Nancy B. v. Hotel‑Dieu de Quebec et al



Download 21.86 Kb.
Date16.03.2021
Size21.86 Kb.

Indexed as

Nancy B. v. Hotel‑Dieu de Quebec
Nancy B. v. Hotel‑Dieu de Quebec et al.
86 D.L.R. (4th) 385

31 A.C.W.S. (3d) 160

69 C.C.C. (3d) 450
Quebec Superior Court

Dufour J.

January 6, 1992

Action for an injunction to require the defendant hospital and

defendant physician to permit the plaintiff to refuse further

treatment.


Dufour J. (translation): The plaintiff, Nancy B., asks the court

for an order that the defendant hospital, the Hotel‑Dieu de

Quebec, the mise en cause Dr. Daniele Marceau and the Hotel‑Dieu

medical staff and officials not administer any treatment to her

without her consent and, at her request, that they cease the

treatment presently being given.


...
The plaintiff, Nancy B., is 25 years of age. She suffers from

ascending motor paralysis caused by the Guillain‑Barre syndrome

and she is literally tied to her hospital bed.
For almost two and a half years, that is from the onset of her

illness in June, 1989, Nancy B. has been intubated and on a

respirator. The evidence is to the effect that this respiratory

support treatment has become essential to her survival, as her

respiratory muscles have atrophied. This medical technique has

prolonged her life well beyond the time given her if she had been

left to her own natural forces.
...
Doctors Patry and Bouchard are of the view that she could

continue to live for some time if she remained on the respirator.

The three doctors are of the view that once respiratory

assistance ceases, Nancy B. would only survive a very short time.


Dr. Daniele Marceau informed her patient of her condition, and

the consequences of stopping the respiratory support treatment.

The patient continues to manifest the same determination. Dr.

Marceau does not believe that she will change her mind in this

regard.
This year, Dr. Ronald Ouellet, a psychiatrist, met the plaintiff

on four occasions: in February, September, October and on

November 27th, the very morning of her testimony. He testified

before the court that Nancy B. is in very good mental health; she

is able to make decisions and to understand their consequences.

Moreover, she has always stated that the decision to stop the

respiratory support treatment is irreversible.
Louise Picard, the social worker for Nancy B. since October,

1989, Andree Coulombe, the head of the intensive care unit, and

Ginette Labonte, Nancy B.'s present nurse, all gave evidence.
Louise Picard testified that she was unable to reconcile her to

her condition. Andree Coulombe told us that she suffers a lot.


All three informed us that Nancy B.'s desire to see the

respiratory support treatment end has never ceased.


The last witness to be heard on Thursday, November 27th, was

Nancy B.'s mother. She first began to describe the character of

her daughter before her illness: a religious, strong, very active

child, who loved life and liked to have fun. Then, she told us

that every day she went to Nancy's bedside. When Nancy told her

of her decision to stop the treatment, this appeared impossible

to her. With time, she has changed her mind as has the entire

family. "We understand her situation. She is dependant on

everyone, she has no privacy, it is no longer livable", she told

us. "We support Nancy whatever happens", added her mother

saying that she was speaking on behalf of the entire family.
It was admitted by counsel for all the parties that if Nancy's

father and two sisters were called, they would give the same

evidence.
At the request of Nancy B., the court attended at the hospital.

There, it clearly saw that the plaintiff's consent to stopping

the respiratory support treatment was real and enlightened.
As the facts are well established, there remains the question of

law to discuss...


The relevant articles of the Civil Code of Lower Canada are the

following:

18. Every human being possesses juridical personality.
Whether citizen or alien, he has the full enjoyment of civil

rights, except as otherwise expressly provided by law.


19. The human person is inviolable.
No one may cause harm to the person of another without his

consent or without being authorized by law to do so.


19.1 No person may be made to undergo care of any nature,

whether for examination, specimen taking, removal of tissue,

treatment or any other act, except with his consent.
Where the person concerned is unable to consent to or refuse

care, a person authorized by law or by mandate shall replace

him.
...
The courts have indicated in their judgments that the patient's

consent must be freely given and informed.


One will also note that in the past few years, the courts have

become much more demanding with respect to the qualities of the

patient's consent which must be freely given and informed, and

with respect to the physician's duty to inform. The cases of Hopp

v. Lepp (1980), 112 D.L.R. (3d) 67, [1980] 2 S.C.R. 192, 13

C.C.L.T. 66, and Reibl v. Hughes (1980), 114 D.L.R. (3d) 1,

[1980] 2 S.C.R. 880, 14 C.C.L.T. 1, set the tone in this regard.

The physician has the duty to inform the patient to such extent

that the latter can give informed consent to any care being

proposed.


Moreover, the Code of Ethics of Physicians, R.R.Q. 1981, c. M‑9,

r. 4, is clear in this regard. One also sees that the Code gives

precedence to the patient's freedom of choice in any decision

concerning himself over the duty of the physician to protect his

health and well‑being.
...
The terminology employed in art. 19.1 is extremely broad. It

speaks of "care of any nature, whether for examinations,

specimen taking, treatment or any other act". In the French

version, the word "act" is translated by the word

"intervention".
In addition, one will note that in art. 19.1, the legislature

made no distinction between beneficial and non‑beneficial care.


The logical corollary of this doctrine of informed consent is

that the patient generally has the right not to consent, that is

the right to refuse treatment and to ask that it cease where it

has already been begun.


