The Duty to Preserve Confidentiality

Two problems attend the question of civil liability for the unprivileged disclosure of medical secrets:

First, there is the very basic question of what remedies the law affords to the disgruntled patient.

Second, the obligation of confidentiality has always been seen as a qualified one, whether as a matter of ethics or of law.

Action for breach of confidence: Canadian law for a phenomenon which has generated much litigation in recent times, mostly in the realm of commercial information, but not exclusively so. Whenever a person receives information in confidence, or which he ought to realize is imparted confidentially, the courts may invoke this principle to restrain the improper divulging of such confidential information.

Damien vs. O’Mulvenny (1981): defendant doctor diagnosed a venereal infection in one of his patients, the plaintiff, and allegedly -- for the matter was never to be formally determined -- disclosed (made public) this information to the plaintiff’s employer, who dismissed him.

The total absence of any developed common law remedy for violations of a person’s privacy has prompted the legislature to pass a Privacy Act. There are 4 provinces that all make it a tort (that is, a wrong actionable at the suit of the individual affected), giving rise to a remedy in damages, to violate the privacy of another person; through BC, Sask, and NFL. insist that the violation be "willful" if it is to be actionable. The courts ultimately determine what amount to an invasion of privacy.

Other provinces without the Privacy Act try to sue using the Breach of Contract when it can be argued strenuously that in every contract for professional services entered into between doctor and patient there is an implied or tacit undertaking by the physician faithfully to preserve the patient’s confidences.

CASE: A.B. vs. C.D.

An elder of the Presbyterian Church was naturally aghast when only six months after their marriage, his wife gave birth to a child. He sought the opinion of the defendant, a doctor, as to whether the infant had been born prematurely, or after a full-term gestation. The doctor, inclining to the latter view, disobligingly informed not only the abashed father but also the authorities of the Church, who then expelled the father from the congregation. His action for breach of contract against this gratuitously indiscreet physician was unanimously upheld.

CASE: Furniss vs. Fitchett

Mrs. Furniss was examined by her family physician during a time of extreme marital strain and without saying so to her, he diagnosed her as suffering from paranoia and in need of psychiatric help. He drafted a memo to this effect and handed it to her husband to be used by his solicitor in impending matrimonial proceedings! She sustained severe and debilitating nervous shock. Two important points here is Had Mrs. Furniss sustained an emotional upset falling short of "nervous shock" she could have succeeded in the tort of negligence, for that tort takes no account of merely "emotional" sufferings: though she might still have prevailed in contract, a context in which such harm is at least sometimes dressed. Best of all, the Privacy Act claim, in those provinces which have such a statute. The other point is paid considerable attention to the Ethical Code of the medical profession but stressed that while breaches of that code might be persuasive evidence of actionable negligence, they would never be conclusive in that regard.

Breach of fiduciary duty : fiduciary means holding or helding in trust. Obligations of good faith and scrupulous honesty and openness; and obligations too of undivided loyalty and commitment, unqualified by any element of clandestine self-interest or any competing loyalty to any other person or entity.

These torts of "defamation" award damages to persons whose reputation and standing in the community have been harmed by untrue statements, whether written or oral. These tort consists in the doing of any willful act calculated to cause physical harm or psychological trauma to another person, which in fact does cause such harm.

CASE: Norberg vs. Wynrib

elderly physician secured sexual favors from the plaintiff, a young woman, in exchange for inappropriate prescriptions of fiorinal, to which she was addicted.

Assault and Battery & Breach of the defendant doctor’s fiduciary duty.

Breach of statutory duty:

statute: a law passed by the legislative party.

It will sometimes happen that a statute, or some regulations made under its auspices, will direct the gathering or recording of info. by a given body or institution, and expressly or impliedly forbid the divulgence of any information therein contained, except under carefully specified conditions. Such a statute may, exceptionally, provide expressly for a civil action for damages to lie at the suit of anyone who flouts that prohibition. The Supreme Court notes the infringement of a statute is just one of the many items of evidence which in any given case may stiffen the Court’s resolve to impose liability in the ordinary tort of negligence.

MEDICAL CONFIDENTIALITY

any health care provider or other person under an obligation to keep health information about the patient confidential, who unjustifiably discloses his or her health information to a third person and any person who induced anyone under an obligation to keep health information about a patient confidential unjustifiable to disclose his or her health information.

EXCEPTIONS TO THE DUTY OF NON-DISCLOSURE:

Disclosure within a court of law:

Duchess of Kingston’s Case:

The Duchess was on trial for bigamy, the allegation being that she had "married" the Duke of Kingston while still married to a certain Mr. Hervey. Mr. Caesar Hawkins, physician to the accused lady, was asked whether as her surgeon he knew whether any marriage had been entered into between Mr. Hervey and his patient. Mr. Hawkins replied with dignity "I do not know how far any thing that has come before me in a confidential trust in my profession should be disclosed, consistent with my professional honor.

If a surgeon was voluntarily to reveal secrets, to be sure he would be guilty of a breach of honor, and a great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do.

Disclosure Outside a Court of Law

1) Statutory Duties of Disclosure : Compelled to disclose if reasons of public safety or at least public policy, authoritatively qualify the physician’s duty of silence and direct him to reveal specified types of information to some public official or registry.

others include suspected cases of child abuse

2) Where Countervailing Public Interest Dictates Disclosure

patient is about to commit a serious criminal offence, a person is confronted with a genuine ethical dilemma.

Special situation: Criminal Code of Canada -- a duty to assist the police. It deals among other things such as taking the blood samples in cases where an accused person is suspected of operating a motor-vehicle, aircraft or vessel while under the influence of alcohol. A police officer may require such a suspect to submit to a testing of his breath or his blood In the event that the suspect does not consent, however, the physician should not proceed unless and until a warrant has been obtained from a justice to proceed with such testing. ... must now or they take your car away for so many days...personal comment...

Section 257: No qualified medical practitioner or qualified technician is guilty of an offence only be reason of his refusal to take a sample of blood from a person for the purposes of sec. 254 and 256...

No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person pursuant to a demand under subsection 254...

Suppose, for example, that a patient is diagnosed as having syphilis, or AIDS. The physician will be under a statutory obligation to report his findings to the appropriate authority. If it will be passed on to some identifiable third person.

TARASOFF vs. REGENTS

He informed his therapist that he was going to kill a young woman. The therapist initially took measure to secure the committal of this alarming patient to a mental hospital, but his efforts were frustrated by the actions of other psychiatrists, who had taken the view that the patient was not in need of confinement. No one attempted to warn the girl or her parents. The patient went to her home and killed her.

We conclude that a doctor or a psychotherapist treating a mentally ill patient, just as a doctor treating physical illness, bears a duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from his patient’s condition or treatment.

3) Where the Patient Expressly or Impliedly Consents

Sometimes a patient will request his physician to disclose confidential information to someone else.

CONFIDENTIALITY AND PATIENT RECCORDS

CASE: McInerney vs. MacDonald.

It ultimately yielded a unanimous judgement in the Supreme Court of Canada which in clear and emphatic terms both asserted and defined the patient’s right of access to his or her medical record.

the Court stressed the fiduciary nature of the doctor-patient relationship involving mutual obligations of openness and candor (honesty and frankness).

On sound medical grounds, the physician believes it is not in the patient’s best interests to inspect his or her medical records, or believes the production might put some other party at risk, they may be withheld.

