Campaigners for the right to die are to have their arguments heard by the Supreme Court in the latest round of their legal battle.
It involves family of the late Tony Nicklinson of Wilts, who had locked-in syndrome, and Paul Lamb of Leeds, who was paralysed in a road crash.
They want the law changed so they can be allowed to die with the help of Legal correspondent, BBC News These cases raise some of the most profound ethical, moral and legal questions imaginable. Whilst it is not a crime to commit suicide, it remains a serious crime to assist someone to do so, punishable by up to 14 years imprisonment.
Paul Lamb’s argument is that the current law represents a disproportionate and discriminatory interference with his right to a private and family life under Article 8 of the Human Rights Act, because it does not allow him to end his life at a time and in a manner of his choosing – with the help of a medical professional. To fix that, he wants there to be a defence available to any doctor who assists a severely disabled person to end their life. This would be subject to strict safeguards, and would have to be sanctioned by a court in each individual case.
However, the defence is known as ‘necessity’ and it is based on the idea that it is necessary to assist to end a life in order to end unbearable suffering. That is hugely controversial and whilst many people will have enormous empathy with Paul Lamb and others like him, they fear that any relaxation in the law governing assisted suicide or euthanasia, would expose vulnerable groups such as the elderly, those with dementia and the disabled to pressure to end their lives so as not to be a financial or emotional burden.
There will be nine judges on the panel, rather than the normal five, overseeing the four-day hearing.
‘Unanimously dismissed’ Paul Lamb, 57, has been almost completely paralysed from the neck down since a car accident 23 years ago and says he is in constant pain.
He has called for the law to be changed so any doctor who helped him die would have a defence against the charge of murder.
Tony Nicklinson was paralysed from the neck down after suffering a stroke while on a business trip to Athens in 2005.
After losing his High Court battle last year, he refused food and died naturally, aged 58, a week later at his home in Wiltshire. His widow Jane is continuing his fight.
Earlier this year, Mr Lamb joined forces with Mr Nicklinson’s family to fight a joint legal battle.
‘Conscience of the nation’ In their Appeal Court case, the decision centred on whether the High Court was right to rule Parliament, not judges, should decide whether the law on assisted dying should change.
The three Court of Appeal judges unanimously dismissed the Nicklinson and Lamb challenge.
In the judgement, the Lord Chief Justice Lord Judge said Parliament represented “the conscience of the nation” when it came to addressing life and death issues, such as abortions and the death penalty.
“Judges, however eminent, do not: our responsibility is to discover the relevant legal principles, and apply the law as we find it,” he said.
At the same hearing a third paralysed man won his case seeking clearer prosecution guidance from the director of public prosecutions (DPP) for health workers who help others die.
The man, known only as Martin, wants it to be lawful for a doctor or nurse to help him travel abroad to die with the help of a suicide organisation in Switzerland. His wife and other family want no involvement in his suicide.
The Supreme Court will also deal with the DPP’s appeal against the Court of Appeal’s ruling in Martin’s favour.
Euthanasia For Terminally Ill Children Proposed In Belgium.
Further to my blog of a few days ago, Belgium is once again in the news as it is close to introducing legislation to grant euthanasia for terminally ill children, thus breaking what has been almost a universal tattoo.
It is expected that the law will pass a full Parliament vote and if so, it would make Belgium the first country in the world to remove the age limit for euthanasia procedure.
The Netherlands, a next-door neighbour, already allows euthanasia for children as young as 12 years, although these cases have rarely been recorded.
The new proposal in Belgium would remove any age limitation.
The law would also allow a psychologist to determine whether a child is able to choose to die.
“Death by Doctor” as euthanasia is often known, is strictly illegal in Canada.
Belgium however has in recent years enacted perhaps the world’s most liberal euthanasia laws. It is one of three countries along with the Netherlands and Luxembourg who have legalized euthanasia as a “medical alternative”.
A recent lethal injection given to a transsexual who suffered unbearable psychological and physical suffering following childhood abuse and terribly failed sex change operations, made international headlines.
What was unusual about the case was that the patient was not terminally ill, or even in much physical pain, but instead was primarily psychologically ill.
