Alberta Appeal Court (Child, Youth and Family Enhancement Act, Director) v D. L. 2012 ABCA 275 and 2012 ABQB 562.
“Right to die”, and “pull the plug” cases are increasingly before the courts and in the media as a more informed public, push the boundaries of legal principles in a continuing interaction with radically changing medical technologies .
Such was the September 14, 2012 decision of the Alberta Court of Appeal in this decision that instantly became a nationals interest story. The court ordered that life extending treatment for a catastrophically and irreversibly injured young child be withdrawn. An application for a further stay, pending an application for leave to appeal to the Supreme Court of Canada was dismissed.
The child passed away shortly thereafter.
This case falls into what might loosely be categorized as the “pull the plug” type factual scenarios that typically involve a matter of life and death relating to a person who is incapable of making such a decision him or herself.
These facts are juxtaposed to recent applications where parties have applied to the court for permission to terminate their own life in a lawful manner while they are still able to make the decision to do so, such as on June 15, 2012 when Justice Lynn Smith of the BCSC issued a 395 page ruling that granted Gloria Taylor the right to die in a doctor assisted suicide, and gave Parliament one year to change the law accordingly.
Fact of this case:
In late May 2012 paramedics attended a 2 1/2-year-old female child who was in cardiac arrest. She suffered a profound and irreversible brain injury as a result of the cardiac arrest. After three months she remained deeply comatose and completely dependent on technology to survive. The infant was almost brain-dead and it was believed by all physicians treating her that her situation was permanent and hopeless.
In fact, medically her situation would only worsen given that she would inevitably require various surgical procedures with significant risks of bleeding and infection. She had already undergone three episodes of pneumonia since her admission.
The unanimous recommendation of all of the specialists, including all treating physicians, is that life-sustaining therapy should be withdrawn.
The parents had initially signed a “do not resuscitate” order until they were charged and incarcerated with several serious criminal charges, including failure to provide the necessities of life.
The parents then completely changed their position and opposed the Director’s application to apply its “parens patriae” jurisdiction ( literally the role of the state, but here the Courts, to protect persons under a legal disability) to determine the course of treatment for the severely comatose infant.
The parents also raised religious arguments opposing the Director’s application stating:
” my religious belief is that if it is Allah’s will that despite all the doctors can do to for ( the child) , if she passes from this life then it is God’s will. As a devout Muslim and loving father I find it unthinkable to agree to limit her withdrawal medical treatment. I ask that the court honour my beliefs that the ultimate course of her life not be made by doctors limiting or withdrawing treatment. ”
His wife agreed with the statement.
The court acknowledged the clear conflict of interest of the parents who faced even more serious criminal charges if their child died, and compared their situation to the usual crucial role of parents in providing instructions to medical staff in such dire situations.
1. Did the Court have “parens patriae” jurisdiction, and if so, should it exercise it?
2. The role of religious beliefs where they conflict between a child’s parents or guardian and a medical team.
3. A review of the law relating to terminating treatment and the best interests of the patient.
1. Parens Patriae:
The child’s parents raised various arguments that the court should not exercise its inherent jurisdiction to protect children by making a treatment decision that would limit or end her life.
The court had little difficulty in overcoming these arguments and invoking its jurisdiction and referred to the following two Supreme Court of Canada decisions:
“[31 ] Parens patriae jurisdiction is vested in the provincial superior courts of Canada. The common law recognizes the power of the state to intervene to protect children, where their lives are in jeopardy, and to promote their well-being. This intervention is based upon the state’s parens patriae jurisdiction: B(R)v Children’s Aid Society of Metropolitan Toronto,  1 SCR 315, at para 88, 122 DLR (4th) 1.
 The history of parens patriae jurisdiction, as well as the scope and discretion in applying the jurisdiction, was canvassed by the Supreme Court of Canada in E (Mrs) v Eve,  2 SCR 388, 31 DLR (4th) 1. The principle underlying the application of parens patriae is the child’s “best interests,” and is founded on the necessity to act for the protection of those who cannot care for themselves. The Court is required to exercise this jurisdiction in the “best interests” of the protected person. Justice La Forest also stated that the categories under which the Court may exercise its parens patriae jurisdiction are never closed, the jurisdiction is very broad in nature and can be invoked in matters regarding custody, health problems, religious upbringing, and protection against harmful associations (at 426). Furthermore, the Court noted that 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).
 Noteably, the Court in Eve, stated there was no doubt parens patriae jurisdiction may be used to authorize the performance of a surgical operation necessary to the health of a person. However, the Court chose not to address the issue of whether the courts should permit the removal of life-sustaining equipment (at 427).
