CASE COMMENTS
CHRONIQUES DE JURISPRUDENCE
Medically Assisted Death: Nancy B. v. Hbtel-Dieu de Qudbec
Bernard M. Dickens*
In Nancy B. v. H~tel-Dieu de Qubec, the
Quebec Superior Court held that a patient was
legally entitled to discontinue and decline
medical treatment when she found it unaccept-
able. The author discusses how this case is
consistent with several other decisions, yet
distinguishable from certain Canadian deci-
sions which contributed to its outcome.
Through an analysis of Criminal Code provi-
sions against homicide and on the duty to pre-
serve life, the doctrine of informed consent,
and related jurisprudence, the author argues
that the Nancy B. decision narrows the gap
between allowing a patient to suffer natural
death and medically assisting death. The au-
thor also raises issues associated with the
notion of medical futility. He concludes that
the Nancy B. case moves the discourse in med-
ical ethics and law towards the feminist “care-
based” paradigm and suggests that the careful-
ly-circumscribed judicial response was an
appropriate legal answer to the question of
how best to care for Nancy B.
Dans Nancy B. c. H6tel-Dieu de Qubec, la
Cour suprrieure du Qubec a ddcid6 qu’une
patiente pouvait l6galement refuser des soins
si elle les trouvait inacceptables. L’auteur ex-
plique que cette dfcision s’inscrit dans un cou-
rant jurisprudentiel drjh amorc6, mais qu’elle
se distingue d’autres jugements canadiens dont
elle s’inspire. L’auteur examine les disposi-
tions du Code criminel relatives a l’homicide
et au devoir de.prdserver la vie, la doctrine du
consentement 6clair6 et la jurisprudence, et en
arrive i la conclusion que l’affaire Nancy B.
r6duit l’6cart entre le fait de permettre A un
patient de mourir naturellement et le fait de
l’aider A mourir par des moyens mrdicaux. Il
examine 6galement la notion de futilit6 mrdi-
cale. En tenninant, l’auteur dit que l’affaire
Nancy B. constitue un pas vers une approche
frministe bas~e sur l’efficacit6 des soins et que
la solution consciencieuse du juge dans cette
affaire reprsente une rponse juridique appro-
pride hL la situation de Nancy B.
* Ph.D., LL.D., Professor of Law, Faculty of Law, Faculty of Medicine, Centre of Criminology
and Centre for Bioethics, University of Toronto.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.J 1053
Mode de r~f~rence: (1993) 38 R.D. McGill 1053
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McGILL LAW JOURNAL
[Vol. 38
Synopsis
The Facts
Introduction
I.
H. The Law and the Judgment
II. Reasoning of the Court
IV. Analysis of the Judgment
V. Wider Aspects of the Case
Introduction
There is a sense in which Nancy B. v. H6tel-Dieu de Quibec’ is an unre-
markable decision that is consistent with several others. Justice Dufour of the
Quebec Superior Court held that a patient was legally entitled to discontinue
and decline the medical treatment she was offered when she found it unaccept-
able. The fact that national news media proclaimed the judgment “a precedent”
is explained less by its inherent significance than by their lack of understanding
of what in law constitutes precedent.’In another sense the case may mark a sig-
nificant turning point in Canadian law, however, and form an important building
block in a new structure of jurisprudence on medical and hospital care of both
non-terminal and terminal patients, particularly in light of the subsequent Rodri-
guez decision of the British Columbia Court of Appeal that the Supreme Court
of Canada upheld by a five to four majority in September 1993.2
The Nancy B. and Rodriguez cases are not simply dissimilar but the dia-
metrical reverse of each other. Nancy B. was surviving by means of artificial
life support when her case arose, and wanted to be let die naturally. Sue Rodri-
guez was living naturally at the time of her application, anticipated dying nat-
urally in a condition she feared, and sought artificial intervention in order to
die in conditions and at a time of her choice. The cases relate to each other in
that both applicants wanted to control the circumstances of their deaths, and
to be spared indignity and helplessness. The decisions contribute to an emerg-
ing perception of how far Canadian courts will go to accommodate physician-
assisted death.