• wrongful birth action: negligence action brought by parents of a disabled child who allege that if physician had given appropriate info, child wouldn’t have been born
• an outgrowth of the doctrine of informed consent; physician must disclose sufficient info to allow patient to make informed reproductive choice
• at pre-conception stage, genetic counseling and testing allow physicians to advice patients regarding risks of bearing child with various genetic disorders

• at post conception, post diagnostic techniques (amniocentesis, ultrasound) detect genetic and congenital anomalies

• wrongful life action: negligence action; label for a cause-of-action brought in name of handicapped child whose grievance is own existence
• if person’s death caused by negligent conduct, next of kin may file civil suit claiming damages for tort of wrongful death
• actions are often combined in the same law suit: parents suing for wrongful birth, handicapped child for wrongful life once cases presented, defense responds by arguing that even if allegations are all true (which defense doesn’t admit), not enough to establish viable claim--defendant contests concept of wrongful birth action

• Leading Cases:

Park vs Chessin - wrongful birth action

- Court ruled in plaintiffs’ favour

- defendant failed to advise couple of the risk of future offspring

Schroeder vs Perket and Venin - wrongful birth

- plaintiff won case

Harbeson vs United States

-Court ruled parents had a valid claim for wrongful birth

Berman vs Allan and Attardi

-gave birth to Down syndrome child

-claimed would have aborted fetus

-ruled liability for wrongful birth was appropriate remedy against defendants

Arndt vs Smith (p 284)

- plaintiff contracted chicken pox and asked physician about risks to fetus

- physician aware of serious risks to fetus and didn’t disclose

• elements of tort of wrongful birth: (p 277)

1) physician breached the legal duty of care owed to patient

-provide accurate info

-volunteer material info for decision making even if patient has omitted to inquire

-duty to obtain relevant data from other persons

2) defendant was the cause of their consequent harm

3) harm warrants compensation by award of damages

A) wrongful birth cases

-lack of consensus on awardable damages (p280)

B) wrongful life cases

-damages award designed to restore plaintiff to pre-negligence state

Becker vs Schwartz

• the tort of wrongful pregnancy/conception
• attached to cases where parents claim compensation from a physician for wrongful birth of a healthy child (ie for negligently performed sterilization of a female/male which results in unintended pregnancy and birth)
• involve negligently performed surgery instead of withholding /disclosure of info that underlies tort of wrongful birth
• in wrongful pregnancy case, parents have unplanned healthy child

- sue for negligent performance of medical procedure

• in wrongful birth, parents have a planned albeit unhealthy child

-sue for negligent failure to obtain informed consent

• Cataford vs Moreau

• no consensus on parental claim for damages for cost of rearing the unplanned child to adulthood

-some courts deny claim; others allow recovery for all child-rearing expenses

• Cherry vs Borsman (p 284)

-physician sued for a failed abortion that led to damaged fetus

-wrongful life case which physician did in fact cause child’s handicaps

-awarded damages to mom for wrongful pregnancy and child for wrongful life

• Canadian position of wrongful birth
• Arndt vs Smith Case (p284)

-case settled for undisclosed sum before trial

• tort of wrongful birth serves notice to physicians they’re duty bound to provide patients with enough info to all informed procreative choices
• duty stems from patient’s legal right to prevent conception of handicapped child

• no legal regulation of artificial insemination, surrogate motherhood, in vitro fertilization

• Artificial insemination by donor (AID)
• process whereby resort to sperm donation allows childless couple to overcome obstacle of male infertility

issue of access to the procedure

should it be restricted to married couples? not married? lesbians? single people?

issue of donor records - to protect anonymity

issue of interests of child who may seek reproductive counselling

right to access medical and genetic info by AID child about biological father

• Surrogate motherhood

-resorts to sperm donation to overcome female infertility in childless couple

-she surrenders child at birth to biological father and relinquishing parental rights

-initiates step-parent adoption preceedings by father’s wife

• Baby M Case (p 293)

-Court felt child’s best interest remained with father and wife

-invalidated surrogacy contract

• Toronto - 1st surrogate birth

-mother from Florida bore to couple who paid $10,000

-not litigated cuz mother, waiving fee, left baby in hospital and returned to Florida

-father got custody

• all agreements to pay for procreation/gestation null and void in Quebec only

• in vitro fertilization (IVF)
• process whereby childless couple’s sperm and ovum fertilized in vitro and embryo implanted in woman’s uterus (or in surrogate mom’s)
• womb leasing
• medical indication that ovum donor unable to carry pregnancy term
• uterine lavage for pre-embryo transfer (surrogate embryo transfer) = intro 3rd person into process where infertile woman receives an embryo; surrogate is artificially inseminated and embryo nonsurgically removed by uterine lavage and placed in infertile woman’s uterus
• legal regulation of AID and IVF yet to happen; eligible criteria set by physicians

• mentally competent adult may consent to contraceptive sterilization, spousal consent not legally required
• Eugenic sterilization

=sterilization of mental incompetents

-action to discourage the breeding of "genetically unfit"

• Contraceptive Sterilization
• distinguished from therapeutic sterilization in which is indicated for health reasons
• no legal requirement of spousal consent as precondition to sterilization of married person

• doctor may choose to refuse services if:

-moral principles can’t abide patient’s insistence upon non-disclosure

-doubts wisdom and maturity of judgment

• Can. law yet to address question of whether mature minor should be required to wait till adulthood
• Re: Eve Case (p 300)

-banned non-therapeutic sterilization of mental incompetent adult

-non-consensual contraceptive sterilization would amount to tort of battery

-eugenic sterilization not issue cuz not looking at interest of human gene pool

-social factors were non therapeutic

• Re: K Case (p 302)

-granted consent on behalf to surgery

• Re: B Case (p304)

-strong exception to Eve ruling

-barely make the "courts therapeutic" criteria

• decision in Eve not necessarily the last word in nonvoluntary sterilization
• unless confident that case falls within parameters of Eve standard, doc advised to proceed with backing of a court order with sterilization of mental incompetent
• if unsure about mental status, doc should arrange psychiatrist assessment competency
• when asked to sterilize a mentally handicapped person, she is entitled to comply so long as patient mentally competent to consent to surgery notwithstanding mental disability

• Regina vs Morgentaler (p 308)

-removed Criminal Code restrictions on legal access to abortion

• regulation in BC de-insured abortion procedure unless performed in approved facility and necessitated by significant threat to patient’s life

4) Maternal/Fetal Conflict

• in event of conflict, unborn’s right to life prevail
• pregnant woman who doesn’t choose abortion assumed duty of care to fetus and must avoid acts known to cause serious injury/disability to unborn and provide/seek reasonable affirmative prenatal health care
• pregnant woman who’s high risk and refuses prenatal diagnosis should be subject to court order mandating procedure
• Status of fetus at Common Law
• only persons have rights and fetus is not a person
• Keeler Case (p 314)

-man kicked pregnant woman with express purpose of killing fetus

-Cesarean performed; delivered stillborn cuz skull fractured

-Court ruled since baby born dead, Keeler could not be convicted of murder

-infant couldn’t be homicide victim unless emerged from womb as living being

• Criminal Code definition of human being: child becomes human when completely proceeded, in living state, from body of mom whether/not

a) it has breathed

b) it has independent circulation

c) the navel string is severed

• Code indicates injury inflicted on a fetus (or pregnant woman) can trigger homicide prosecution but only if fetus dies after emerged from womb in living state
• R. vs Prince (p 316)

