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By Meghan Maddigan
COMMENT
LAST APRIL, the Canadian
Medical Association Journal published an
editorial entitled ‘Ending life with grace and agreement.’
Sadly, the article seemed to demonstrate neither.
The editorial concerns the case of Samuel Golubchuk,
an 84 year old Winnipeg man suffering from a brain injury –
which left him unable to walk, eat, speak or breathe without life-support
systems.
Golubchuk was at the centre of a dispute concerning
the removal of his respirator and feeding tube.
Unlike the well-known case of Terry Schiavo, the
man’s family was united in agreeing that their father should receive
full medical treatment. The hospital was refusing to accept their wishes.
Golubchuk’s children argued their father was not
ready to die; as evidence, they noted his medical improvements, beating
heart and brain activity.
Independent physicians supported their position, and
their lawyer argued that to hasten his death would be akin to murder.
In contrast, the hospital felt Golubchuk was unlikely
to recover and refused to continue the treatment. They believed it was the
doctor’s job alone to decide what care a patient could receive.
The provincial College of Physicians and Surgeons
supported the hospital and released a policy statement that the treating
physician was the ultimate decision-maker with respect to treatment.
Manitoba’s Court of Queen’s Bench issued a
temporary injunction allowing Golubchuk to continue receiving care
until the case could ultimately be decided. As a result, three doctors at
the hospital resigned.
The editors of the Canadian
Medical Association Journal criticized the
court’s decision and pointed to several lessons they said could 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.”
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 the issue of where the line should be drawn.
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The article’s second ‘lesson’ was
aimed squarely at religious communities. 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 commented: “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.”
It went 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.”
This position is troubling for at least two reasons.
First, it is not only religious families who face
these dilemmas. The suggestion that the religious are somehow being
elevated to an elite status is unwarranted and offensive.
The second (and perhaps more troubling) suggestion is
that your right to life is subject to the number of hospital beds available
– or subject to 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.
Samuel Golubchuk died peacefully of natural causes
this summer, before his ultimate trial could be heard in September.
What is left open, though, is the question of legal
decision-making power.
When the line between medical and moral is blurred,
who ultimately decides what is grace?
Meghan Maddigan is a lawyer with Kuhn & Company,
based in Abbotsford and Vancouver.
November 2008
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