1[1992] R.J.Q. 361, 86 D.L.R. (4th) 385 (Sup. Ct.) [hereinafter Nancy B. cited to D.L.R. (trans-
lation from the original French)].
2Rodriguez v. British Columbia (A.G.) (1993), 76 B.C.L.R. (2d) 145, 79 C.C.C. (3d) I (C.A.),
aff’d (30 September 1993), Doc. 23476 (S.C.C.) [hereinafter Rodriguez cited to C.C.C.].
1993]
CASE COMMENTS
1055
The January 1992 judgment in Nancy B. is like, but also distinguishable
from, other Canadian decisions that contributed to its outcome. In Malette v.
Shulman3 in May 1991, the Ontario Court of Appeal had held that a patient was.
legally entitled to decline a form of treatment she found unacceptable, even
when the predicted outcome of her refusal was death. Mrs. Malette was awarded
$20,000 in damages for battery when the defendant doctor took what he
believed was a life-preserving initiative. In the Astaforoff case,4 the British
Columbia Court of Appeal held that a prison inmate could be allowed to con-
tinue a hunger-strike to the point of death. The Court found that, because the
hunger-striker was not a free person, force-feeding would be lawful if it were
to be imposed, but that it was not mandatory. The prisoner subsequently
resumed her hunger-strike, and died. Nancy B. differs from both of these cases
in that the plaintiff in the former wanted to die, whereas Mrs. Malette, a Jeho-
vah’s Witness, did not want to die but was willing to risk death rather than be
transfused with blood, and Mrs. Astaforoff was also willing to risk death but did
not necessarily wish to die. Nevertheless, in each of these cases the Courts
rejected a life-at-any-cost approach, and recognized individuals’ legal rights to
set limits to life-preserving interventions, even though they were not necessarily
terminally ill.
I. The Facts
Nancy B. was a woman, aged 25, who by late 1991 had suffered for two
and a half years from Guillain-Barr6 syndrome, a disabling neurological disor-
der. At onset of the condition the prognosis is not unfavourable, and patients are
usually put on mechanical respiratory support pending improvement. Unfortu-
nately, Nancy B. did not improve, and in January 1991 she was informed that
her condition was irreversible. Her respiratory muscles had atrophied, and
degeneration of the motor nerves left her tied to her hospital bed, entirely
dependent for survival on mechanical ventilation by intubation. Medical treat-
ment had prolonged her life well beyond her capacity for natural survival.
In the months following her January 1991 diagnosis, Nancy B. determined
that she was unwilling to survive in her intubated, dependent existence. She ini-
tiated two hunger strikes to make this point, but ended them voluntarily. It was
not illness caused by the Guillain-Barr6 syndrome that caused her suffering, but
her immobile confinement in a bed she could never leave. As the judge
observed, “[wihat Nancy B. is seeking … is that the respiratory support treat-
ment being given her cease so that nature may take its course; that she be freed
from slavery to a machine as her life depends upon it. In order to do this, as she
is unable to do it herself, she needs the help of a third person.”‘ She was not
diagnosable as clinically depressed, but was distressed that life could afford her
nothing more than limited head movement, and utter dependency for comfort on
others and a machine.
3(1990), 72 O.R. (2d) 417, 67 D.L.R. (4th) 321 (C.A.) [hereinafter Malette cited to O.R.].
4British Columbia (A.G.) v. Astaforoff (1983), [1984] 6 W.W.R. 385, 6 C.C.C. (3d) 498
(B.C.C.A.) [hereinafter Astaforoff].
5Nancy B., supra note 1 at 392.
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Nancy B.’s intellectual faculties were intact, and she was lucid and logical
in expression of her wish to be disconnected from the mechanical respirator. She
knew that the consequence would be that she would die in a very short time
since, being unable to breathe without artificial support, she would suffocate.
Evidence from a range of medical, psychiatric, nursing and social work profes-
sionals confirmed her mental health and consistent wish that her respirator be
disconnected. Her mother said that her family had come to accept her wish, and
the Quebec Superior Court judge who himself attended her in hospital found
that Nancy B.’s preference that artificial respiration be discontinued was “real
and enlightened.”6
Since anticipated death would be by suffocation, the issue was raised of
whether Nancy B.’s attending physician, Dr. Danible Marceau, would have a
role preparing her for the consequence of withdrawal of artificial ventilation.7
The options included inducing deep sleep so that the patient would be spared
the experience and distress of suffocation, but would die in her induced sleep.