-accused convicted of manslaughter

-if child born stillborn, would have resulted as Keeler case

• R. vs Sullivan and Lemay (p 316)

-midwives couldn’t be convicted of causing death by criminal negligence

-child was born dead

-stillborn child didn’t satisfy Criminal Code definition of person

distinction between fetus and person surfaced in cases involving applications by child welfare agencies under child protection provisions granting power to apprehend child in need of protection

• Re. A Case (p 316)

-her condition might put at risk both her life and fetus

-not receiving proper medical care in preparation for birth

• Re. F (in utero) Case (p. 317)

-sought confinement of pregnant woman cuz of bizarre behaviour

-Court denied petition cuz fetus not a child

• Courts ruled that prenatal neglect (substance abuse in pregnancy) is relevant to question whether newly born child is "in need of protection" under Child Welfare legislation

• Children’s Aid Society of Kenora (District) vs L. (J) p 317

• Re. Baby R Case (p 317)

-the claimed deprivation was patient’s refusal to consent to C section

-agency’s powers to apprehend are ltd to living children that have been delivered

• women convicted of minor non-drug offences result in fine, suspended sentence, probation are for duration of pregnancy in order to protect fetus

A brain-dead patient cannot be presumed dead in strict Common Law terms until the respirator is switched off and her heart stops beating. But when her mechanical life support is terminated, the cessation of oxygenated blood flow will rapidly cause her vital organs to deteriorate. It follows that with the advent of organ transplantation, adherence to the Common Law standard would preclude the use of brain-dead donors. The reason that the brain-dead patient must be defined as legally dead is that her vital organs cannot be harvested unless the respirator remains in place until their removal by the transplant surgical team. (p.332)

Manitoba Vital Stats Act amended to provide:

The death of a person takes place at the time at which irreversible cessation of all that person’s brain function occurs. This requires the whole brain – not merely cerebral death. (This explains why a patient in a persistent vegetative state is legally alive. Although such a patient can never regain conscious awareness because cerebral functioning is irretrievably lost, total brain death has not occurred because there is still brain stem activity.)(p.333)

• 9 Provinces have yet to overrule the Common Law by statute
• but their physicians do not hesitate to apply the brain death standard that guides their Manitoba colleagues (p.333-334)
• The Common Law’s heart/lung criteria are sufficient to determine death for the patient who is not artificially ventilated. The physician still applies brain-centred criteria because she knows that total brain death quickly and inevitably ensues when the nonventilated patient loses cardiopulmonary functioning. (p.334)
• When a mechanically ventilated brain-dead donor outside Manitoba is ready for organ removal, the surgeons do not stay their hands b/c(because) the patient is alive in strict Common Law terms. If that brain-dead pt(patient) is not an organ donor candidate, her physician likewise does not hesitate to disconnect the respirator even though the pt is not dead in Common Law terms.
• In either case, physicians act in accordance with "accepted medical practice" – that when a ventilated pt is brain-dead, she is legally dead, the Common Law notwithstanding. (is accepted in both Canadian medicine and law)

C.M.A. explains that a brain-death standard was necessitated by "the development of techniques for the ventilatory and circulatory support of critically ill patients." (p.334)

• Parliament has exclusive power to legislate in relation to criminal law
• This explains why provincial statutes authorizing cadaver organ donation cannot guarantee immunity from criminal prosecution to physicians who pronounce death "in accordance with accepted medical practice."
• Provincial law is empowered to set a standard to determine death for the purpose of cadaver organ donation, but it cannot in the process stipulate the def’n of death in a criminal case. That privilege is reserved for Parliament or for a court hearing a criminal case.

1. narrow rules of evidence restrict the scope of information that can be presented to the Court;
2. interested third parties are generally not allowed to present evidence b/c that privilege is confined to the contesting parties.

In 1981 report, Criteria for the Determination of Death, the L.R.C.C. endorsed a legislative solution. It recommended that Parliament enact the following ammendment to the Interpretation Act:

1. A person is dead when an irreversible cessation of all that person’s brain functions has occurred.
2. The irreversible cessation of brain functions can be determined by the prolonged absence of spontaneous circulatory and respiratory functions.
3. When the determination of the prolonged absence of spontaneous circulatory and respiratory functions is made impossible by the use of artificial means of support, the irreversible cessation of brain functions can be determined by any means recognized by the ordinary standards of current medical practice.

The proposal underscores the distinction btwn the standard or definition of death (Section 1) and the tests or criteria for proving death as so defined (Section 2).

Section 1 is upon the death of the whole brain.

Section 2 and 3 specify the means whereby brain death is proved. If the pt is not respirator-dependent, then Section 2 authorizes the physician to determine brain death "by the prolonged absence of spontaneous circulatory and respiratory functions."

When the pt is on artificial life-support, Section 3 requires that brain death be determined by neurological examination of the brain itself. It simply requires that whatever tests employed be "recognized by the ordinary standards of current medical practice."

Section 1 – Definition of Death:

Irreversible Cessation of all Brain Functions

Tests or Criteria to Prove Section 1

1. The Cdn medical community overwhelmingly endorses the brain death standard, even though it is not the official law of the land.
2. This consensus has not radically altered medical practice, since proving brain death by neurological examination of the brain is indicated only for pts who are being artificially ventilated. Most can by determined dead when the pt has stopped breathing and has no heartbeat.
3. The primary for brain death standard is to facilitate cadaveric organ donation, and physicians already apply brain death criteria to organ donor candidates.
4. Brain death criteria are also applied across Canada to artificially ventilated pts who are not organ donor candidates.
5. The conclusion that the enactment of federal and provincial legislation is not necessary b/c the medical profession already functions as if the brain death standard were the law, and the provincial attorneys-general are content to leave well enough alone.

Concurrent causation – This principle holds that an accused need not be the sole cause of death so long as his act significantly contributed to the victim’s demise. (p.329)

A Winnipeg bar patron, Donald Junor 26, suffered massive brain damage assaulted by the two accused. At trial the two accused faced a charge of manslaughter for causing the death of Donald Junor by means of assault. The defence was based upon the centuries-old Common Law definition of death. The Common Law test ignores the brain and focuses upon heart/lung functioning by defining death as the permanent cessation of blood circulation and respiration.

In short it was the transplant team- not the defendants – who bore legal responsibility for Junor’s death because it was they who killed him!

The trial judge rejected this defence, and the jury went on to convict the defendants of manslaughter. The Manitoba Court of Appeal dismissed their appeal. The Court sidestepped the issue when the deceased had legally died. It denied the defence by invoking the Common law principle of concurrent causation. As a result the court said that the evidence was overwhelming and that whether or not the kidneys were removed, the deceased could not have lasted more than a short period of time even with artificial assistance. (p.328)

Issues of survivorship and inheritance obliged the Court to decide whether a husband and wife died simultaneously, or whether one had predeceased the other. The evidence led the Court to rule that the victims had not died simultaneously but that the wife had outlived her husband for a fleeting moment. The gushing of blood in spurts indicated a heart beat; and at Common Law she was not dead until her heart stopped beating, even though her head was lying 10 feet away. (p.331)

The accused answered a charge of murder by raising the identical defence heard the previous year by the Manitoba Court of Appeal. The Massachusetts court chose to redefine the Common Law test to accord with brain death and duly affirmed Golston’s conviction. The Court chose to exercise its authority to refashion the Common law measure of death.

