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Report No. 196

One must read section 217 in conjunction with section 45 and 219 of the same Code:

"Section 45: Surgical Operations: Everyone 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."

Section 219: Criminal negligence: (1) Everyone 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 the above section 219, the notion of conduct which shows wanton or reckless disregard is introduced.

The Judge asked the question: 'Can the conduct of a physician who stops the respiratory support treatment of his patien.- at the freely given and informed request of the patient, and so that nature may take its course, be characterized as unreasonable? Or does conduct denote wanton and reckless disregard?'

The Judge answered: 'I do not believe so'.

He then referred to ss 222 to 241 of the Criminal Code which deals with a different form of homicide and he stated that what he had just reviewed was sufficient to conclude that the person who would have to stop Nancy B's respiratory support treatment in order to allow nature to take its course, would not in any manner commit the crimes prohibited by these sections. The same applied to section 241, aiding suicide.

He adds, however, 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 could be the result of nature taking its own course.

The Judge finally permitted the plaintiff's attending physician, to stop the respiratory support treatment being given to the patient, when she so desires; her consent must however be checked once again before any act in this regard is done. He also permitted the physician to request from the defendant hospital the necessary assistance in circumstances such as here, so that everything can take place in a manner respecting the dignity of the plaintiff.



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




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