There is no requirement in Belgium that the patient be terminally ill, and in fact euthanasia has been granted to individuals who have predisposed genetic conditions leading to blindness and other undesirable conditions. The laws simply state that euthanasia is legal if the person who requested it is experiencing unbearable physical or mental point pain, resulting from an incurable accident or pathological condition. The request must be made in writing and approved by a physician after consultation with a colleague. A third doctor is consulted if the patient’s death is not imminent.
The view of the Belgian medical profession was that the ailing transsexual was really no different than someone suffering from multiple sclerosis or substantial paralysis.
Currently one in 50 deaths in Belgium are by euthanasia, and the trend is growing.
– See more at: http://www.disinherited.com/blog/belgium%E2%80%99s-liberal-controversial-euthanasia-laws#sthash.2JvUsSDB.dpuf
At age 37, actor Jack Nicholson learned that the person he had known as his life as his sister was actually his mother, and his “mother” was actually his grandmother. By the time he learned the truth, both had died without ever telling him the truth.
Closer to home, a Quebec born friend who was 21 years old, suddenly learned she was actually 23 years old. Her baptismal certificate had been forged by the village priest to hide her premarital conception. In our practice we have had DNA cases disclosing the existence of long hidden children and recently a case where the deceased made a deathbed confession to his wife and family about his second wife and 12-year-old daughter. It is a rare family with no skeletons in their closest. There are a myriad of reasons why people decide to hide details of a shameful incident, illicit relationship or other personal issue.
Many families have secrets and their nature varies considerably. They may involve infidelity, mental illness, sexual orientation, illegitimacy, substance abuse, physical or psychological abuse or any other of the myriad of human potential frailties. The non-disclosure sometimes takes on an energy of its own. Those kept in the dark may sense something unusual but not be able to put their finger on it. Some secrets go to the grave, while others are ultimately disclosed. Family members may lose their filters with dementia, or simply decide to unburden themselves at last. Historical secrets are still emerging today–for example, President Jefferson’s impregnation of a black servant. A descendent recently came forward to break that secret, now centuries old.
THE FOUR TYPES OF FAMILY SECRETS
John Bradshaw in his recent book “Family Secrets “describes four different categories of secrets: Secrets involving criminal activity, the more egregious the crime, the more likely the suppression. Secrets involving addictions such as substance abuse, eating disorders, gambling or chronic infidelity; Secrets involving family enmeshment issues which would include scape-goating individuals , infidelity, cruelty and mental illness; Individual secrets primarily harming the individual seeker holder relating to a self perceived shame , usually relating to guilt, anxiety, cultural shame, inferior education or social economic background.
A HISTORY OF HIDDEN SHAME
Deborah Cohen traces family secrets in a book: “Family Secrets: Living With Shame From the Victorians to the Present Day”. Ms. Cohen apparently spent several years researching her book, primarily because secrets proliferated everywhere she looked including the archives, courthouses, memoirs, personal letters, diaries, to court actions. Times have changed and events that were branded with a dreaded stigma a century ago, may hardly raise an eyebrow today. A child born “on the wrong side of the blanket” in Victorian times could shame the entire family. Indeed until relatively recently, pregnant young women were hustled off to homes for unwed mothers. Many parents now in their sixties have been reunited with biological children given up for adoption as infants. A widespread secret was sexual abuse in the home. Victims of this abuse have increasingly come forward, been believed and been validated. With the advent of home reality shows such as Jerry Springer, it is clear the current generation shares their secrets much more freely. With the advance of social media, including Facebook and Twitter, it is increasingly difficult to keep anything secret.
WHY FAMILY SECRETS ARE HARMFUL
According to some schools of thought, secrets may damage the well-being of the entire family because they destroy trust and healthy communication. In our experience, secrets sometimes ignite feelings of betrayal and resentment which encourages estate litigation. Family secrets may create a false sense of reality, especially among young children learning the world through adults. When such children grow up and finally learn they have been misled all their lives, they may well feel betrayed. For example, a fomer client was shattered to learn at 50, that his father was not his father at all. Perhaps worse yet was his realization that his family had lied to him all of his life. Experts believe suppressing traumatic secrets can result in stress, guilt, anxiety leading to physical and mental difficulties. No one is immune—neither the keeper of the secret nor those who live with that person. It seems many of our estate litigation clients come from dysfunctional families where secrets are the norm. What is especially disturbing to clients are cases where they learn after a parent’s death that a sibling has been secretly helping themselves to the parent’s monies before their death. Those who have money to litigate often do and the courts will scrutinize these transactions very carefully. In general terms however, it seems the risk of estate litigation is dramatically reduced if there is open communication rather than secretiveness which breeds a sense of betrayal and resentment.