A Florida appellate court affirmed a trial court decision dismissing an action by a widow seeking to recover the proceeds of her late husband’s life insurance policy.

Wife felt that husband actually died on May 28, 1986, the date of his cardiac arrest.

The physician testified that Mr. Kepler "died" in the sense that his heart stopped on that date, he admitted on cross-examination that the pt’s brain stem activity meant that he was not dead for legal and medical purposes.

All 10 provinces have enacted statutes called Human Tissue or Human Tissue Gift Acts, which authorize the removal of cadaveric body parts for transplantation (or the donation of cadaveric body for medical research/education).

Reason: in Common Law, a person had no right to control the disposition or use of his body after death. He could provide for the post-mortem donation of his body for therapeutic, research, or educational purposes; but his family was not legally bound to honour his directive. (p.345)

Tissue: includes an organ, but does not include any skin, bone, blood, blood constituent or other tissue that is replaceable by natural processes of repair.

Except in Quebec, Manitoba, and P.E.I., the inter vivos provisions in Canadian human tissue legislation regulate only nonregenerative organ donation.

Regenerative tissue donation (skin, bone, blood, etc.) is covered by the Common Law, which clearly permits the practice when the donor is mentally competent adult.

Manitoba and P.E.I. statutes define tissue to include both regenerative and nonregenerative tissue but exclude "spermatoza or ova, an embryo or fetus, or blood or blood constituents."

Any person who has attained the age of majority, is mentally competent to consent, and is able to make a free and informed decision, may, in a writing signed by him, consent to the removal forthwith from his body of the tissue specified in the consent and its implanation in the body of another living person. (mostly same for all provinces, except Ontario which age is 16 and up.) (p.346)

Although docs as a matter of practice accept only in-family inter vivos donors, none of the statutes prohibits donation from an adult to an unrelated recipient. (not done b/c of shrinking need for living donors due to new drugs)

For statutes on Manitoba (p.346), P.E.I. (p.346) and Quebec(p.348).

Summary, provided that the stipulated procedures are followed, a minor in Manitoba who has attained the age of 16 is allowed to donate nonregenerative or regenerative tissue. Prior to the age of 16, he cannot donate the former only the latter.

In P.E.I., any mentally competent person over 16 may donate both regenerative and nonregenerative tissue. A mentally competent minor under 16 may donate regenerative tissue with the consent of his parent/guardian and the consent of an independent assessment panel; a mentally incompetent minor (lacking the mental capacity to consent) may donate bone marrow with the same two consents.

In Quebec, an adult is authorized to donate both regenerative and nonregenerative tissue whereas a minor is restricted to the donation of regenerative tissue.

1. In seven provinces only an adult can donate.
2. In Ontario, Manitoba, and P.E.I., (mature ) minors over the age of 16 can donate.

1. Regenerative Tissue (e.g., bone marrow).

1. Human tissue legislation in Quebec, Manitoba, and P.E.I. permits donation by minors, although in Manitoba and P.E.I. the consent requirement is more stringent when the minor is under 16.
2. Consent to treatment legislation in New Brunswick, Ontario, and BC, provides the statutory basis for donation by mature minors. If the minor is not mature, authority could still be granted under the Common Law (that the best interest of the donor is promoted by serving as an in-family donor).
3. In the other 4 provinces, on must look at Common Law.

1. If the proposed donor has the mental capacity to consent, then the Common Law’s mature minor rule is authority for allowing the procedure.
2. If the proposed donor lacks the mental capacity to consent, a court could still authorize the procedure by applying the "benefit" rule ( that the best interests of the donor are promoted by serving as in-family donor).

All provinces except Quebec:

When such a person dies or death is imminent, the following prioritized categories of persons are authorized to consent to post-mortem donation. (p.355)

1. patient’s spouse (Only in Ontario it excludes the spouse from consenting if "living separate and apart" from the pt prior to his death or last illness.)
2. If no spouse or the spouse is not readily available, any adult child may consent.
3. If not adult child or none is easily available, either parent may consent.
4. If no parent or none is easily available, any adult sibling may consent.
5. If no adult sibling or none is easily available, then any adult next-of-kin may consent.

In each case where someone objects, the objection prevails. The reason is that the statutes disallow post-mortem donation when a relative consents but an objection is voiced by "a person of the same or closer relationship" to the deceased. But, consent from the closer relative will overrule a family member lower down the chain. (p.355-356)

There is anecdotal evidence that an objections from within the family will be honoured.

Quebec, "a person of full age or a minor 14 years of age or over: may consent to the removal of organs or tissues." A minor under 14 may donate with parental consent. Consent must be in writing or expressed orally before two witnesses. (more on p.356)

Also all statutes say that no physician who has had any association with the proposed recipient that might influence his judgement shall take any part in the determination of the fact of death of the donor. No physician who took any part in the determination of death shall participate in any way in the transplant procedures. (p.356)

Physician’s obligation to consider, the Manitoba Act stipulates that when a pt dies without having consented to post-mortem donation, "the last physician to attend the deceased person before death" is instructed to determine whether the deceased is a suitable transplant donor candidate. If so, the physician is directed to "request permission from the deceased person’s nearest relative to use the body . . . or to remove tissue . . . for therapeutic purposes." The duty is waived if the physician has reason to believe that donation " would be contrary to the (deceased) person’s religious beliefs."

Nova Scotia is the only other province with comparable legislation. Request for permission, the act provides that upon death of a patient who has not made a post-mortem direction, the hospital shall request consent for transplant purposes from the next-of-kin. The duty is waived when a physician determines that the body cannot be used for cannot be used for tissue donation or seeking permission is precluded by "the emotional and physical condition" of the next-of –kin.

The Cdn system of organ retrieval reflects an opting-in policy. Donation requires the consent of either the deceased or his next-of-kin.

Opting-out policy – which has been adopted in several countries (e.g. France) – enables mortem donation to proceed by presuming the consent of the patient and family. (Not living up to its promise.)

Quebec Civil Code waives the consent requirement when neither spouse nor next-of-kin is on hand to consent, and the organ donation is urgently required to save the recipient’s life.(p.358)

Manitoba, the statute waives the consent to requirement to enable the post-mortem removal of "eye tissue" – unless there is reason to believe that the "deceased, if living, would have objected thereto; or that the nearest living relative of the deceased objects thereto."

More on Saskatchewan and the Coroner’s Act, if corneoscleral button is suitable for immediate transplant p.358.

Manitoba statute provides that for the purpose of post-mortem transplantation, at least two physicians shall determine the "brain death" of the donor.

Elsewhere in Canada, the law stipulates that for the purpose of post-mortem transplantation, "the fact of death shall be determined by at least two physicians in accordance with accepted medical criteria." The patient must be pronounced brain-dead before he can qualify as a post-mortem donor. (p.359)

Heart transplant in Loma Linda by Baby Gabriel, that propelled the question of the anencephalic-as-orrgan-donor into the public forum. The anencephalic is not dead according to brain death standard.

Brain absent – describes anencephalic b/c its cranial vault is incomplete and all or most of its cerebral cortex is missing. Is alive b/c the infant has residual lower brain activity such that it can maintain breathing for up to a few days. The anencepahlic must be ventilated – not for its benefit but rather to preserve its organ for the ultimate recipient. As a donor candidate, the anencephalic must be declared dead before its organs can be removed for transplantation.