H. The Law and the Judgment
Nancy B. invoked her right to decline medical treatment. Article 19 Civil
Code of Lower Canada (“C.C.L.C.”) provides that:
The human person is inviolable.
No one may cause harm to the person of another without his consent or with-
out being authorized by law to do so.
On June 22, 1989, curiously coinciding with the time Nancy B. suffered onset
of her illness, article 19.1 C.C.L.C. was added, which provides:
Where the person concerned is unable to consent to or refuse care, a person
No person may be made to undergo care of any nature, whether for exami-
nation, specimen taking, removal of tissue, treatment or any other act, except with
his consent.
authorized by law or by mandate shall replace him.8
The Code of Ethics of Physicians9 provides in section 2.03.28 that:
Except in emergency, a physician must, before undertaking an investigation, treat-
ment or research, obtain informed consent from the patient or his representative
or any persons whose consent may be required by the law.
61bid. at 388.
7Medically, a contrast may be drawn that a physician “ventilates” a patient artificially, and the
patient undertakes “respiration” artificially. Here, reference will be made interchangeably to arti-
ficial or mechanical respiration and to artificial or mechanical ventilation.
8See also the new Civil Code of Qudbec, S.Q. 1991, c. 64 (coming into force 1 January 1994),
articles 10 and 11 of which read:
10. Every person is inviolable and is entitled to the integrity of his person.
Except in cases provided for by law, no one may interfere with his person with-
out his free and enlightened consent.
11. 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 con-
sent.
If the person concerned is incapable of giving or refusing his consent to care,
a person authorized by law or by mandate given in anticipation of his incapacity
may do so in his place.
9R.R.Q. 1981, c. M-9, r. 4.
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CHRONIQUES DE JURISPRUDENCE
1057
Dufour J. noted the evolution of Canadian law regarding the doctrine of
informed consent in Hopp v. Leppl and Reibl v. Hughes,” and found that: “The
logical corollary of this doctrine of informed consent is that the patient gener-
ally has the right not to consent, that is the right to refuse treatment and to ask
that it cease where it has already been begun.”‘ 2 The question therefore had to
be addressed of whether this right recognized in the civil law of Quebec is abso-
lute, or is limited by the federal criminal law.
The Criminal Code” opens with the general principle expressed in section
14 that:
No person is entitled to consent to have death inflicted on him, and such consent
does not affect the criminal responsibility of any person by whom death may be
inflicted on the person by whom consent is given.
Under the heading of Duties Tending to Preservation of Life in Part VIII of the
Criminal Code, section 215 provides that:
(1) Every one is under a legal duty …
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of … illness … to withdraw himself from that
charge, and
(ii) is unable to provide himself with necessaries of life.
(2) Every one commits an offence who, being under a legal duty within the mean-
ing of subsection (1), fails without lawful excuse, the proof of which lies on
him, to perform that duty, if …
(b) with respect to a duty imposed by paragraph l(c), the failure to perform
the duty endangers the life of the person to whom the duty is owed …
Section 216 provides that:
Every one who undertakes to administer surgical or medical treatment to another
person or to do any other lawful act that may endanger the life of another person
is, except in cases of necessity, under a legal duty to have and to use reasonable
knowledge, skill and care in so doing.
The Court emphasized the dependency on section 216 of section 217,”4 the latter
providing that: “Every one who undertakes to do an act is under a legal duty to
do it if an omission to do the act is or may be dangerous to life.” Section 219
defines criminal negligence, in the terms that:
(1) Every one 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.
(2) For the purposes of this section, “duty” means a duty imposed by law.
Section 220 makes criminal negligence that causes death to another person
punishable on indictment with up to life imprisonment. Attempted suicide was
decriminalized in 1972,”5 but section 241 provides that:
I0[1980] 2 S.C.R. 192, 112 D.L.R. (3d) 67.
“[1980] 1 S.C.R. 880, 114 D.L.R. (3d) 1.