CONCLUSION
While it is a rare family that does not have some form of “skeleton in the closet”, secrets create a vicious circle of hidden shame. Evasion is used to protect the myth. The only beneficiaries are often the lawyers hired to represent the litigants seeking redress once the family secrets are exposed.
The Supreme Court of Canada has ruled that doctors cannot unilaterally choose to end life support services for Hassan Rasouli, an Ontario man who has been comatose since 2010.
In a 5-2 decision, justices for Canada’s highest court ruled doctors must first obtain consent from the man’s family, or, failing that, apply for permission from Ontario’s Consent and Capacity Board, a quasi-judicial body that addresses matters of consent under Ontario’s Health Care Consent Act.
The court stressed, however, that its ruling applied only to cases in Ontario, and did not address the broader ethical question of who has the final say — doctors or family — in end-of-life care for incapacitated people. In effect, it said that Ontario has a board set up for determining such matters, and that Rasouli’s case should have been brought before it.
Writing for the majority on the bench, Chief Justice Beverley MacLachlin upheld the decision of two lower courts rejecting the doctors’ position. The doctors had argued that Ontario’s consent act did not apply in Rasouli’s case because “consent is not required for withdrawal of life support that does not provide any medical benefit to the patient.”
Rasouli, a retired engineer, fell into a coma after undergoing brain surgery for a benign tumour in 2010. His attending physicians at Sunnybrook hospital gave him a poor prognosis with little chance of meaningful recovery from the coma, although his diagnosis was recently upgraded from “vegetative” to “minimally conscious.”
Rasouli’s family maintains his condition is improving and sought an initial court injunction to stop the doctors from ending life support.
Rasouli’s wife, Parichehr Salasel, refused consent to end life support, citing the couple’s Shia Muslim religion and a belief that her brain-damaged husband’s movements indicate some level of minimal consciousness.
Salasel screamed in approval when the decision came through Friday, saying she was “happy for all humans,” not just for her husband, who she said shows clear signs of consciousness.
The Rasouli case, at a glance
The history:In October 2010, retired engineer Hassan Rasouli underwent minor brain surgery for a benign tumour at Sunnybrook Hospital in Toronto. Days later, a bacterial meningitis infection left him severely brain damaged and comatose. With a prognosis that foresaw next to no chance of meaningful recovery, attending physicians in the intensive care unit announced plans to withdraw life support measures. Rasouli’s wife, herself a medical doctor, and two adult children felt it was too early to make a life-ending judgment call. The family got a court injunction to block doctors from pulling the plug. The case has since wound its way up to the nation’s top court. The Question:The Rasouli case raised critical issues about end-of-life rights in Canada. Should physicians have final say on when to stop life-sustaining treatment when they feel it has become futile? Or should the families of incapacitated patients be able to defend their wishes for medical intervention and demand continued care? Clear guidelines were lacking. The Significance:Supporters on both sides of the issue warned of wide-reaching impacts from any decision. Those in favour of allowing doctors to make the call said physicians could be more reluctant to admit patients to the ICU — where the sickest patients undergo aggressive treatment in hopes they will recover and be discharged — if they knew they wouldn’t have the ability to withdraw life support. Life-sustaining treatment is intended as a stop-gap on the road to recovery, they said, and sustained efforts to keep a body alive are painful, expensive and often do little more than delay the inevitable. Those supporting patient and family choice said Canadians have a right to care that is respectful of, and consistent with, a patient’s wishes, worldview and religious beliefs. Some worried the cost of intensive care might motivate decisions on the part of doctors, while the value of an individual’s life should be determined by those closest to him or her. The Major Players:Sunnybrook Hospital doctors Brian Cuthbertson and Gordon Rubenfeld were appellants in the case. Rasouli’s wife, Parichehr Salasel, was the respondent on her husband’s behalf. Another significant player was Ontario’s Consent and Capacity Board, an intervener in the case. The board was one of the only provincial institutions set up to deal with questions of capacity to consent to medical treatment that fall under Ontario’s health acts, however it was created with a mandate of addressing mental health issues, not the ethical quandaries present in end-of-life care. Other interveners included: the Euthanasia Prevention Coalition, the Canadian Critical Care Society, Advocacy Centre for the Elderly, Evangelical Fellowship of Canada, and the HIV and AIDS Legal Clinic of Ontario.
