An Ontario hospital that wants to discharge a suicidal man with a crippling brain disease threatened to start charging him $1,800 a day, and suggested his other options included medically assisted death, according to a new lawsuit.

It also claims Canada’s new assisted dying laws are unconstitutional and should be struck down because they do not require doctors “to even try to help relieve intolerable suffering” before offering to kill a terminally ill patient.

The scandalous claims, as yet untested in court, are among the first major court challenges to the law, created in 2016 by the federal government in response to a Supreme Court ruling that struck down the criminal ban on assisted suicide.

Critics have long feared that, once assisted dying was legalized, its legal borders would creep ever wider to include children and the mentally ill, and that hastening death would become the knee-jerk solution to the many intractable problems of end of life care.

Roger Foley, 42, claims this is how he is being treated — forced to choose between suicide and a medically assisted death — and that it is illegally cruel and unusual. He alleges he has been fighting health authorities for the right to manage his own in-home care, but rather than “assisted life” in his own home, he has been offered assisted death in a hospital.

He does not want it.

“My condition is grievous and irremediable, but the solution is assisted life with self-directed funding,” he said in a video about his lawsuit that was posted online. “I have no desire to take up a valuable hospital bed but at this point it’s my only option.”

Formerly a manager with a bank in London, Ont., Foley describes a life of increasing neurological symptoms, leading to a diagnosis of cerebellar ataxia, a degenerative brain condition that affects motor control. In his case, it has progressed in recent years to rob him of his independence.

“I have gone from being an active person to on some days not even being able to get out of bed because of the neuropathy, chronic fatigue and inability to coordinate my limbs,” he said. “Despite these physical challenges and deteriorations, I’ve managed to keep a positive attitude.”

https://www.youtube.com/watch?v=T2c45uPBijQ

But his experience with Ontario’s regime of in-home care, in which contractors carry out work on behalf of local health integration networks, “has broken my spirit and sent my life into a void of bureaucracy accompanied by a lack of accountability and oversight.”

He claims the home-care workers sent to assist him have given him the wrong medication, served spoiled food that poisoned him, fell asleep in his house, left burners lit on the stove, caused an actual fire, and injured him during exercises and transfers, sometimes after literally dragging him across the floor.

“There was rotting food everywhere, vast amounts of mould, medication scattered on the floor and countertops, and obvious signs that Mr. Foley had been treated roughly and was in poor mental and physical shape,” his lawsuit claims

He said he would complain and get no response. When he objected to certain workers, the agency would threaten to send no one at all. This left him feeling trapped, and he started to think about suicide as the only option, to the point of setting a date and making a plan.

Instead, he ended up in hospital, where he researched programs that would allow him to manage his own in-home care. He applied and was refused, then appealed and has not yet learned the outcome, in a system he claims is unfair.

After months in the hospital, he claims administrators threatened to force his discharge, while at the same time offering assisted death. “In other words, the defendants gave Mr. Foley a choice between suicide or medically assisted suicide, rather than simply working with him to relieve intolerable suffering in a respectful patient-centred manner,” the lawsuit reads.

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His lawsuit names a hospital in London, a regional health integration network, a centre for independent living, Ontario’s health ministry, the province and the federal government. None have replied or commented on the action, but Ottawa has indicated it will defend.

It has little choice. The suit claims Canada’s medically assisted dying policies are “dangerous as they can be used to facilitate the humiliation and abuse of persons with disabilities in times of desperation without any steps being taken by medical staff or the defendants to help these vulnerable disabled patients relieve their suffering or assist such patients with life.”

Offering death without first trying to alleviate suffering makes the assisted dying sections of the Criminal Code unconstitutional, the lawsuit claims.

Eike-Henner Kluge, a bioethical philosopher at the University of Victoria who does clinical work with dying patients, and who also advised Sue Rodriguez in Canada’s first major Supreme Court case on the issue, said it is unlikely a doctor would have put such a stark choice to a patient. To suggest death would be “ethically questionable,” he said, because it should only come up on patient request.

But he said Foley’s claim seems constitutionally unsound because it is not possible for the federal government to require doctors to offer appropriate palliative care.

“You can’t do that,” he said. “The federal government has no jurisdiction over health care, as a matter of Constitution. Therefore it cannot stipulate in the Criminal Code any matter dealing with health care.”

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