In the Jan/Feb 2004 issue of LifeCanada News it was reported that on December 24, the Euthanasia Prevention Coalition (EPC) legal counsel, Hugh Scher, obtained intervenor status in the case of an 81 year old woman, Mrs. Holland, who would be denied life-sustaining medical care against her previously expressed wishes.

The trial was heard by Justice Cullity on January 20 - 23, 2004, in Toronto. The trial was originally scheduled for two days, but due to the gravity of the issues and the potential for legal precedents, the Justice agreed to extend the case by one and a half days to ensure that all arguments were properly heard.

The hearing involving the lawyer for Mrs. Holland’s daughters (Joyce Chan), EPC legal counsel Hugh Scher, two lawyers representing the doctor; and two lawyers representing the Attorney General of Ontario was based on the Consent and Capacity Board decision of October 6, 2003.

When considering the legal teams representing the doctor and the Attorney General, you can understand why we referred to this case as a “David vs Goliath” case.

Important Information

After surviving a second bout with pneumonia in September, 2003, the medical team decided that Mrs. Holland should receive no further life-sustaining medical treatment. This means that she would be denied ventilator support for breathing, suctioning of the mucus in her lungs, access to ICU, and refused medication for her blood pressure.

Due to her weakened condition from two bouts of pneumonia, withholding ventilator support, lung suctioning, and blood pressure medication would have resulted in her death.

Mrs. Holland named her daughters in 1998 as her Powers of Attorney for Personal Care. Her daughters refused to consent to withholding life-sustaining medical treatment. They stated that their mother had clearly told them that she wanted all medical treatment until her natural death.

In 1996, Mrs. Holland’s husband died of Alzheimer Disease. She had been very upset with the level of care that her husband received. When she signed the Power of Attorney for Personal Care, she stated that she wanted no limits on her daughters ability to make decisions for her.

Not satisfied that the daughters would not consent to withholding life-sustaining medical treatment, the doctor in charge asked the Board to decide whether the daughters were representing the best interests of their mother by demanding life-sustaining medical treatment.

The Board decision on October 6 supported the decision of the medical team and ordered the daughters to consent to withholding all further medical treatment for their mother.

The daughters appealed the decision for the following reasons:
• Their mother had clearly told them that she wanted to receive all medical treatment until her natural death.
• The withholding of life-sustaining medical treatment would result in the death of their mother.
• Their mother had expressed that, as a Catholic, she believed in the sanctity of human life.
• They believed that their role was to respect their mother’s wishes.

The EPC intervened in the case for the following reasons:
• Healthcare teams and boards should not be permitted to withhold or withdraw medical treatment from a patient against their previously expressed wishes, when that decision will result in the person’s death.
• The previously expressed wishes of a person to receive life-sustaining medical treatment until their natural death should be respected.
• A presumption in favour of life should be recognized by the courts in order to protect vulnerable people.

On February 5, 2004, Justice Cullity released his judgment in the appeal of the Holland case. He decided to put aside the Board decision and preserve Mrs. Holland’s life. His decision was based on errors in law and errors in facts by the Board.

Before examining the judicial decision, I need to state one disappointment that we experienced during the trial. During the lunch and recess breaks, it appeared to us that the lawyers for the doctor and the Attorney General seemed to be very social and appeared to be sharing strategy. This was concerning to us because we thought that the Attorney General should be representing their concerns and impartial to the facts of the case.

Errors in Law

Justice Cullity decided that the Board made an error in law when it decided that Mrs. Holland’s previously expressed wishes were too general to apply to her current condition.

Mrs. Holland’s previously expressed wishes were that she wanted all medical treatment, but the Board held that the doctor is only obligated to provide medical treatment that is specifically requested.

The Justice stated that the Board’s decision, which was supported by the Attorney General, created too high a burden of proof. He believed that her statement was not general but generally specific and, therefore, should apply to all circumstances.

Mrs. Holland had stated in her Power of Attorney for Personal Care that she wanted NO restrictions on her daughters for making decisions for her– therefore, she was trusting her daughters. The Judge thought that this represented a clear intent by Mrs. Holland.

The Justice also stated that even when a patient’s previously expressed wishes are general, those wishes can still apply to specific circumstances.

This is an important precedent because it is impossible to state in a Power of Attorney for Personal Care document almost every possible choice for medical treatment in almost every circumstance.

The Justice decided that the Board also made an error in law by deciding that Mrs. Holland’s religious values were not applicable to her medical treatment because her understanding of the Catholic faith may not accurately reflect Catholic beliefs.

The daughters stated that, as a Catholic, their mother believed in the sanctity of human life. Due to her faith, she wanted to receive all medical treatment until her natural death. She stated, “where there’s life there’s hope.”

The Board stated that because Catholic teaching did not obligate her to receive all medical treatment, her values didn’t apply to her circumstance.

The Justice said that the Board decision was an error in law because according to the statute, it did not matter what the Church believes, it only mattered what Mrs. Holland believed.

This statement is important because many people believe in the sanctity of human life without espousing specific Christian views. This will help protect many vulnerable people.

Errors in Facts

Justice Cullity found that the Board confused terminology when it assumed that because the daughters had agreed to no CPR, that their mother must have experienced cardiac arrest. They assumed that since she needed a ventilator, she must have had a respiratory arrest. These were factual errors. Mrs. Holland’s medical record shows that she had a healthy heart and she had never stopped breathing.

The Justice thought that these were significant errors because it may have caused the Board to believe that her health condition was significantly worse than it was.

The Judge stated that he could not assume by a standard of reasonableness that the Board would have made the same decision if they had properly understood Mrs. Holland’s medical condition. The Board stated that Mrs. Holland was knocking on death’s door.

Therefore due to errors in law and facts, Justice Cullity decided that the Board decision should be set aside. Due to errors in law and fact he also decided that he should not decide the constitutional and procedural questions that were contested in the case.

The Justice stated, “The Charter issues should, in my opinion, be left to be determined in subsequent cases in which the Board properly interpreted the statute and applied its provision to the facts before it in accordance with section 21.”

In other words, we won the case on technical grounds but didn’t achieve the precedents that we sought in his judgment.

We are happy that Mrs. Holland is now protected from death, and we recognize that the greater battle has just begun.

The total cost for the trial was $24,000. Please help the Euthanasia Prevention Coalition cover the costs of the trial by sending to the Euthanasia Prevention Coalition, Box 25033, London, Ontario N6C 6A8.

Alex Schadenberg is executive director of Euthanasia Prevention Coalition.