The doctors argued withdrawing life-sustaining measures did not require consent from Rasouli’s wife, his surrogate decision-maker, because discontinuing care did not constitute “treatment” as set out under Ontario’s law. For the same reason, the doctors said, they did not require permission from the province’s Consent and Capacity Board to end care.
But MacLachlin wrote that the doctors’ interpretation of language in Ontario’s law was too narrow.
“First ‘treatment’ and ‘health-related purpose’ are not confined to procedures that are of medical benefit in the view of the patient’s medical caregivers,” she wrote.
The term “treatment” should be broadly interpreted to include “anything that is done” for a patient under a variety of circumstances — palliative, therapeutic, preventative, diagnostic or cosmetic, she said.
“In forestalling death, life support arguably falls within ‘therapeutic’ and ‘preventative’ purposes listed in the definition of ‘treatment,’ ” she wrote.
The court also rejected a third argument from the doctors, that requiring consent to withdraw life-sustaining practices in cases where there is no hope of recovery put them in an “untenable ethical situation.”
Dilemmas in end-of-life care are “inherent to medical practice,” MacLachlin said, and should not undermine provisions set out in the Act that clearly provide for a “meaningful role” of family and surrogate decision-makers in providing consent for treatment, including the discontinuation of life-prolonging measures and the beginning of palliative care.
“While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA,” MacLachlin wrote.
Further, the Act provides appropriate channels for dispute resolution through the Consent and Capacity Board, she said.
It is now up to the doctors to appeal to the board for a ruling on whether they can withdraw life support for Rasouli; however any decision rendered by the board can still be challenged in court.
A spokesman for Sunnybrook hospital told the Poston Friday that a decision has not been made yet on whether to dispute the decision by Rasouli’s family.
“There is a possibility of that. I should emphasize at this point, there has been no decision making around that …No decision has been taken about the consent and capacity board at this point,” chief medical executive, Dr. Andy Smith said.
“In terms of reflecting in general on how this has gone over the last three years, I do want to emphasize the extraordinarily positive relationship, the therapeutic relationship, between Mr. Rasouli’s family, the doctors, the rest of the care team. The care of Mr. Rasouli has been of the highest care and attention.”
While Dr. Smith “really appreciates the guidance the court has provided,” he said he is not worried that the decision will force Sunnybrook’s ICU to keep many patients on life support against the advice of their medical team.
“Sunnybrook has the largest ICU resource in the country. We have over 4,000 new, intensive care, really sick patients every year, that we take care of. When you look at our unit and all the other units across the land, these type of scenarios are not at all uncommon.”
“[But] It’s actually very common that the families work collaboratively with their doctors and their ICU teams to make the right decision in the case. That happens all the time.”
Justice MacLachlin was careful to state the court’s decision only addressed the issue of what Ontario’s act allows. Canada-wide, it did not address who “in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment.”
Rasouli’s case did not, she said, “require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed to be of little value.”
Five provinces and territories — Manitoba, B.C. Yukon, Quebec and Prince Edward Island – have similar legislation dealing with consent for medical intervention, but only Ontario has a board set up to deal with disputes. In the absence of such boards, dilemmas must be determined by the courts, Friday’s ruling concluded.
Justices Andromache Karakatsanis and Rosalie Abella formed the dissenting opinion on the court. In her written reasons, Karakatsanis held that Ontario’s Act should be interpreted the same way as common law, which she said does not “entitle a patient to insist upon continuation of treatment.
“Other courts have explicitly concluded that consent is not required for the withdrawal of treatment and that it is not appropriate for a court to interfere with medical doctors acting unilaterally professionally in the best interests of a patient.”
The plaintiffs Ms. Carter and Ms. Taylor, both of whom suffered from intractable and progressive diseases and are now deceased, joined with others in bringing this civil claim challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia, specifically ss. 14, 21(1)(b), 21(2), 22, 222(1)-222(5), and 241 of the Criminal Code. The main focus of their case, however, was s. 241(b), which prohibits assisting another person to commit suicide.