12Nancy B., supra note 1 at 390.
13R.S.C. 1985, c. C-46.
14Nancy B., supra note 1 at 393.
15g.C. 1970-71-72, c. 13, s. 16.
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Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide, whether suicide ensues or not,
is guilty of an indictable offence and liable to imprisonment for a term not exceed-
ing fourteen years.
The act of killing another constitutes homicide, in particular murder or
manslaughter, under section 222, which provides that:
(1) A person commits homicide when, directly or indirectly, by any means, he
causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human
being,
(a) by means of an unlawful act,
(b) by criminal negligence …
In light of such Criminal Code provisions, 6 Dufour J. posed himself the
questions: “Can the conduct of a physician who stops the respiratory support
treatment of his patient at the freely given and informed request of the patient,
and so that nature may take its course, be characterized as unreasonable? Or
does such conduct denote wanton and reckless disregard?”‘ 7 Dufour J. answered
both questions, “I do not believe so.”‘”
The resulting judgment was that, on expiration of the time for appeal from
the judgment, the Court:
PERMITS Dr. Dani~le Marceau, the plaintiff’s attending physician, to STOP the
respiratory support treatment being given to the latter, when she so desires; her
consent must however be checked once again before any act in this regard is done;
PERMITS Dr. Dani~le Marceau to request from the defendant hospital, the H6tel-
Dieu de Quebec, the necessary assistance in circumstances such as these, so that
everything can take place in a manner respecting the dignity of the plaintiff. 19
III. Reasoning of the Court
Dufour J. found that the circumstances of Nancy B.’s proposed death
would constitute neither homicide nor suicide, but rather natural death. She had
survived by virtue only of artificial respiration and, while this might prolong her
survival for years, it would not improve her medical condition nor her health,
which in the Constitution of the World Health Organization, to which Canada
subscribes, is analysed as “a state of complete physical, mental and social well-
being and not merely the absence of disease or infirmity.” Without artificial life-
support, she would succumb to her natural fate, not to suicide nor to medically-
16See also section 45, protecting from criminal liability every one performing a surgical oper-
ation on any person for that person’s benefit if in the circumstances it is reasonable to perform the
operation, and it is performed with reasonable care and skill.
7Nancy B., supra note 1 at 394.
181bid.
19Ibid. at 395.
19931
CASE COMMENTS
1059
induced death. Dufour J. cited the extremely influential New Jersey Supreme
Court case of Re Conroy to the effect that:
declining life-sustaining medical treatment may not properly be viewed as an
attempt to commit suicide. Refusing medical intervention merely allows the dis-
ease to take its natural course; if death were eventually to occur, it would be the
result,
rimarily, of the underlying disease, and not the result of a self-inflicted
injury.2
This statement of principle is significant because in the case of Nancy B.,
death was anticipated to occur not “eventually” but within minutes, so that there
would be an appearance of immediate cause and effect between her requested
removal from artificial respiration and her death. Nevertheless, death would
result from the patient’s inability to breathe spontaneously.
Similarly, Dufour J. found that Criminal Code provisions against homicide
and on the duty to preserve life would not be offended by termination of arti-
ficial respiration leading to death. He observed that: “Sections 222 to 241 of the
Criminal Code deal with different forms of homicide … [T]he person who will
have to stop Nancy B.’s respiratory support treatment in order to allow nature
to take its course, will not in any manner commit the crimes prohibited by these
sections. The same goes for s. 241, aiding suicide. 2 1
In finding that the patient’s withholding of consent limited duties to her
under the Criminal Code and did not constitute her consent to the infliction of
death,’ the judge approved and adopted the reasoning proposed by counsel rep-
resenting the Attomey-General of Quebec. He had submitted that this broad inter-
pretation of the Criminal Code reflected coherence and logic between sections
222 to 241 and the Civil Code of Lower Canada provisions on individual auton-
omy and individuals’ rights to decline and discontinue unwanted medical treat-
ment. Accordingly, the judge found no conflict between the power of patients to
control their medical care and physicians’ and others’ duties under the Criminal
Code to sustain human life. The objective and impersonal thrust of the Criminal
Code is refined and fine-tuned by provincial law on individuals’ consent.
