Download Indexed as Nancy B. v. Hotel-Dieu de Quebec Nancy B. v. Hotel

1
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
2
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.
3
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?
4
...
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,
5
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
6
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
7
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.