Provincial law cannot categorize an anencephalic as legally dead unless the province has already has a precise def’n of death.

Policy change by Dr. Donald Hill, the chief paediatrics at the Vancouver Children’s Hospital, disclosed that the hospital would no longer provide artificial respiration for anencephalics, was prompted by case which an anencephalic was ventilated for six days. Ventilator support was terminated b/c there was no available recipient for its heart.

3 mths later the Loma Linda University Medical Centre announced supension of its anencephalic/organ donor programme. Decision followed 13 unsuccessful attempts to harvest organs, said they failed dismally.

Case

Hart vs. Brown, Connecticut Court 1972.

Permitted the donation of a kidney by a 7yr. old girl to her identical twin, who had undergone a bilateral nephrectomy following a diagnosis of haemolytic uraemic syndrome. Court led to that result by evidence that a parental homograft would place the recipient at risk to suffer appalling side-effects from immunosuppressive drugs – and that in any event the survival rate of a parent-donated kidney was only 37% after 7yrs. Court authorized the procedure on the grounds that there was "negligible risk to the donor, and that an isograft (identical twin graft) was clearly in the recipient’s best interests. Court concluded that the donor would derive psychological benefit from the transplant. She "would be better off in a family that was happy than in a family that was distressed," and that her sister’s death would cause her to suffer "very great loss." The judgement in this case is compassion, not reasoned analysis of the legal issues.(p.353)

In all three cases noted on p.353, there was a finding that the donor-twin understood the nature, risks, and consequences of the proposed surgery. Given the ages of the twins – one set was 19 and two were 14 – the findings can be viewed as satisfying the mature minor rule, assuming that each of the justices was convinced that the choice was truly voluntary and not the product of open or subtle family pressure.(pp.353-354) ( Findings in the three cases: that sufficient benefit would accrue to the proposed donor. Meaning the prevention of distress caused by the death of a sibling, no the conferring of direct therapeutic gain to the donor.)

1. Termination of life-prolonging treatment at the behest of a mentally competent patient.
2. Termination of life-prolonging treatment of a mentally incompetent patient;
3. Mercy-killing at the behest of a mentally competent patient;
4. Mercy-killing of a mentally incompetent patient; and
5. Aiding the suicide of a mentally competent patient.

1, 2 - Physician acts lawfully

3, 4 - Murder

5 - Crime of aiding suicide

3, 5 - Main focus of the debate over the legalization of euthanasia

1. Passive voluntary euthanasia;
2. Passive nonvoluntary euthanasia;
3. Active voluntary euthanasia; and
4. Active nonvoluntary euthanasia.
5. Aided or Assisted Suicide

1,2 - Termination of life-prolonging treatment (fallout outside the parameters of current euthanasia debate.

a) Termination of life-prolonging treatment at the behest of a mentally competent patient (passive voluntary euthanasia)

• Patient suffers cardiac arrest and resuscitated
• After discussion with doctor, patient requests a Do-not-resuscitate (DNR) order on his chart (patient is mentally competent)
• Cardiac arrest again -- there is no attempt to resuscitate. Patient dies.

b) Termination of Life-Prolonging treatment of a mentally incompetent patient (passive nonvoluntary euthanasia)

• Patient is respirator-dependent, brain damaged, vegetative state
• Dr. advises continued treatment is pointless to sister of patient, and patient should be allowed to die
• Respirator is disconnected and the patient dies.

c) Mercy-killing at the behest of a mentally competent patient (active voluntary euthanasia)

• Patient repeatedly beseeches Dr to "put me out of my misery"
• Dr. complies by administering a massive does of sodium pentobarbital (to render him unconscious) followed by succinylcholine (which causes his death by respiratory paralysis)

d) Mercy killing of a mentally incompetent patient (Active nonvoluntary euthanasia)

• Patient compliant when treated but is verbally uncommunicative.
• Patient is bleeding at site of the tumour and is frequently choking on own blood. Curled up in fetal position, drooling and sobbing.
• No family nor friends
• Motivated by compassion, Dr. ends life as in c)

e) Physician-assisted suicide

• Dr deliberately mixes a lethal dose of drugs with water and hands patient the fatal concoction
• Patient ingests the contents, lapses into unconsciousness, and dies a quick and painless death.

• pulling the plug or letting die
• withdrawal or withholding(DNR) of life-prolonging treatment

Euthanasia - The mentally competent patient asking the physician either for the injection of lethal drugs or for lethal drugs to self-administer.

Case 1, 2 - Dr has acted lawfully by terminating life-prolonging treatment

Case 1 - Covered by the no-treatment-without-consent principle

• Patient has the legal right to choose to die rather than to undergo resuscitation in the likelihood of another cardiac arrest.
• Dr must comply to order, or transfer patient to another physician if Dr cannot accept decision
• Dr would be liable in battery for resuscitating patient

Case 3, 4 - Dr is guilty of murder under the Criminal Code.

• Legally irrelevant that the deceased consented or even instigated the act (voluntary) or that the deceased was never consulted (nonvoluntary).
• Sec 14, Criminal Code

Case 5 - Breach of section 241 of criminal code (Aiding suicide)

• Crime of aiding suicide is committed whether or not the person being assisted succeeds in his attempt.

• anyone who knowingly aids the effort has committed the crime of aiding suicide (it is a crime to assist someone to commit suicide)

• Dr withholds or withdraws treatment to enable nature to take its course.
• It is the disease process that kills.
• Dr. has not killed or caused the patient's death.

If an otherwise healthy patient who desired treatment died from untreated pneumonia, the physician's failure to treat would be considered to have caused the patient's death.

Ordinary treatment - a reasonable hope of benefit for the patient

• if treatment provides net benefit
• morally obligatory
• must always be furnished

Extraordinary treatment - treatment that cannot offer such hope.

• fails to benefit patient
• not morally obligatory
• may be withheld or withdrawn
• its burden outweighs its benefit
• irreversibly doomed patient

• it offers an obvious benefit to the patient because it promises to help return him to his pre-morbid state;
• it provides a net benefit tot he patient even though it cannot cure his conditions

• Provides neither benefit nor burden
• That its burden outweighs its benefit (no net benefit)
• Persistent Vegetative state (PVS)
• There is no benefit from artificial life-support because the patient's total lack of awareness puts the patient beyond the benefit-burden equation.
• Respiratory dependent mentally competent patient suffering from amyotrophic lateral sclerosis (ALS)
• Patient is paralysed, and pleased the removal of respirator
• Burden of treatment exceeds its benefit because mechanical respiration benefits the patient because she is mentally intact.
• Beneficial effect is overcome by the burden of her misery, as indicated by her preference for death over life in her current sate.
• Therefore, respirator is life-prolonging treatment because it fails to offer "a reasonable hope of benefit for the patient."
• Fails to offer "a reasonable hope of benefit for the patient"

• a physician can lawfully treat a mentally competent patient only when there is consent to treatment
• without consent, civil wrong or tort of battery is committed

• 3 American Cases affirming right of mentally competent patients refusal of life prolonging treatment:

1. Abe Perlmutter Case (p 374)

• patient petitioned for an order to restrain hospital from maintaining him on respiratory therapy against will
• death anticipated within a short time
• wife and children supported his decision, but physician and hospital refused to comply
• judge found him mentally competent to refuse treatment and ordered hospital to yield to demand