 A central requirement of the proper exercise of parens patriae jurisidiction is that the Court must consider only what is necessary for the protection of the person, for whose benefit the jurisdiction is exercised. The Court in Eve determined the discretion under parens patriae is to be exercised for the benefit of that person, not for that of others (at 427).
 Generally, in order to exercise parens patriae jurisdiction, there must be a legislative gap which requires the Court to exercise it’s discretion: Beson v Director of Child Welfare,  2 SCR 716; RR v Alberta (Child Welfare Appeal Panel), 2000 ABQB 1018,267 AR 249. Parens patriae cannot override express statutory authority: JU v Alberta (Regional Director of Child Welfare), 2001 ABCA 125 at para 7,281 AR 396.”
2. Religious Beliefs
The Court again canvassed two leading authorities relating to the conflict that can arise between a child’s parents and the treating medical team, again in the Supreme Court of Canada decision B(R) v Children’s Aid Society, and Sweiss v Alberta Health Services, 2009 ABQB 691, which dealt with religious beliefs held by a legally disabled adult patient.
The Supreme Court of Canada in the B(R) case held that the freedom of religion of the parents was at stake in the appeal, and not that of the child itself.
The right of parents to raise their children according to their religious beliefs, including moral upbringing and choosing medical and other treatments, is a fundamental aspect of freedom of religion.
The state may interfere only where it considers it necessary to safeguard the child’s autonomy or health and where such intervention is justified.
However, freedom of religion is not absolute and religious practices can be limited where they impact on the fundamental rights and freedoms of others.
In the adult case of Sweiss, ” Justice Ouellette found the patient’s direction regarding treatment is a factor which must be considered by the Court, whether or not those wishes are grounded in religious belief. However, religious beliefs cannot trump all other opinions or principles in determining what is in the patients’ best interests. Therefore, religious beliefs should be given considerable weight, but subject to the patient’s best interests (at para 44).
 The appropriate test to apply for injunctions where the situation is urgent and life-threatening is what is in the patient’s best interest. Justice Ouellette, at para 63, outlined several considerations including:
(1) The medical condition of the patient;
(2) The recommended medical treatment, which includes doing something, nothing, or very little;
(3) The wishes and beliefs of the patient, if they are known; and
(4) What is just and equitable in all of the circumstances of the case.
 The Court found as a general premise, that courts and patients should not require doctors to provide a course of treatment which is not in the patient’s best interest. The Court would not order the removal of the DNR because it would be in Mr. Sweiss’ best interest that there be no attempts at resuscitation, based on the doctor’s evidence that active intervention would create substantial harm and no benefit. However, the Court issued an interim injunction to prevent the removal of the mechanical ventilator in order to obtain an independent assessment regarding Mr. Sweiss’ condition (at paras 66-70).”
3. Limiting or Terminating Treatment and the Best Interests of the Patient
The court reviewed five decisions where conflict arose between those with medical authority on behalf of an incapable patient, conflicted with the medical team and recourse to the Courts was sought.
Re LIC (Dependent Adult), 2006 ABQB 130, 398 AR 229 concerned a dependent adult who suffered from a long-standing brain injury and was under the guardianship of the Public Guardian. She suffered a cardiac arrest as a result of which her condition declined, and she lapsed into a vegetative state. The doctors determined that there was no reasonable likelihood she would recover to pre-cardiac arrest neurological status. She would remain in a permanent vegetative state and ultimately would die because of an infectious complication.
The doctors recommended that the endotracheal tube be removed, and if the patient went into cardiac arrest, no further life-sustaining treatment would be undertaken. The doctors felt that any continuing medical care should only focus on comfort and supportive measures (at para 7). The family did not dispute this and entrusted the decision to the Public Guardian, who sought direction from the Court.
In considering what was in the best interests of the dependent adult, Justice Acton relied on the reasoning of Lord Goff in Airedale NHS Trust v Bland,  1 All ER 821 (HL) who stated
“the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care” (at para 33). (emphasis added)
The case gives a good review of the law relating to “parens patriae”, the conflict between religious beliefs and care providers, and the circumstances where the courts will intervene to the extent of terminating a human life under medical direction.
The latter issue is the most current summary of the law in Canada and can be summarized that if the unanimous opinion of the medical specialists is that life should be terminated by the courts, even over the objections of religious or other well founded concerns or beliefs, the bests interests of the patient will be followed by the Court, which likely will in turn mean that “life will not be prolonged by the continuance of medial treatment or care.”
– See more at: http://www.disinherited.com/blog/alberta-appeal-court-orders-life-support-infant-be-withdrawn#sthash.NnbLbhZx.dpuf