Ending Life Support

Ending Life Support is a very topical and controversial topic in recent years and on a continual basis.

Life SupportThe question of termination of life often raises strongly held beliefs. In recent years we have seen several contentious cases dealing with questions ranging from doctor assisted suicide to the withdrawal of life support systems.

Remember Terri  Schiavo the Florida woman whose case provoked a legal struggle that lasted from 1998 to 2005? After a judge ordered the removal of her  feeding tubes, several appeals and government interventions followed, including President George W. Bush signing legislation designed to keep her alive.  She finally died 2 weeks after life support was finally terminated.

There is a clear distinction between making a legal decision to withdraw life support and acts of euthanasia and assisted suicide. Under Canadian law, both euthanasia and assisted suicide are currently criminal offences.   Paradoxically, there is no law against suicide itself .  Thus unsuccessful candidates cannot be prosecuted.

End of life concerns arisedaily in our medical system.   According to a 2001 article entitled “Issues to consider when ending life support” in the American College of Physicians ACP Internist,  75% of U.S. hospital deaths occur after decisions made in consultation with the patient or patient’s family to withhold or withdraw treatment.

Where  no such decision is made, a patient may remain on life-support systems for a lengthy period until he or she ultimately dies.   Leaving aside any ethical or moral questions, the patient’s quality of life is presumably abysmal and the financial costs are staggering.

When a decision is made to withdraw life support, this is often done by withholding food, hydration, and ventilation.  Controversy may arise as to whether or not this should occur and it may take several days to die.    One may be tempted to ask:  Would I want my own life terminated in such a manner?

Examining the question of Withdrawal of Life Support

It is worthwhile to re-examine the conditions under which our society is willing to sanction the withdrawal of life support systems.

Such questions generally arise in a legal context in the case of mental incapacity because provided an adult person is mentally competent, that person may lawfully refuse life-sustaining medical treatment, for example kidney dialysis.

It is crucial to recognize that death is inevitable—all that life support systems do is postpone that inevitability—they do not prevent death, rather they simply prolong life.

 

 

Canadian Case Law

An interesting examination of some of these questions recently arose in the caseof Alberta (Child, Youth and Family Enhancement Act, Director)  v D. L.  2012 ABCA 275 (appeal decision)2012 ABQB 562(trial) The trial decision also involves an excellent review of the law.

This case involved a 2 ½ year old girl who was brought to hospital in cardiac arrest which resulted in irreversible brain damage. After three months she remained deeply comatose and completely dependent on technology to remain alive.  She had already undergone three episodes of pneumonia and would inevitably require invasive surgery with significant risks of bleeding and infection—for example her temporary tracheotomy tube would have to be replaced with a more permanent one.   All medical specialists, including her treating physicians, unanimously agreed her condition was hopeless and that no further intervention was warranted.

The girl’s parents  had signed a “do not resuscitate” direction on admission, however they were since charged with aggravated assault of their daughter and held in custody pending trial.  Presumably if she died, they would face far more serious charges.

The provincial Director responsible for youth, had obtained an apprehension order from the court and commenced an application for permanent custody which was pending.   The Director also brought an action in Alberta superior court (our equivalent of B.C. Supreme Court) asking the Court to invoke its parens patriae jurisdiction.

Parens patriae is the inherent jurisdiction of the superior courts to intervene to protect children and promote their well-being.  This jurisdiction was developed historically by the common law and is founded on the necessity to act to protect those who cannot care for themselves.

The parents opposed the Director’s application to the court to apply its “parens patriae” jurisdiction and raised religious arguments opposing the application.

The court acknowledged the clear conflict of interest of the parents comparing  their situation to  the usual role of parents in providing instructions to medical staff in such dire situations.

The trial judge examined past cases involving the use of parens patriae jurisdiction.  In particular she cited the Supreme Court of Canada case of E (Mrs) v Eve (1986) 2 SCR 388, 31, DLR (4th) 1. She referred to the Court’s opinion that the parens patriae “jurisdiction is very broad in nature and can be involved in matters regarding custody, health problems, religious upbringing, and protection harmful associations (at 426).” Furthermore,  she relied on that decisions as saying the jurisdiction may be exercised “not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended,” (at 426)

Religious Beliefs.

In terms of deciding the question of religious beliefs, the trial judge again referred to Supreme Court authority which held that the parental interest in terms of freedom of religion, while a fundamental aspect ,is not absolute and that religious practices can be limited where they  impact on fundamental rights and freedoms of others. Thus it was a matter of weighing the both the parents’ rights to freedom of religion and the girl’s best interest.

Terminating Treatment  –Is it in The Best Interests of the Patient?

The trial judge again reviewed several authorities where those with decision making authority on behalf of the patient were in conflict with each other or with the views of the medical team .  Shecited with approval Lord Goff in Airedale NHS Trust v Bland, (1993) 1 All ER 821 (HL) ,

Lord Goff  succinctly framed the issue as follows “the question is not whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.” (At para 33)

Having reviewed the law, the judge concluded that she did have parens patriae jurisdiction to make an order in the best interests of the child in this case.  She observed that the cases reflect a “general  societal understanding that a life without awareness and totally supported by machines is not in accord with the best interest of any patient, including a child,”.  She found the evidence in this case, to be clear and unequivocal that it was in the girl’s best interest that life-sustaining treatment be stopped. There was unchallenged evidence that she would never regain consciousness and be interactive and that she would require invasive treatment imminently simply to be maintained on a ventilator.

The trial judge also found that although the parents’ religious beliefs were entitled to consideration, they were not determinative and were contrary to the child’s best interest in a fundamental way.

Accordingly the trial judge directed that  it was in the girl’s best interest that the recommendation of the medical team be followed and that the girl be withdrawn from life-sustaining treatment and provided with palliative care.  This decision was upheld by the Court of Appeal.

Conclusion

In summary, in Canada where it is the unanimous opinion of the medical specialists that treatment should be stopped because the patient’s continued life would be without awareness, without hope of recovery and with the need for invasive treatment with no potential benefit, then it is likely the court will find that continued life support should be terminated in the best interests of the patient.

As a practical matter, legal professionals should make their clients aware that in addition to a will, they ought to have a Representation Agreement or other form of Advanced Health Care Directive relating to the kinds of treatment that he or she would accept if the client is to become incapable.  Such documents are relatively inexpensive to prepare and can relieve a great deal of family stress at a very difficult time.

– See more at: http://www.disinherited.com/blog/ending-life-suport#sthash.T6OWzYon.dpuf

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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