Editor: On January 6, 1992 Mr. Justice Jaques Dufour handed down his ruling in favour of Nancy B’s request to discontinue her respirator. The following is a summary of his conclusions.
Judge Jaques Dufour
“It would be nature taking its course.”
The plaintiff, Nancy B., is twenty-five years old. She suffers from a progressive motor paralysis caused by Guillain-Barré syndrome. She is literally nailed to a hospital bed.
For almost two-and-a-half years since the onset of the disorder in June 1989, Nancy B. has been incubated and living on a respirator. She now depends on this respiratory support treatment to live, since her respiratory muscles have atrophied. This medical treatment has prolonged the life of the patient far beyond the amount of time she would have lived, had the disorder been allowed to take its natural course.
In December 1990, Doctor Georges Patry, chief neurologist at Hotel Dieu Hospital, diagnosed a nervous disorder resulting in a complete loss of motor nerves.
In January 1991, the plaintiff was informed that there was no cure for her condition. Faced with this situation, she began contemplating the idea of requesting that the respiratory support treatment be stopped. As the months passed, the idea became more and more fixed in her mind. During this period, she even undertook two hunger strikes, which she eventually abandoned.
The intellectual faculties of the plaintiff are intact. Moreover, it is not the disorder caused by Guillian-Barré syndrome that has resulted in her suffering but the fact that she has long been confined to a bed and the fact that she is barely capable of any movement.
I heard testimonies from Doctor Georges Patry, Doctor Jean-Pierre Bouchard, an expert neurologist appointed by the Court, and Doctor Daniele Marceau, the physician treating the plaintiff. All had reached the conclusion that her illness is incurable.
Doctors Patry and Bouchard believe that she could live much longer if she remains on the respirator. The three doctors believe that if the respiratory support is stopped, Nancy B. would only survive a short period of time.
Doctor Daniele Marceau informed her patient of her condition and the consequences of stopping respiratory support treatment. The patient continued to show the same determination. Doctor Marceau does not believe that she will change her mind.
This year a psychiatrist by the name of Doctor Ronald Ouellet met with the plaintiff on four occasions, in February, September, October and on November 27, the day she filed the suit. He told the Court that Nancy B. was in very good mental health. She was capable of making decisions and understanding the consequences. She always insisted that she would not alter her decision about stopping respiratory support.
Louise Picard, a social worker who has looked after Nancy B. since October 1989, Andrée Coulombe, head of the intensive care unit, and Ginette Labonte, Nancy B.’s nurse all appeared as witnesses during the proceedings.
Louise Picard stated that she could not convince Nancy B. to accept her condition. Andrée Coulombe told us she is suffering greatly.
All three of these witnesses stated that Nancy B. never stopped wanting to interrupt the respiratory support.
The last witness was heard on November 27. This was Nancy B.’s mother.
First she described the personality of her daughter before the onset of the disease. She was religious, a strong child, very active, loved life and having fun. She then went on to say that she goes to Nancy’s bedside every day.
When Nancy B. informed her of her decision to request that the treatment be stopped, she did not consider it a possibility. In time, she changed her mind and the whole family did as well. “We understand the situation. She depends on everyone. She no longer has any privacy. It’s not livable,” she told us.
“We support Nancy no matter what happens,” added her mother, saying she was speaking on behalf of the whole family.
Relevant sections of the Civil Code of Lower Canada are the following:
Art. 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.
The logical corollary of informed consent is that the patient generally has the right not to consent, in other words, can refuse treatment or request that treatment underway be stopped.
…placing a person on a respirator and keeping the person on this form of treatment without her consent is indeed an intrusion and constraint prejudicing Nancy B.’s person.
It therefore follows clearly from our civil laws that Nancy, who gave her informed consent, has the right to request that the respiratory support treatment be stopped.
Can we consider as unreasonable behaviour, that of a physician who interrupts the respiratory support of a patient, at the patient’s request, in order to let nature take its course? Can we say that such behaviour is wanton or reckless? I do not think so.
