Palliative Care and End of Life Decisions

In April of this year the Canadian Medical Association Journal published an editorial article entitled “Ending life with grace and agreement”.  Sadly, the article seemed to demonstrate neither.

The article concerns the case of Samual Golubchuk, an 84-year-old Winnipeg man who found himself at the centre of a dispute when his doctors wanted to remove his feeding tube and his children wanted him to continue receiving care.  Unlike the well known case of Terry Schiavo, this family was in full agreement that their father should receive the treatment– it was the hospital that was refusing to accept their wishes. 

Mr. Golubchuck’s children cited their father’s ongoing improvement as well as his beating heart and brain activity as evidence that he was not ready to die yet.  They also provided evidence from other physicians that supported this position and their lawyer argued that to hasten his death would be akin to murder.   The hospital felt that it was the doctor’s job, not the court’s, to decide what treatment is necessary and that Mr. Golubchuck was unlikely to recover.  The hospital refused to continue the treatment.  The Court granted Mr. Golubchuck a temporary reprieve when his children received an injunction order from the Court allowing Mr. Golubchuck to continue receiving care until the case could ultimately be decided.  As a result, three doctors at the hospital resigned.

The editors from the Canadian Medical Association Journal do not support the Court’s decision and point to several lessons they say can be learned from this case.  The article states:

First, the considered withholding or withdrawal of life sustaining care is not ‘murder’.  Lawyers may make it seem so by exploiting the dubious distinction between acts and omissions…wise judges would reject this linguistic charade and bravely adopt an ethical approach to decision-making, which always emphasizes the best interest of the patient”.  (1115)

Despite the regard for members of the legal profession, the article is missing an important principle.  The “best interest of the patient” will always be a careful balancing of acts and omissions.  When we, as a society, deal with critical matters such as life and death it is never a charade to deal carefully with where the line can be crossed. 

This case is a good example of that.  Feeding tubes have been at the centre of past controversy because to remove them means in essence that the patient starves to death.  In Terry Schiavo’s case, it took thirteen days before her body finally succumbed to starvation.  While this commentary is not intended to establish which medical treatment is appropriate for every situation, it is an attempt to illustrate why these decisions cannot be made lightly and Court may be just the place for them. 

The article’s second “lesson” was aimed squarely at religious communities.  Mr. Golubchuk was Jewish and his children pointed to his religious beliefs when demonstrating what he would have wanted if he had been able to express himself.  The editors comment, “some families will overreach in their demands to preserve life, often because they use fundamentalist religious beliefs or cultural norms to narrowly define the best interest of the patient”.  He goes on to explain that the right to life, just like the right to religion, is not absolute, concluding, “to make religion a factor in allocating a hospital bed is inequitable, for it privileges religious patients over others who may need care more urgently and whose chance of a favourable outcome may be better”. 

Privileges religious patients?  The article has not established that it is only religious families that face these dilemmas.  This case never had to be about religion.  It was about children who believed their father required care versus a hospital who felt that it was not warranted.   This case is also about the value of a human life.  This is not necessarily a religious question.  The suggestion that the religious are somehow being elevated to an elite status is unwarranted and offensive.  

Perhaps even more troubling is the suggestion that as a society we should enshrine the principle that your right to life is subject to the number of hospital beds available or the doctor’s belief in the value of your life.  While this may be a sad reality for some, it is not a view we should be eager to embrace.   

Mr. Golubchuck died peacefully this summer, before his ultimate trial could be heard in September.  His family is pleased that he died of natural causes while still on life support.  What is left open though is the question of legal decision making power.  In January, Manitoba passed legislation that concluded that the treating physician was the ultimate decision maker with respect to treatment, taking it out of the family’s hands all together. 

This article was written by Meghan A. Maddigan, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.