By Alex Schadenberg
The InterimIn the February Interim, it was reported that the Euthanasia Prevention Coalition’s (EPC) legal counsel, Hugh Scher, obtained intervenor status in the case of an 81-year-old woman, Mrs. Holland, who was to be denied life-sustaining medical care against her previously expressed wishes.
The trial was heard by Justice Cullity, Jan. 20-23, in Toronto.The trial was originally scheduled for two days, but due to the gravity of the issues and the potential for legal precedents, the justice agreed to extend the case by a day and a half to ensure that all arguments were properly heard.
The hearing involved the lawyer for Holland’s daughter Joyce Chan; EPC legal counsel, Hugh Scher; two lawyers representing the doctor and two lawyers representing the attorney-general of Ontario. The case was based on a consent and capacity board decision of Oct. 6, 2003.
When considering the legal teams representing the doctor and the attorney-general, one can understand why the EPC referred to this case as one of “David versus Goliath.”
After surviving a second bout of pneumonia in September, the medical team decided that Mrs. Holland should receive no further life-sustaining medical treatment. This meant that she would be denied ventilator support for breathing, suctioning of the mucus in her lungs, access to ICU, and refused medication for her blood pressure. Due to her weakened condition, withholding ventilator support, lung suctioning and blood pressure medication would have resulted in her death.
In 1998, Holland named her daughters as her powers of attorney for personal care (PAPC). The daughters refused to consent to withholding life-sustaining medical treatment, saying their mother had clearly stated that she wanted all medical treatment until her natural death.
In 1996, Holland’s husband died of Alzheimer’s disease. She had been very upset with the level of care that her husband received. When she signed the PAPC, she said that she wanted no limits on her daughters’ ability to make decisions for her.
Not satisfied that the daughters did not consent to withholding life-sustaining medical treatment, the doctor in charge asked the consent and capacity board to decide whether the daughters represented the best interests of their mother by demanding life-sustaining medical treatment. The board decision on Oct. 6 supported the decision of the medical team and ordered the daughters to consent to withholding all further medical treatment.
The daughters appealed the decision for the following reasons:
- The mother had clearly told them that she wanted to receive all medical treatment.
- The withholding of life-sustaining medical treatment would result in her death.
- Their mother had expressed that as a Catholic, she believed in the sanctity of human life.
- They believed that their role was to respect their mother’s wishes.
The EPC intervened in the case for the following reasons:
- Healthcare teams and boards should not be permitted to withhold or withdraw medical treatment from a patient against his or her previously expressed wishes, when it will result in that person’s death.
- The previously expressed wishes of a person to receive life-sustaining medical treatment should be respected.
- A presumption in favour of life should be recognized by the courts, in order to protect vulnerable people.
On Feb. 5, 2004 Justice Cullity released his judgement. He decided to put aside the board decision and preserve Holland’s life. His decision was based on errors in law and facts by the board.
The EPC had only one disappointment with the trial. During the lunch and recess breaks, it appeared that the lawyers for the doctor and the attorney-general were very social and sharing strategy. We thought that the attorney-general should have been representing their concerns and impartial to the facts of the case.
However, Justice Cullity decided that the board made an error in law when it decided that Holland’s previously expressed wishes were too general to apply to her current condition. Her previously expressed wishes were that she wanted all medical treatment, but the board held that the doctor is only obligated to provide medical treatment that is specifically requested.
The justice stated that the board’s decision created too high a burden of proof. He believed that her statement was not general, but generally specific, and therefore applied to her circumstances.
Holland had stated in her PAPC that she wanted no restrictions on her daughters’ decisions; therefore, she trusted her daughters. The judge thought that this represented a clear intent by Holland.
The justice also stated that even when a patient’s previously expressed wishes are general, that those wishes should still apply to specific circumstances. This is an important precedent, because it is impossible to state in a PAPC document every possible choice for medical treatment in every circumstance.
The justice decided that the board also made an error in law by deciding that Holland’s religious values were not applicable to her medical treatment because her understanding of the Catholic faith may not accurately reflect Catholic beliefs. The daughters stated that as a Catholic, their mother believed in the sanctity of human life. Due to her faith, she wanted to receive all medical treatment. She stated: “Where there’s life there’s hope.”
The board stated that because Catholic teaching did not obligate her to receive all medical treatment, her values didn’t apply to her circumstance.
The justice said that the board decision was an error in law, because according to the statute, it did not matter what the church taught, it only mattered what Holland believed. This statement is an important precedent that can protect many vulnerable people who believe in the sanctity of human life.
Justice Cullity found that the board confused terminology when it assumed that because the daughters had agreed to no CPR, that their mother had experienced cardiac arrest. They assumed that since she needed a ventilator, that she had a respiratory arrest. These were factual errors. Holland’s medical records showed that she had a healthy heart and had never stopped breathing.
The justice thought that these were significant errors, because they may have caused the board to believe that her health condition was significantly worse than it was. The justice stated that he could not assume by a standard of reasonableness that the board would have made the same decision if it had properly understood Holland’s medical condition.
Therefore, due to errors in law and facts, Justice Cullity decided that the board decision should be set aside. Due to errors in law and fact, he also decided that he should not decide the constitutional and procedural questions that were contested in the case.
The Justice stated that: “The Charter issues should, in my opinion, be left to be determined in subsequent cases in which the board properly interpreted the statute and applied its provision to the facts before it in accordance with Section 21.” In other words, the case was won on technical grounds but didn’t achieve Charter and procedural precedents.
The EPC is happy that Holland is now protected from death, and also recognizes that the greater battle has just begun.