2. Robert Quackenbush (p 374)

• hospital petitioned for judicial appointment of a guardian for patient
• dead within 3 weeks unless gangrenous legs amputated, which patient withheld consent to surgery
• patient’s mental state elicited from 2 psychiatrists: i) witness for hospital - alleged patient mentally incompetent and couldn’t exercise informed choice to refuse surgery
• ii) witness called by Court - concluded mentally competent to refuse
• judge concluded mentally competent and denied hospital’s petition
• expresses pref for death over prolonged misery of terminal or permanently debilitating disease; burden of treatment exceeds benefits

3. Rosaria Candura (p 376)

• initially agreed to amputate leg but later withdrew consent
• her daughter filed petition seeking apptment as temporary guardian for purpose of consent to surgery
• prior finding of incompetency doesn’t preclude subsequent determination that patient is competent to decline treatment -- accepted if can decide in the here-and -now and don’t consider prior state of incapacity (p385)
• issue was whether refusal was informed choice and court found that it was informed

• Canadian Law - Nancy B (p 377)
• illustrated that at patient’s request, physician is lawfully entitled to withhold or withdraw life-prolonging treatment
• affirms informed consent and patient self-determination
• sought court order to force caregivers to disconnect life-support apparatus
• repeatedly asked removal (as in Perlmuttter case)
• addressed consent doctrine: patient’s right to refuse treatment -- not a "right to die" case
• was mentally competent according to hosp psychiatrist, but physicians refused to honour request cuz compliance would be unethical and illegal (euthanasia and aiding to suicide in Criminal Code)
• mentally competent patient cannot be treated without consent, else commits battery and criminal assault
• Nancy went to court to enforce right to autonomy (compares to Mallette vs Shulman which ruled battery)

• Commentary note on 4 cases
• in Perlmutter and Nancy B, treatment must be withdrawn at insistence of patient suffering degenerative disorders
• in Candura and Quackenbush, treatment must be withheld at insistence of patient suffering permanent and severe debilitation
• to 4 cases, not life-saving treatment, but life-prolonging cuz didn’t hold promise of sustaining life that to patient was worth living
• in each case, no-treatment-without consent principle meant relevant ques was whether patient was mentally competent to refuse treatment
• distinction between life-saving and life-prolonging treatment is legally relevant when patient is mentally incompetent and hasn’t signed advanced directive (Karen Ouinlan case Court authorized termination of artificial life-support measures cuz was life-prolonging and not life-saving, thereby not serving patient’s best interests)
• when patient is mentally competent, whether treatment serves best interest is legally irrelevant (Mallette vs Shulman case - cannot be treated as long patient understands condition, nature of treatment, and likely consequences of no-treatment decision)
• Mental Competency to refuse treatment
• mentally handicapped patient might be mentally incompetent for certain purposes could still consent to sterilization procedure if understands the connection between sexual intercourse, pregnancy, and childbirth and nature of risks and consequences of procedure
• in Perlmutter and Nancy B. cases, hospital conceded mental competency; in Candura and Quackenbush, hospital had psychiatric testimony

• Re Lydia E. Hall Hospital (p 385)
• illustrates person’s right to bodily self-determination if wishes denied after having expressed earlier wishes
• patient decides to stop treatment
• was mentally competent when patient signed a printed hospital form to refuse treatment
• hospital petitioned for a court order to continue treatment
• Court denied petition cuz currently incompetent patient had previously made and informed, rational and knowing decision to forgo treatment
• ques is whether patient had cognitive capacity to understand condition and consequences and not whether patient made medically sensible decision

• Tennesee Dept of Human Services vs Mary Northern (p 386)
• mentally incompetent patient refuses surgery
• petition for a court compelling surgery
• alleged that the patient understood neither severity and consequences of disease process nor failure to get treatment would lead to death
• court agreed she lacked mental capacity

• Mental Competency: Physician’s Responsibility
• when not mentally competent patient has treatment removed (ie. disconnect ventilator at patient’s wishes), physician may be charged under criminal and/or civil liability

• criminal negligence: reckless or wanton disregard for the lives or safety of other persons

• in civil suit for wrongful death, next of kin would have to prove patient’s incompetency and physician’s negligence in not knowing it

damages depend on degree of harm cause by the wrongful termination of treatment -- the grimmer the condition and prognosis, the less the amount of damages coverable

• Legal basis of the right of the competent patient to refuse life-prolonging treatment (p 389)
• Section 14 of Criminal Code
• modifies Common Law rule that one can’t consent to being killed
• precludes a mercy-killing defence when doc inflicts death by lethal injection upon consenting patient
• irrelevant to termination of life-prolonging treatment by patients’ request cases cuz natural death (by disease process)
• Section 215 of Criminal Code
• says "everyone is under legal duty to provide necessaries of life to person under his charge..."
• irrelevant - patient refusing life-prolonging treatment has in effect discharged doc from duty to provide care
• Section 216 of Criminal Code
• provides that anyone undertaking med treatment is "under legal duty to have and use reasonable knowledge and skill and care in doing so"
• not applicable cuz in Shulman or Nancy B cases, when patient says NO to reasonable care physician must stop to objected treatment; if treatment continued, commit battery and assault under Section 265 for intentionally applying force to nonconsenting person
• Section 217 and 219 of Criminal Code (p 390)
• s. 217: "everyone undertaking to do an act is under legal duty to do it if omission to do act is dangerous to life"
• s. 219: "everyone is criminally negligent in doing anything or in omitting to do anything that’s legal duty to do ..."
• breach of legal duty under section 217 triggers a prosecution under 219
• applies to med treatment only if doc acted unreasonably in ending treatment that’s keeping patient alive
• notion of abandonment
• ruled in Shulman Case where physician obliged to comply even though regards patient’s decision unwise

• a patient can release physician from duty to treat cuz relationship is contractual and competent patient is free to sever connection
• Can docs accustomed to terminating life-prolonging treatment in hopeless cases when patients no longer mentally competent to say "pull the plug" - assume duty to treat is discharged when continued treatment futile
• halt to life-prolonging treatment legally protected cuz part of no-treatment-without-consent principle

• anyone is legally free to commit suicide, but anyone helping commits offence under s. 241 of Criminal Code
• Manoir de la Pointe Bleue Inc. vs Corbeil (p 394)
• quadriplegic resident wanting to fast unto death
• judge ruled to make food available to patient but not obliged to forced feeding
• question of informed decision of mentally competent patient
• judge ruled that decision to terminate life must be honoured by caregivers and not considered euthanasia/mercy-killing
• not rejecting life-prolonging medical treatment - so precedent cases (ie Nancy B) not directly applic.
• caregivers not regarded as aiding suicide cuz not under legal duty to prevent from carrying out wish
• no-treatment-without-consent principle disallowed duty to force feed and prevent death
• in cases such as Nancy B.’s can’t seek relief under "liberty" and "security of person" provisions in Section 7 of Charter of Rights and Freedoms cuz Charter only binds public and quasi-public institutions and hospitals don’t fall under category (Stoffman Case)

The Case of Lisa Dorothy K.