Is the right expressed in art. 19.1 absolute?
...
Professor Jean‑Louis Beaudoin, now a justice of the Quebec Court

of Appeal, also considered this subject. In a seminar entitled

"Le droit de refuser d'etre traite" (The right to refuse to be

treated) and given under the auspices of the Canadian Institute

for the Administration of Justice, he advanced the following

[translation]:


For a competent person of the age of majority, the making of

his own decisions with respect to his own body is the legal

expression of the principle of personal autonomy and of the

right to self‑determination.


Further on:
The ability to consent is not however absolute, but rather

subject to two limitations. First, the corresponding rights of

others. Accordingly, an individual may not use his body in a

manner which may have the effect of putting in jeopardy the

life or health of others. Second, public order (policy). The

law sometimes imposes limits on the right to freely do what

one wishes with one's body. Accordingly, it does not allow a

person to dispose inter vivos of a part of his body which is

not capable of regeneration or, a vital organ. Subject to

these two limits however, one may consider that the right to

autonomy and self‑determination is absolute.
This seminar, which was published by Les Editions Yvon Blais Inc.

was also given before the adoption of art. 19.1.


I must now ask myself the following question: Is the technique of

placing a person on a respirator medical treatment?...


Regardless, I am of the view that the terminology employed in

art. 19.1 is sufficiently broad to encompass the act of placing a

person on a respirator by a third person.
In addition, putting a person on a respirator and constantly

keeping her on it without her consent surely constitutes

intrusion and interference which violates the person of Nancy B.
It therefore clearly follows from our civil law that Nancy B.,

whose consent in this regard was freely given and informed, is

entitled to require that the respiratory support treatment being

given her cease.


...
Before considering the relevant sections of the Criminal Code,

R.S.C. 1985, c. C‑46, it appears to me to be necessary to make

certain introductory remarks in order to put the issue in its

proper context.


What Nancy B. is seeking, relying on the principle of personal

autonomy and her right of self‑determination, is that the

respiratory support treatment being given her cease so that

nature may take its course; that she be freed from slavery to a

machine as her life depends upon it. In order to do this, as she

is unable to do it herself, she needs the help of a third person.

Then, it is the disease which will take its natural course.
I would quote an extract from an American decision which

expresses this idea quite well: Re Conroy, 486 A. 2d 1209 (J.J.,

1985), at p. 1224:
[7] In any event, declining life‑sustaining medical treatment

may not properly be viewed as an attempt to commit suicide.

Refusing medical intervention merely allows the disease to

take its natural course; if death were eventually to occur, it

would be the result, primarily, of the underlying disease, and

not the result of a self‑inflicted injury.


Keeping this in mind, let's now analyze the relevant sections of

the Criminal Code.


Duty of persons undertaking acts
217. Every one who undertakes to do an act is under a legal

duty to do it if an omission to do the act is or may be

dangerous to life.
In respect of s. 217, former s. 199 of the Criminal Code, I would

refer to the very accurate analysis of the Law Reform Commission

of Canada, Working Paper 28, at p. 17:
Section 199 of the Criminal Code, read in isolation, seems to

imply that a physician who has undertaken treatment is not

permitted to terminate it if this involves a risk to the life

of the patient. If this were the case, the law would require

the use of aggressive and useless therapy. It would also have

the effect, in many cases, of causing doctors to hesitate

seriously before undertaking treatment, for fear of not being

permitted to terminate it later, when it no longer appears to

be useful. If this were the actual implication of the rule,

then the rule would be absurd and would have disastrous

effects on medical practice.
...
Section 217 cannot be read independently of s. 216 which requires

that a physician act with reasonable knowledge, skill and care

when he undertakes to administer surgical or medical treatment to

another person or does any other lawful act that may endanger the

life of another person: s. 217 logically follows from s. 216.
One must also read s. 217 in conjunction with ss. 45 and 219 of

the Code in order to give it an even more logical meaning.


Surgical operations
45. Every one is protected from criminal responsibility for

performing a surgical operation on any person for the benefit

of that person if
(a) the operation is performed with reasonable care and skill;
(b) it is reasonable to perform the operation, having regard

to the state of health of the person at the time the operation

is performed and to all the circumstances of the case.
Criminal negligence
219(1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do;
shows wanton or reckless disregard for the lives or safety of

other persons.


Definition of "duty"
(2) For the purposes of this section, "duty" means a duty

imposed by law.


In s. 45, one notes that the physician is protected from criminal

responsibility if his act can be characterized as reasonable.


In s. 219, the notion of conduct which shows wanton or reckless

disregard is introduced.


Can the conduct of a physician who stops the respiratory support

treatment of his patient at the freely given and informed request

of the patient, and so that nature may take its course, be

characterized as unreasonable? Or does such conduct denote wanton

and reckless disregard? I do not believe so.
Sections 222 to 241 of the Criminal Code deal with different

forms of homicide. What I have just reviewed is sufficient to

conclude that the person who will have to stop Nancy B.'s

respiratory support treatment in order to allow nature to take

its course, will not in any manner commit the crimes prohibited

by these sections. The same goes for s. 241, aiding suicide.


I would however add that homicide and suicide are not natural

deaths, whereas in the present case, if the plaintiff's death

takes place after the respiratory support treatment is stopped at

her request, it would be the result of nature taking its course.


...
For these Reasons,
The Court:
Once the delay to appeal from the present judgment has expired,
Permits Dr. Daniele Marceau, the plaintiff's attending physician,

to stop the respiratory support treatment being given to the

latter, when she so desires; her consent must however be checked

once again before any act in this regard is done;


Permits Dr. Daniele Marceau to request from the defendant

hospital, the Hotel‑Dieu de Quebec, the necessary assistance in

circumstances such as these, so that everything can take place in

a manner respecting the dignity of the plaintiff;


The Whole without Costs. Judgment accordingly.


Share with your friends:




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page