The plaintiffs succeeded in the court below not withstanding the previous decision of the Supreme Court of Canada in R. v. Rodriguez (1993), in which s. 241 was found not to infringe certain rights under the Canadian Charter of Rights and Freedoms.
The trial judge carried out a lengthy review of the history of the impugned provisions, expert opinion evidence on medical ethics and medical end-of-life practices, evidence from other jurisdictions, and the feasibility of safeguards for physician-assisted suicide. She concluded that safeguards could be put into place to protect against the risks associated with physician-assisted dying; that the evidence did not support an increased risk for elderly individuals; and that the risks inherent in permitting physician-assisted death could be “very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” The trial judge recognized that the existence of “a different set of legislative and social facts” might not on its own warrant a fresh enquiry under s. 1 of the Charter, but found that a change in the applicable legal principles had also occurred since Rodriguez was decided, such that she was no longer bound by it.
In particular, the trial judge was of the view that Rodriguez had not considered the right to “life” in s. 7, nor the principles of overbreadth or gross disproportionality, which in her view were not fully formed principles of fundamental justice when Rodriguez was decided. As well, she found that s. 15 was open to her to consider, since the majority of the Court in Rodriquez had only assumed a violation of s. 15 and had proceeded to the question of justification under s. 1 of the Charter.
With respect to s. 15, the trial judge concluded that the impugned provisions created a distinction on the basis of the analogous ground of physical disability by denying disabled individuals access to physician assistance which was necessary for them to commit suicide, while able-bodied individuals had no legal impediment to committing suicide. She found that the effect of this distinction was to create a disadvantage by perpetuating prejudice and stereotyping. The trial judge concluded that the violation of s. 15 could not be saved by s. 1 because it failed the minimal impairment test and at the proportionality stage of the analysis.
With respect to s. 7, the trial judge concluded that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would if physician-assisted dying was available to them. As well, she concluded that these deprivations were not in accordance with principles of fundamental justice in that the effects of s. 241 were overbroad and grossly disproportionate to the interests of the state sought to be achieved by s. 241.
In the result, the trial judge granted two declaratory orders, one under s. 15 and one under s. 7. Each declaration was to the effect that the impugned provisions of the Criminal Code infringed the Charter and are of no force and effect to the extent that they prohibit physician-assisted suicide “by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully informed, non-ambivalent competent adult patient” who is free from coercion and undue influence, not clinically depressed, and suffers from a “serious illness, disease or disability (including disability arriving from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.” The declarations were suspended for one year, but the plaintiff Ms. Taylor was granted a constitutional exemption to enable her to obtain physician-assisted death during the one-year period. Ms. Taylor died prior to the hearing of this appeal. The Attorney General of Canada (“AGC”) appealed and various groups – some supporting the trial judgment and some opposing it – joined as intervenors.
The majority (per Newbury and Saunders JJ.A.) found the trial judge was bound by stare decisis (or “binding precedent”) to apply Rodriguez. The test for the application of stare decisis begins with the question of what the earlier case decided. Dealing first with s. 7 of the Charter, the majority found that “life” as it appears in s. 7 had been considered in Rodriguez as a counterweight to liberty and security of the person. Since Rodriguez, courts have continued to regard the making of personal decisions regarding one’s body as falling under the “security of the person” or “liberty” rubric in s. 7, while “life” has been interpreted in its existential sense, not its qualitative sense. Although Chief Justice Finch suggested in his reasons that “life” includes the ability to enjoy various experiences and to make various decisions, the majority stated that those who have only limited ability to enjoy such blessings are no less “alive” and have no less a right to “life”, than able-bodied and fully competent persons. Charter protection cannot be extended to such experiences.
In any event, Rodriguez found that the prohibition on assisted-dying accorded with the principles of fundamental justice.
The majority reviewed the principles of fundamental justice as interpreted by the Supreme Court of Canada over the years. Although particular “tests” have varied, the essential exercise has been to evaluate broadly the rationality and normative balance struck by the law in question. The case law relating to arbitrariness, overbreadth and disproportionality illustrated that these were fluid concepts and that disproportionality was not a “new” principle of fundamental justice established by the Supreme Court of Canada in 2003 (in Malmo-Levine), as suggested by the trial judge. The use of different “lenses” employed under s. 7 from time to time does not mean that new principles have been established, making all previous decisions under s. 7 no longer binding.