A 12 year old girl had a disease and required chemotherapy. The parent’s are Jehovah’s witness. They brought her to a local physician and they told her she would necessitate blood transfusion. The parents withheld consent. The girl also expressed a strong aversion to the chemotherapy regimen because of its known side-effects. They went to Mexico where certain substances stabilized her health for a very brief period of time. They went to Thunder Bay where chemotherapy and blood transfusions was again proposed and again rejected. Then to Florida for a mega-vitamin regimen and then went worse. Then finally to the Hospital for Sick Children in Toronto. and chemotherapy was brought up again. The parents refused and the hospital informed the Children’s Aid Society. The agency promptly petitioned the Court alleging that the child required protection the provincial Child Welfare Act which defines " a child in need of protection" to include one whose parent refuses. This treatment offends her religious beliefs but also because she does not want to experience the pain and anguish associated with the treatment process. The Court described her as a mature minor and gave the decision to her. Finally, she went on the mega-vitamin therapy and died.

The Medical Consent of Minors Acts sets 16 as the age of consent to medical treatment and it provides that a minor under the age of 16 is empowered to consent to medical treatment if: the minor is capable of understanding its nature and consequences and the treatment is in the best interests of the minor and his continuing health and well-being.

There are 5 point medical treatment protocol for Jehovah's Witnesses which suggests that health care personnel consider the following options:

1. Pursue nonblood medical alternatives
2. Consult with other doctors experience in non-blood medical management at the same facility.
3. Contact local Hospital Liaison Committee for Jehovah’s Witnesses to locate cooperative doctors at other facilities for consultation on alternative medical care
4. Transfer patient, if necessary, to cooperative doctor or facility before the patient’s condition deteriorates.

In a rare situation, if the above steps have been exhausted and governmental intervention is deemed necessary, the patient the parents, or the guardian should be notified ASAP of such intended action.

Kosack Case:

1. Chemotherapy treatment -- with its grim side effects -- would last for a considerable time, and even then the odds were against a favourable outcome.
2. It is anticipated that repeated blood transfusion would be necessary, the number ranging as high as 15 for one cycle of chemotherapy treatment.
3. The family had an alternative treatment.

Yeatts and Walker Case:

1. an unfavourable prognosis even with aggressive medical management
2. the breach of the patient’s bodily integrity by not simply one but rather multiple transfusions over time
3. the patient’s firm resolve to resist treatment believed to jeopardize his eternal salvation.

Charter: Section 2 protects "freedom of conscience and religion

Section 7 guarantees the right to "liberty and security of the person"

Section 15 in part prohibits discrimination based on age and religion.

However, Section 1 can override all these saying that the rights and freedoms guaranteed by that document are "subject only to such reasonable limits prescribed by law as can be demonstrable justified in a free and democratic society."

The first generation directive: the living will.

• A living will, so named because it stated the maker’s anticipatory refusal of life-prolonging measures in the event of a terminal illness in which he was mentally incompetent to express his wishes.
• In Canada, the question of living wills was addressed by the Law Reform Commission of Canada in its 1983 report, Euthanasia, Aiding Suicide and Cessation of Treatment.
• Living will statutes do not compromise the principle that there is no legal duty compelling physicians to maintain non-beneficial life-support measures for mentally incompetent patients.
• A living will statute is designed to grant the patient the authority to direct the physician as to when the time has come to let him die.

• A 47 year patient with AIDS-related-complex (ARC) was admitted to hospital in a struporous condition.
• The patient was diagnosed from suffering toxoplasmosis (based upon tests indicating multiple brain lesions)
• Patient had signed a living will that stated:

• A conflict arose between the patient’s physician and his partner as to whether the condition was covered by the document.
• According to the condition, the patient was expected to recover from the toxoplasmosis with two weeks and regain the ability to communicate during the time.
• Court ordered the hospital to terminate treatment.
• A living will directs the physician to go what she is already lawfully entitled to do – terminate life-prolonging treatment when its ceases to offer a reasonable hope of benefit for the mentally incompetent patient.
• The living will assumes a valuable function when it affords an opportunity for the patient to discuss his medical future with his physician.

The second generation directive: the advanced directive.

• Emanual/Emanual second generation directive (hereinafter called the Medical Directive).
• The directive’s key feature is a 9X6 grid that allows one to decide upon nine medical treatment interventions for each of six patient conditions.

1. permanent unconsciousness (coma or persistent vegetation state)
2. coma with slight chance of recovering higher mental functioning
3. irreversible brain damage (unable to recognize people and terminally ill
4. irreversible brain damage but not terminally ill
5. a situation "this is important to you and/or your doctor believe you should consider in view of your current medical situation
6. temporary incapable while in one’s current state of health.

• With reference to treatment options, the directive substitutes nine specific interventions for the vagueness of such terms as "artificial means" and "heroic measures".
• Regarding each intervention, the directive offers four treatment options to the patient--want, don’t want, undecided, or a trial.
• The Medical Director provides for the appointment of a medical proxy under the heading "Health Care Proxy".
• The Medical Directive is the prototype of a more sophisticated approach to health care planning than is provided for the living will.
• The second generation document is commonly referred to as the advanced directive.
• It contains two parts: instructional directive (directions regarding treatment decisions for particular conditions) and the proxy directive.
• The theory is that by combining the two directives is the same document, the maker is enable to maximize control over his medical care and when he becomes mentally incompetent to make his own treatment choices.
• Another Canadian second generation directive which is not focused on specific treatment opinions but rather upon level of care. This is the "Let Me Decide" pamphlet.
• The directive enables one to specify a particular level of care—palliative, limited, surgical, or intensive—in the event of either an irreversible or reversible life-threatening illness.

• The detailed-intervention-focused directive is designed to enhance patient self-determination by reducing uncertainty in medical decision-making when the patient can no longer speak for himself.
• In theory, the instructional directive broadens the scope of patient autonomy because it enables one, while competent, to project his preference regarding life-sustaining treatment onto situations of future incompetency.

• Provides for an appointment of a representative/agent, whose role is to be on the hand to engage in a continuing dialogue with the patient’s care-giver and to make decisions based upon the patient’s condition over time.

The statue of Advanced Directives in Canada: At Common Law, read page 529.

The statue of Advanced Directives in Canada: Legislation, read page 530.

• In any event, advanced directives may serve to take weight off the shoulders of physicians who struggle with end-of-life decision-making for mentally incompetent patients.

Euthanasia - compassionate killing by the direct act of commission.

In all common law jurisdictions, the criminal law defines the act as murder, even if the deceased had repeatedly implored the accused to put him out of his misery.

Mercy-killing (active euthanasia) -compassionate killing by a direct act of commission- such as when a physician deliberately injects a lethal dose of morphine.

Mercy killing is Murder even if the patient had repeatedly implored his physician to put him out of his misery.

• Alberta Couple faced a murder charge in connection with the death of their two-year-old son, who was asphyxiated when his father attached a rubber hose to the exhaust pipe of his automobile, ran the hose through a window into the child's room, and started the engine.
• Son suffering terminal cancer and was in unremitting pain.
• Prosecution proved a case of premediated murder, jury acquitted

• Saskatchewan farmer, Robert Latimer, convicted of second-degree murder or killing his severely disabled daughter by carbon monoxide poisoning.
• Trial judge instructs jury that … the circumstances urgently compelled Latimer to commit the crime in order to prevent a greater evil- the continued suffering of his daughter … was not available to the accused. The defense was not allowed because its recognition would have established a legal excuse for the killing of the severely disabled by care givers pleading that they had acted to put their loved ones out of their misery.
• Latimer's act is first-degree murder (a planned and deliberate killing) but convicted of second-degree murder.
• Appeal:
• Dissenting opinion: Latimer had committed the act of murder, but it was by "love, mercy and compassion".
• Mandatory sentence fell within the prohibition against "cruel and unusual" punishment as found in section 12 of Charter of Rights and Freedoms.
• Latimer could ask Parliament to alter his sentence by exercising its royal prerogative of mercy.
• Latimer promptly sought leave to appeal the ruling to the Supreme Court.
• Court accepted a guilty plea to a lesser charge and Latimer is not incarcerated. (10 year sentence)

• Sentences of probation and community service on Halifax couple
• Pleaded guilty to Manslaughter in connection with death of Myer's father.
• Myer's father repeatedly pleaded to Cheryl and Michael to end his life
• Cheryl and Michael mothering father with a pillow
• Judge noted that they had acted out of the "compassion, mercy, and love"
• Judge commented that the crime did not warrant a lengthy prison sentence and that a short term would make a "mockery" of the principle of general deterrence.

