“Our Constitution is the Mirror to the Canadian Soul - it is hardened where it permits third parties to decide who shall live and who shall die.”

So began Hugh Scher, legal counsel for the Euthanasia Prevention Coalition in the court case File No 03-94/03 concerning Mrs. Joyce Holland on January 21, 2004, in Toronto, Ontario.

I was present for three of the three and one half days of Court deliberation in this case and before I give you my observations, I believe it would be helpful to quote Dr Hawryluck’s factum for your quick enlightenment on the Nature of the Appeal.

“This appeal will consider the provision or non-provision of medical treatments to Mrs. Holland, an 81 year old woman with severe Alzheimer’s disease and a number of significant ailments. These physical ailments include recurrent pneumonia, recurrent bacterial infections, and severe bedsores. She is incapable of making decisions regarding her health care. Those health care decisions fall to her daughters, Ms. Scardoni and Ms. Holland. They have insisted that all medical treatments be provided to Mrs. Holland, despite the medical team’s view that these treatments are not in Mrs. Holland’s best interests. Because of the appellants’ [Ms. Scardoni & Ms. Holland] insistence on these treatments despite the medical team’s concerns that were explained to the appellants, Dr. Hawryluck successfully sought an order of the Board requiring the appellants to consent to the withholding or withdrawing of life-sustaining treatments.”

Dr. Hawryluck and her team would maintain Mrs. Holland’s feeding tube, continue to treat her infections with antibiotics and provide suctioning of Mrs. Holland’s lungs in the internal medicine ward as permitted by the level of nursing support available.

What Dr. Hawryluck’s team would no longer provide was access to the Intensive Care Unit for “ventilatory (breathing) and ianotropic (blood pressure) support”- the medical team all agreed that Mrs. Holland had a non-existent chance of surviving CPR. (No evidence was provided that she would actually require it.) The provision of this medical assistance was considered “not in Mrs. Holland’s best interest given the significant burden and limited benefit of those treatments.”

What I saw and heard are encapsulated in the following few observations. Dear Mrs. Holland was in deteriorating mental and physical health, beloved by her family and cared for by a good medical team. Mrs. Holland had taken the time to make out a Power of Attorney for Personal Care after watching her husband’s progress living and then dying with Alzheimer’s disease. It was after this experience that she drew up her Power of Attorney naming her two daughters as her substitute decision makers.

All went well until the medical team decided to withhold certain treatments which had previously been provided to Mrs. Holland. This decision was contrary to the wishes of the decision makers who spoke for Mrs. Holland. The daughters quickly found themselves to be in conflict with Dr. Hawryluck, the medical team, and also the Board who backed Dr. Hawryluck’s decision. The daughters, now in conflict with the medical team, were deemed not to have the “best interests” of their mother at heart.

For the purposes of the Ontario law, if you find yourself in this position either as patient or substitute decision maker, then you find yourself with absolutely no voice. Yes, the Act has all the provisions to go through but bottom line is: as a patient or substitute decision maker, if you request treatment that the doctor does not want to provide - You lose! If on the other hand, you wish to forego treatment, it is all happy families!

The moral of the story is that we have been hood-winked– at least in Ontario– because when it comes to a conflict, the patient or substitute will never win. You will be placed “out of order” for not agreeing with the medical team!

I have no wish to demonize Dr. Hawryluck, her medical team, or the board, but everyone agreed that Mrs. Holland probably would have about one year to live. So why could the medical team not provide this ventilatory and ianotropic assistance for the short while Mrs. Holland has left?

The answer, sadly, in my view, is that a “quality of life” world view had been used against Joyce Holland. She is elderly, she is physically and mentally weak, whatever intervention made will only marginally improve this situation for Mrs. Holland, therefore, why do it? It is “futile”- or is it that Mrs. Holland is futile?

Geoff Cauchi LLB relates, “As described in American lawyer Wesley J. Smith’s remarkable essay entitled Our Discardable People, ‘Futile care’ theory has been an increasingly hot topic in biomedical ethics and medical journals and at seminars and professional forums.” “Futilitarians” as he calls them have “hewn a rough consensus that personal autonomy is limited to the right to say no to unwanted medical treatment, and that care deemed inappropriate by medical professionals can and should be denied to patients in the clinical setting, regardless of patient desires.”

Until recently, this development has occurred without drawing much attention from the mainstream and the general population. Canadians need to sit up and take notice of what is happening in our local hospitals and take appropriate action to protect their interests. As Smith writes, “...[F]utilitarians are not waiting for society to give its consent; they are surreptitiously implementing official futile care protocols in hospitals and medical associations’ ethical guidelines. Traditional access to end-of-life care is already being restricted and most people don’t even know it is happening.”

We have already had two cases in Canada: one concerning Herman Kraus in Montreal and the other, Andrew Sawatsky in Winnipeg. Mr. Kraus’s wishes were overruled by the medical team and Mr. Sawatsky’s wife had to go to court to remove a DNR (Do Not Resuscitate) bracelet that the medical team placed on her husband without her consent. Both these men are now dead. But Mrs. Joyce Holland’s family fight on for the right to equal treatment for their mother.

For now, Mrs. Holland is receiving full treatment as the judgment has found some technical problems with the board decision to withdraw treatment. We know there will be another appeal. We should be grateful to the Euthanasia Prevention Coalition for their intervention in this case and you will read a more extensive overview inside this newsletter (see Alex Schadenberg’s article, this page). I would encourage you all to consider whatever financial support you might offer to Alex Schadenberg and EPC. Their intervention in this case came at great financial cost to the organization.

The question really is, what cost do we put on a life? I believe this case, had it gone the other way, would have set a precedent for legalizing “passive” euthanasia in Canada.

LifeCanada/VieCanada will keep a watching brief on this case and will be vigilant across our country for similar situations. Please contact our office if you have any information which will help us bring this disturbing situation to light. - JJ