Now that baby Joseph Maraachli has gone to the Cardinal Glennon Children’s Hospital in St. Louis, it is important to once again consider why this battle occurred and why the Ontario government needs to change the Health Care Consent Act.
The baby Joseph case was not about euthanasia. The Euthanasia Prevention Coalition became involved in the baby Joseph case because the way that the decision was made will affect everyone. Many people have suggested that this was a case of euthanasia, but in fact it was not.
Some people have suggested that to withdraw the ventilator from baby Joseph would constitute an act of euthanasia. Euthanasia is an action or omission of an act that directly and intentionally causes the death of another person with the intention of relieving suffering. Euthanasia is a form of homicide. If the ventilator had been withdrawn from baby Joseph, he was likely to die, but he might have survived. If he died, his death would have been caused by his medical condition and therefore it is not euthanasia.
The baby Joseph case was about who has the right to decide and what is in the best interest of baby Joseph. The hospital wanted to withdraw the ventilator from Joseph, which likely would have resulted in his death in a short period of time. The family asked that a tracheotomy be done to allow Joseph to breathe on his own, so they could bring him home.
A significant problem in Ontario is that the legal system is loaded against families. When a family and the doctor/hospital disagree about the treatment plan for a person, these cases are sent to the Consent and Capacity board for a supposed third-party decision. This is where the inequality begins.
The doctor/hospital have vast financial resources to hire a top lawyer who has significant experience in this area of law. The family usually has limited resources and will often hire a legal aid lawyer or a lawyer who lacks experience in this area of law.
When the Consent and Capacity board sides with the doctor/hospital, it is incredibly expensive for the family to bring a case to the Superior Court, so many families do not appeal the decision.
The law’s inequality has resulted in a growing body of precedent-setting cases that constantly increase the power of the doctor/hospital to make medical decisions against the wishes of the family. This must change.
The Ontario government must change the Health Care Consent Act so the system should also pay the legal costs for the family.
Individuals should also protect themselves by ordering and completing the EPC Life-Protecting Power of Attorney for Personal Care.
Alex Schadenberg is executive director of the Euthanasia Prevention Coalition.
