawyer for the ill man, praised the ruling. "This decision will provide some comfort to those considering whether to make [an] … application since they will now know in advance that the court will protect their privacy and that of their physicians if they decide to take this deeply personal step."

Mr. Jacobsen expressed disappointment with the decision. "The media applicants sought as much transparency as reasonably possible while being very sensitive to the special circumstances surrounding assisted-death applications. Media applicants were of the view that allowing its counsel ‎to see an unredacted record on a completely confidential for-counsel's-eyes-only basis ‎would permit a necessary additional degree of oversight on this matter of great public interest and importance."

A.B. did not ask for a closed courtroom; instead, he sought a ban on the publication of information that could identify him, his family or his doctors. A.B.'s lawyers also asked that they be able to redact from court files any identifying information; in court, they offered to indicate with each redaction what kind of information is being concealed.

Mr. Jacobsen argued that he should be able to view the unredacted files and hold discussions with A.B.'s lawyers before any redactions are made. But the judge said that proposal was too time-consuming and would add unnecessary costs to A.B.

The hearing to determine whether a judge will permit A.B. to have an assisted death begins March 17.