When it comes to dying, modern medicine is both friend and foe.
For some families, keeping their loved one alive through medical technology is nothing short of a miracle.
But for many doctors, such interventions can unnecessarily prolong dying and suffering. According to Prof. Arthur Schafer, director of the Centre for Professional Applied Ethics at the University of Manitoba, keeping a dying patient alive indefinitely, can violate a doctor’s ethical duty to minimize harm, both to the patient under their care, and to other patients by potentially depriving them of scarce resources they need.
He explained that "If physicians knew that once they initiated life-support it could never be discontinued, they’d be much more reluctant to initiate and it would be a bad thing for everyone; it would be bad medicine as well as bad ethics."
But figuring out who gets to decide when families and doctors disagree about when to pull the plug is not so straightforward in Canada.
The 1992 Quebec Court of Appeal case of Nancy B. established that doctors could not be accused of homicide if they discontinued life-support. But the final word on who makes the final decision is yet to be decided by the courts.
- 1989 — Nancy B. (pseudonym) is diagnosed with Guillain Barre Syndrome, a rare neurological disorder. She decides to forgo treatment and is eventually kept alive by a respirator.
- Nancy B. requests that life-support be discontinued.
- January 6, 1992 — Justice Jacques Dufour of the Quebec Superior Court rules in favour of Nancy B.’s right to decide whether to discontinue life-support.
- Justice Dufour ruled that Nancy B.’s death would be the result of her underlying disease and not the result of self-inflicted injury.
- According to Justice Dufour, no doctor should be held liable and accused of careless conduct and criminal negligence for respecting a patient’s right to discontinue life-support.
- "It would be nature taking its course," said Justice Dufour, and not an act of euthanasia.
Compiled by Brian Moskowitz
As it currently stands, each province has its own rules when it comes to resolving end-of-life disputes between doctors and families. And so does each province’s College of Physicians and Surgeons.
For example, the Ontario Health Care Consent Act states that a family member can make treatment decisions based on the patient’s beliefs and values if he or she is unable to do so themselves. At the same time, the guidelines of Ontario's College of Physicians and Surgeons allow doctors to discontinue treatment if they consider it to be futile.
"To use the language of futility will be a red flag to some people who get very animated and very skeptical and suspicious of the use of futility reasoning," says Bernard Dickens, Professor Emeritus at the medical faculty and the Joint Centre for Bioethics at the University of Toronto. "But the fact remains that there are objective criteria; there are reliable prognoses."
But what if doctors are wrong?
Not everyone feels doctors can be trusted to diagnose correctly, all the time. The case of Zongwu Jin, a Calgary-man who sustained a head injury, fell into a coma and recovered after doctors issued a do-not -resuscitate order, demonstrates the fallibility of medical decisions made in end-of-life situations, says Winnipeg lawyer, Neil Kravetsky.
Kravetsky represented the family of Samuel Golubchuk, an Orthodox Jew whose family refused to consent to doctors’ requests to discontinue life-support, saying ending treatment went against Golubchuk’s religious beliefs and was tantamount to murder. Golubchuk died less than three months before his case went to trial.
It rarely ever happens that a person is declared to be at the end-of-life and does a full recovery, but even Schafer admits that "doctors do get it wrong sometimes" such as when a patient’s heart stops in a case of hypothermia, and doctors may think the person is dead although they can be resuscitated.
Both Schafer and Dickens say the best insurance is getting a second medical opinion — an option many families choose after doctors determine the patient’s brain stem is maintaining ordinary mechanical processes such as breathing, but the upper brain that identifies intelligence and cognition isn’t functioning anymore.
In the Golubchuk case, Kravetsky argued that removing someone from life-support goes against one of the fundamental guarantees of the Charter of Rights and Freedoms: the right to life, liberty and security of person.
The rights of the patient under the charter are not however, absolute, says Dickens. The charter, he explains, does not apply to the doctor-patient relationship although the hospital, as an agent of the state, is bound by it.
Having a single rule across the country with clear directives for doctors that give them the final say may resolve the tug-of-war over when to pull the plug, but don’t look to politicians to find closure, says health-care lawyer Mark Handelman, currently representing Desmond Watson and Baby Joseph Maraachli’s former legal counsel.
"It is possible that eventually a case goes to the Supreme Court of Canada or somebody says ‘Wait a minute, there has to be a time at which values and beliefs are simply trumped by objective medical evidence."
With an aging population, the decision of who gets to pull the plug may be one of the most important and divisive issues we face as Canadians.
"This battle will put the abortion debate to shame," said Handelman. "It will make it look like a garden party."