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Report No. 196

(2) Nancy B vs. Hotel-Dieu de Quebec, (1992) 86 DLR (4 th ) 385 = 1992 DLR Lexis 1762 decided by the Quebec Supreme Court. (Dufour J)

The plaintiff, aged 25, suffered for two and a half years from Guillia.- Barre Syndrome, an incurable neurological disorder that left her incapable of movement. She could breathe only with the assistance of a respirator. With it, of course, she could live a longer time, but without it, her life would be shorter. Her intellectual capacity and mental competence were unaffected. She wanted discontinuance of the treatment.

To establish her right to refuse further treatment, (including the continued use of the respirator), she commenced an action for an injunction against the hospital and as also her physician to require them to comply with her decision for stopping the respiratory support. The hospital entered appearance but did not contest her claim. Her physician did not appear. The Judge, of his own motion, made the Attorney General of Quebec a party. All other parties were represented at the hearing.

The Court held that the plaintiff was entitled to the injunction. Permission should be given to her physician to cease treatment with the respirator at a time chosen by the plaintiff. The physician was entitled to the assistance of the hospital.

The Court referred to the Articles of Civil Code and certain sections of the Criminal Code.

Use of a respirator to maintain life is a 'treatment' and hence is something within the individual's control. As per Articles . 19, 19(1) of the Civil Code of Lower Canada, the body of every person is physically inviolable except with the person's consent or legal authority, and no one need submit to any treatment, examination or other intervention (against his or her will).

By virtue of Ethics of Physicians RRQ, C (1981, C.M-9, r 4 Articles 2.02.01, 2.03.02, 2.03.28), a person is entitled to autonomy in respect of his or her body. No treatment may be given to a person except with that person's consent or that of someone authorized by law. A physician is obliged under the Public Health Protection Act, R.S.Q 1977 (C. p 35) to protect the health and well-being of an individual, but must obtain the free and informed consent of the patient to any treatment.

It was held that the right of the individual to refuse treatment is almost absolute, being subject only to a corresponding right of others. The individual may not threaten the life or health of others. The individual has the right to determine whether or not to accept treatment; and putting and keeping someone on a respirator without an informed consent is an improper interference with the person. The Criminal Procedure Code (R.S.C. 1985, C. C-46) does not affect the case. If treatment is withdrawn, the plaintiff's death would be natural and would not involve homicide or suicide.

The Court referred, among other decisions, to Cruzan decided by the US Supreme Court.

It may here be useful to refer to some of the statutory provisions of Lower Canada referred to in the judgment.

Civil Code:

Art 18 of the Civil Code states that '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'. Article 19 states that the 'human person is inviolable and no one may cause harm to the person of another, without his consent or without being authorized by law to do so. Article 19.1 states that '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. (Art 19.1 was added on 22 nd June, 1989). Even before Article 19.1 was inserted, one could infer from section 42 of the Public Health Protection Act, 1977 (RSQ 1977C p.35) that an institution or a physician had to obtain the consent of the person whose life was in danger, before providing care or treatment.

The Code of Ethics of Physician, RRQ. 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.

Ethics: Rule 4, paras: 2.02.01. "The physician must not, by any means, either directly or indirectly, interfere with the patient's freedom of choice of a physician."

"2.03.28 Except in an emergency, a physician must, before undertaking an investigation, treatment or research, obtain informed consent from the patient or his representative or any person whose consent may be required by law.

2.03.29 A physician must ensure that the patient or his representative or the person whose consent may be required by law, receive suitable explanation on the nature, purpose and possible consequences of the investigation, treatment or research which the physician prepares to make."

In Article 19.1 of the Civil Code, the legislature has made no distinction between beneficial and non-beneficial care.

After referring to these provisions, the Judge in Nancy said that using a respirator was part of 'medical treatment'. 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. She can require the respiratory system to be removed.

The Judge observed: "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."



Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back




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