The NG End of Life Support Case – Trevor Todd Co counsel
Article By Vancouver Sun Columnist Ian Mulgrew.
The family of a Vancouver man who has languished in a vegetative state for seven years has lost its bid to keep him alive for pioneering brain research.
After seven weeks’ deliberation, B.C. Supreme Court Justice Miriam Gropper refused to let Kenny Ng’s parents, siblings and relatives intervene in the hope he can benefit from recent neuroscience discoveries.
She supported a decision by his wife Lora to ask medical staff to remove her 56-year-old husband’s feeding tubes.
The court was told he will starve to death over about two weeks, a process that will be rendered painless via morphine.
In an emotionally charged hearing in December, the family argued Lora should be replaced as the person making decisions about Ng’s long-term care at the George Pearson Centre, since he may qualify for new treatments by celebrated brain researcher Adrian Owen.
“While this scientific development might hold some promising benefits in the future, at present, it is a speculative conclusion at best,” Justice Gropper said in a 26-page decision released Thursday.
She concluded that Lora’s decision was medically appropriate, supported by the doctors in charge of Ng’s care and made after agonizing thoughtfulness.
“It cannot be said that Lora is acting irrationally or without proper consideration,” Justice Gropper said.
“In respect of the criticism of her motives, that Lora is driven by self-interest, I also disagree …. It cannot be argued that Lora and the children will have emotional relief. They will be relieved from observing Kenny struggle, but they must still face the consequences of his death. The (family) simply disagree with Lora’s decision …. Lora is the proper person to make the decision and she has the authority to do so.”
Ng was described as a former math whiz who graduated from Sir Charles Tupper secondary to become an electrical engineer.
He started his own successful business, Phase Technology, involving the design, manufacture and sale of petroleum analyzers.
His medical predicament is reminiscent of a recent Alberta case involving a young girl the courts ordered to be taken off life support in spite of her parents’ wishes.
The judges in that province endorsed the view that life support should be terminated where medical specialists unanimously believe the patient is without awareness or hope of recovery and invasive treatment provided no potential benefit.
Justice Gropper said the fulcrum in this case was whether Lora had acted in Kenny’s best interests and met her duties and obligations under the Patients Property Act, which empowers her to make decisions about his care.
“I find that Lora’s decision to remove Kenny’s feeding and fluid tubes … has already been found to be a medically appropriate decision,” the justice said.
“There is no medical opinion in the evidence that points to a contrary conclusion.”
Lora’s lawyers argued that the legal action was a result of the family’s inability to say goodbye to a much-loved member and their abiding desire for a miracle.
Ng suffered traumatic brain injuries during a Sept. 9, 2005 car crash in Washington state that killed his eldest son, injured his two other children and left his wife badly hurt. Since then, he has been minimally conscious.
The court was told Lora, who had been married to him for 12 years at the time, initially believed he would recover.
Over time, however, she has come to agree with doctors who have said from the beginning that he would not improve. She decided this summer to have the tubes removed.
The family insisted that letting Ng die would be wrong given the startling work in neuro-imaging by Dr. Owen, which proves some patients suffering from locked-in syndrome, or who have lain in vegetative states for years, may be more conscious than we realize.
But Justice Gropper said the idea that that breakthrough holds out hope for Ng was more wishful thinking than realistic.
“The petitioners put great emphasis on Dr. Owen’s research and report,” she wrote. “They maintain his studies are a ray of hope for Kenny. With respect, Dr. Owen’s findings do not contradict the opinions of (Kenny’s doctors) … While this scientific development might hold some promising benefits in the future, at present, it is a speculative conclusion at best.”
Trevor Todd, one of the lawyers for the family, said an appeal with an accompanying application for a stay of the judge’s orders, is under consideration.
Ending Life Support is a very topical and controversial topic in recent years and on a continual basis.
The 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.
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An Alberta Curt ordered that life support be withdrawn of an irreversibly critically ill infant.
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.
Legal Issues:
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, [1995] 1 SCR 315, at para 88, 122 DLR (4th) 1.
[32] 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, [1986] 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).
[33] 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).
[34] 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).
[35] 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, [1982] 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).
[45] 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.
[46] 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, [1993] 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)
Conclusion
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.”
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