• Charged with murder of husband
• Husband blind, hearing impaired, and afflicted with Alzheimer's
• Husband begged her to help him die
• Attempted suicide (both of them OD'd on sleeping pills) a month prior to killing
• Wife stabs husband twice, then attempts suicide by stabbing herself 5 times.
• In pleading guilty to manslaughter, she told the court that she did not regret killing her husband and that "I was disappointed when they resuscitated me."
• Brush spared incarceration
• Judget described the killing as "a desperate attempt to end her husband's life with some dignity" and that "she has already suffered a harsher sentence that could ever be imposed on her life -- the loss of her loving husband"

• Son charged with Attempted murder of his mother with breast cancer
• Son fed painkillers to mother in attempt to end her life
• Painkillers didn't kill her, mother dies 3 days later when life-support measures were withdrawn.
• Cashin was permitted to plead guilty in Provincial Court to the Criminal code offense of "administering a noxious thing".
• Judge tells Cahsin: "Given the fact this was an act of love, it would be contrary to the whole philosophy of criminal law to incarcerate you"

• Neonate died in Edmonton hospital in circumstances that led to a charge of first-degree murder against Dr.
• Infant severely brain damaged and suffering from convulsions.
• Infant injected with morphine and died
• Dr. Found infant's suffering intolerable hence ordering fatal dosage
• Exact cause of death unknown
• Infant was in any event dying from other causes
• Matter died because Canadian government was unable to obtain his extradition.

• Toronto nurse charged with first-degree murder
• Given a lethal dose of potassium chloride to dying patient
• Comatose patient
• After consulting with patient's family, attending Dr. disconnected ventilator after injecting patient with morphine and valium and leaving an order calling for repeated dosages
• Mataya then issued dose of potassium chloride.
• Guilty plea to Criminal Code offence of "administering a noxious thing" (sec 245)
• Could not prove that injection was cause of death

• Dr. administers a lethal dose of potassium chloride to dying AIDS patient
• Patient repeatedly begged for a lethal injection
• Pain was not relieved by narcotics, huge amounts of morphine weren't working; terminal case, and hours away from dying anyway
• Doctor acted in the interests of patient
• Justice Ministry declined to lay a murder charge

• Dr. charged with second-degree murder after giving an injection of potassium chloride to dying patient with cancer.
• Patient asked removal of respirator to hasten death
• Dr. removes respirator, and administers morphine to prevent her from experiencing the terrors of suffocation.
• Injection of potassium chloride which was direct cause of death.
• Dr. permitted to plead guilty to the offence of administering a noxious thing
• Choice of being suspended for 90 days, or developing a protocol on the withdrawal of life-support from terminally ill patients

• Consent or non-consent of the deceased is deemed legally irrelevant
• Deed itself - the deliberate lethal overdose - that constitutes the crime of murder
• Mercy Killing vs. Other intentional killings
• Compassion for the victim - is legally irrelevant
• Murderer's motive is irrelevant.
• Only the fact that he did or did no mean (intend) to cause death is considered relevant.
• Is it what he meant to do?
• Motive aside, the stark fact that the killing was intentional is considered sufficient to support a murder conviction.
• Plea of provocation
• Reduces murder to manslaughter
• Accused who explodes in murderous rage in response to an assault or mere verbal insult by the victim
• Motive is addressed -- the reason why he intentionally killed

1. the crown attorney's discretion to reduce the charge from murder to manslaughter (and unlike murder there is no mandatory minimum prison sentence for manslaughter), or even to reduce it to the offence of "administering a noxious thing."
2. The trial judge's authority to accept a guilty plea to a lesser offence than that charged
3. The jury's power to acquit on compassionate grounds, even if instructed that the accused has no defense in law (or to bring in an insanity verdict that is not supportable by the evidence).

Plea to manslaughter - Short prison term (1 or 2 years), or more frequently is placed on probation or given a suspended sentence.

Rarely convicted of murder when evidence indicates that the killing was motivated by compassion.

Perverse verdict -- One that flies in the face of the evidence

• Crown cannot appeal unless the trail judge incorrectly stated the law when charging the jury

4 options to pleas:

1. Guilty of first-degree murder
2. Guilty of second-degree murder
3. Not guilty
4. Notwithstanding an open-and-shut case of guilt

Mercy-killing is murder, whether the compassionate act is committed by the victim's spouse, sibling, child, parent, or physician.

• Breast cancer patient, prognosis is death in 2 months
• Patient informs Dr, she wants to die at home and intends to commit suicide
• Patient asks Dr to administer sufficient medication to end her life at the time of her choosing
• Dr. prescribes oral morphine and discharges patient
• Dr. advises patient to gulp down 1/4 of the bottle when she feels ready to die
• Patient does from OD

Critique:

• Dr. commits an offence under Section 241 of Criminal Code - abetting, counseling, or aiding a person to commit suicide
• Counselling - encourage, advise, or recommend
• Aiding - Assist intentionally
• Dr. advises patient how to commit suicide
• Dr aids by providing the means for the patient to commit suicide
• Dr counsels the suicide because she knows full well that the patient intends to take her life, and yet she provides information for the purpose of assisting her to that end.
• Dr aids in suicide because, knowing full well that the patient so intends, she provides the means to enable her to accomplish that result.

• Same prognosis and diagnosis as case 1
• Morphine is prescribed for pain relief
• Patient asks how much will be needed to kill her
• Dr answers, but advises patient not to kill herself
• Patient agrees
• Patient dies of OD

Critique:

• Dr neither aids nor counsels suicide, although she provides the means
• Purpose was not to enable the patient to commit suicide, therefore, Dr does not aid
• Dr. answers a question that the patient was surely entitled to ask.
• Dr does not counsel because the Criminal code requires that she inform with the express purpose that her advise be acted upon.

• Same prognosis and diagnosis as case 1
• Dr advises patient not to do anything foolish (i.e. take 200 milligrams dose at one sitting, hence kill her)
• Patient has not broached the subject of suicide
• Dr suspects patient of committing suicide
• Telling patient that OD will kill her because patient is entitled to know.
• Dr has pointed the way, but, it is the choice of the patient to kill herself
• Patient dies from OD
• Note is found, thanking Dr

Critique:

• Dr does not counsel suicide
• Words to encourage patient is not enough to convict
• Must prove Dr's intent to encourage or persuade the patient to commit suicde.
• Dr makes patient aware of the option that was hers to exercise if she so chose.
• Dr counsels patient's free choice
• Dr does not aide the patient's suicide
• Dr prescribed medication for pain relief and not to commit suicide