Sections 222 to 241 of the Criminal Code deal with different types of homicide. Based on my analysis of the relevant sections of the Code, I conclude that the person who stops Nancy B. respiratory support, and lets nature take its course is in no way committing a crime according to these sections, or section 241 on aiding suicide.
I would add, however, that homicide and suicide are not natural deaths whereas in the present case, if the plaintiff died after the respiratory support was stopped, as she wants it to be, it would be nature taking its course.
THE COURT, ONCE THE APPEAL PERIOD FOR THIS JUDGMENT HAS EXPIRED, PERMITS DOCTOR DANIEL MARCEAU, THE PHYSICIAN TREATING THE PATIENT, TO STOP RESPIRATORY SUPPORT, WHEN THE PATIENT SO DESIRES. THE PATIENT’S CONSENT MUST ONCE AGAIN BE SOUGHT BEFORE ANY ACTION IS TAKEN; PERMITS DOCTOR DANIELE MARCEAU TO ASK THE DEFENDANT HOTEL-DIEU HOSPITAL FOR ANY NECESSARY ASSISTANCE IN SUCH CIRCUNSTANCES SO THAT EVERYTHING TAKES PLACE WHILE RESPECTING THE DIGNITY OF THE PLAINTIFF…
Toronto Right to Life
“Vulnerable citizens are being killed by medical care givers.”
Toronto – The Right to Life Association of Toronto & Area has asked the Attorney General and the Minister of Health to commence a wide-spread investigation into possible cases of murder at hospitals and centres for the handicapped and the elderly in Ontario.
In a press release issued on November 28, 1991, the pro-life group notes that recent incidents show a frightening pattern: two deaths are being investigated at the Wellesley Hospital, Toronto; 15 children were given excessive doses of morphine prior to their death at the Christopher Robin Home for /children in Ajax, Ontario: the provincial auditor’s 1990 annual report found neglect contributed to the deaths of many residents at centres for the elderly and the handicapped in the province.
“Within two years, Canada has moved from a state where incidents of suicide and assisted suicide have occurred to a state where vulnerable citizens are being killed by medical care givers.
“This erosion of the right to life in Canada has placed not only the preborn child, but now, the elderly, the sick and the handicapped in a position of vulnerability,” says the group.
“Treatments are discontinued without going to courts.”
Cecelia Von Dehn, R.N., President of Concerned Nurses for Patients’ Rights, Vancouver, B.C., issued the following statement on the Nancy B. case:
“Many are rightly concerned about this decision,” she states, “And its precedent established in a court of law. It is misleading to assume that this is only a case of the right to refuse treatment. We all have that already and doctors are not prosecuted if patients do not take their advice. Treatments are discontinued without going to courts.
“We have heard Nancy’s doctor equate her case with some who refuse cancer treatment and then ‘let the disease take its natural course to death.’ Nancy’s disease should have taken its “natural course” earlier, if the ventilator had not been used to bypass the paralysis of her breathing mechanism. It was a natural life-saving decision to use this machine at the point needed. Once taken off, she will die of asphyxiation. Drugs will be used. On top of that it will be a deliberate act of another party who will be involved in the death, regardless of how one want to avoid the big “E” word, Euthanasia.
“By refusing treatment for cancer, for example, one does not die on the spot and by the hand of, most likely, someone in the medical or nursing profession. We are by-passing their role in the Nancy decision.
“It will be easier to rationalize now that the courts have impressed its no-guide-lines precedent of “semi-protection” on the medical profession, to impose death decisions on non-verbal patients or children. One regrets that Nancy felt some need, or lack of, to initiate this approach. One can see the concern of the disabled and wonder why she turns away from their input and inspiration.”
A foot in the door
“David Dooley’s stand is the wrong stand”
This reader objects to the position David Dooley took in the January 1992 issue of The Interim (see “Should Nancy die?”)
To the Editor
In his article, Mr. Dooley fails to make clear that Nancy is not a terminally ill patient. Her particular case of Guillain-Barré syndrome has left her unable to move from the neck down. She requires a respirator and the condition cannot be reversed with current medical knowledge. But as neurologist Jean-Pierre Richard explained to the court: “The disease did not affect the heart, so that a person such as Nancy could live years in her current condition.”
Neurologist Dr. Georges Patry explained to the court that “the brain and spinal cord remain intact.” (Globe and Mail, Nov. 28/91)
Nancy “is only 24 years old, does not suffer from a terminal disease and could remain alive with proper treatment for many more years.” (Rhéal Séguin, Globe, Nov. 29/91)
“She can eat…” (Globe, November 29)
“[Her doctor, Daniele] Marceau said Nancy was able to speak clearly in short bursts, but lost her strength when she tried to express herself in longer sentences…’ She’s young, she’s conscious, she’s lucid…and she could live for many years’, Marceau told reporters.” (Toronto Star, November 29)
Eating, watching television and talking with hospital staff and family members are Nancy’s only real activities and she articulates her boredom. “The only thing I have is television and then to look at the walls.” (Star, November 29)
But in spite of the frustrations and boredom of her condition, “Psychiatrist Ronald Ouellette said that four examinations, conducted in February, September, October (and November 27/91) confirmed that Nancy was in good mental health. ‘She experiences normal healthy emotion, considering the circumstances’.” (Globe, November 28).
Clearly, Nancy is depressed.
“Dr. Marceau testified that when Nancy was told in January that she would remain paralyzed and bedridden for the rest of her life, she tried to take her life by going on a hunger strike on two occasions in April. She suffered serious side-effects and was persuaded by Dr. Marceau to abandon her attempts to end her life.” (Globe, November 28). The November 29, Globe and Mail account does not mention Dr. Marceau’s counseling, but reports instead that “painful complications caused her to end both attempts. She has since resorted to the courts.”
David Dooley writes that “when she asks to be disconnected from the respirator, she is acting in a completely moral way, not committing suicide…”
Nancy was trying to commit suicide by her hunger strike. Why is asking to have her respirator unplugged not the same: a request to have someone help her commit suicide?
Mr. Dooley puts forward this proposition: “We are expected to use ordinary means to preserve our lives, but we have no obligation to use extraordinary means. To distinguish between the two is not always easy, but Nancy B’s situation is clearcut: she is kept alive only by extraordinary means, and the hospital has no compelling reason to continue them.”
I firmly believe many pro-life people would have a great deal of difficulty with David Dooley’s proposition.
A respirator might constitute “extraordinary means” for keeping alive a 90-year-old suffering terminal cancer, but what about a 24-year-old woman who can think and talk and eat and see and is described as “lucid” and “could remain alive with proper treatment for many years?” An I.V. might have been viewed as futuristic and “extraordinary means” a century ago. Is the respirator “extraordinary” now, but maybe “ordinary” in another decade or two? Who is to say, in Nancy’s case that the respirator represents “extraordinary means”?
This is euthanasia
If Nancy had one good are, she could switch off her respirator in the middle of the night and have her suicide wish. She is unable to do that and wants help. Neither medical staff nor her family will help – unless authorized – because the Criminal Code prohibits any person from consenting to having death inflicted upon him or her.
David Dooley says of the issue in Nancy’s case: “Nor is it concerned with euthanasia, mercy killing, strictly speaking.” The Globe and Mail editorial of November 29th quotes Professor Ted Keyserlink of the McGill Centre for Medical Ethics and Law: “This is certainly not euthanasia at all.”
Both David Dooley and the Globe and Mail are fundamentally wrong! This is euthanasia. If the respirator is unplugged, Nancy will die, because her medical care is being withheld.
But the pro-death opposition has picked the case of Nancy and now – with full cooperation from their media allies – they’re trying to publicize misrepresentations and clever distortions in order to advance euthanasia in the courts (and in the court of public opinion).
No matter that we pro-lifers would not have chosen the Nancy B. case to clearly illustrate our struggle against euthanasia, nevertheless the pro-death forces chose it.
We are compelled now to take a stand. David Dooley’s stand is the wrong stand – a dangerous stand – to take.