The abstract and necessarily prospective application of the Criminal Code
is brought to the individual and immediate level of human application by the
courts when they are presented with the facts of actual cases. Dufour J. cited
Gonthier J. in the Supreme Court of Canada in R. v. Jobidon” observing that
Parliament cannot be taken to intend absurd results such as conflicts or compe-
tition between laws and contradictions to follow from legislation. Parliament
must be taken to intend the courts to explain the contents of legislation cohe-
sively and coherently in the light of subsequent litigation, by bringing the law
down from the high plane of general principle expressed in legislation to mean-
ings applicable to the proven facts of specific real instances. Gonthier J. was
approved by Dufour I. in finding that:
20bid. at 392. Dufour J. refers to Re Conroy, 486 A.2d 1209 at 1224 (N.J.S.C. 1985).
21Nancy B., ibid. at 394.
22See Criminal Code, s. 14 at text accompanying note 13.
23[1991] 2 S.C.R. 714 at 744, 66 C.C.C. (3d) 454 [hereinafter Jobidon cited to S.C.R.].
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Policy-based limits are almost always the product of a balancing of individual
autonomy (the freedom to choose to have force intentionally applied to oneself)
and some larger societal interest. That balancing may be better performed in the
light of actual situations, rather than in the abstract, as Parliament would be com-
pelled to do.24
The Rodriguez case required the Supreme Court again to undertake this task.
IV. Analysis of the Judgment
In Malette,25 the Ontario Court of Appeal upheld an award of damages
for battery notwithstanding the observation of the trial judge that the imposed
blood transfusion that the patient was legally entitled to decline may have
saved her life.26 Both trial and appeal courts accepted that the defendant phy-
sician would have incurred no legal liability had the patient’s refusal of trans-
fusion been respected and resulted in her death.27 Similarly, Mrs. Mary Asta-
foroff did die when she was not force-fed following her resumption of a
hunger-strike when she was reimprisoned, and no question arose of her guar-
dians’ legal liability. The reasoning of Dufour J. in Nancy B. fits comfortably
into this setting, which, in light of extensive compatible United States case-
law going back to the case of Karen Quinlan29 and subsequent judgments in
England” and, for instance, New Zealand,3 may now be described as the con-
sensus reached 2 in Common law countries. Quebec’s Civil law tradition was
interpreted consistently with the Common law through the significance
Dufour J. gave to Supreme Court of Canada decisions on appeal from Alberta
and Ontario respectively. 33
Since the death of Nancy B. was found to be neither suicide nor homicide,
the case does not contribute directly to the increasingly sympathetic literature
and understanding on physician-assisted suicide and compassionate homicide,
better known as mercy-killing or euthanasia. The former has been opposed’ and
retains negative connotations associated with the controversy surrounding Dr.
Jack Kevorkian’s “suicide machine,”35 but in contrast is the wide legal, medical
and ethical acceptance of the conduct Dr. Timothy Quill disclosed in his cele-
24Nancy B., supra note 1 at 393. Dufour J. refers to Jobidon, ibid. at 744.
25Malette, supra note 3.
26Malette v. Shulman (1987), 63 O.R. (2d) 243 at 274, 47 D.L.R. (4th) 18 (H.C.) [hereinafter
Malette].
note 20.
27Malette, supra note 3 at 434.
28Astaforoff, supra note 4.
29See In the Matter of Karen Quinlan, 355 A.2d 647 (N.LS.C. 1976). See also Re Conroy, supra
30Airedale National Health Service Trust v. Bland, [1993] 1 All E.R. 821 at 858 (H.L.).
3tAuckland Area Health Board v. A.-G., [1993] 1 N.Z.L.R. 235 (H.C.) [hereinafter Auckland
32See A. Meisel, “The Legal Consensus About Forgoing Life-Sustaining Treatments: Its Status
33See Hopp v. Lepp, supra note 10; Reibl v. Hughes, supra note 11.
34See P.A. Singer & M. Siegler, “Euthanasia – A Critique” (1990) 322 New England J. Med-
and Prospects” (1992) 2 Kennedy Institute of Ethics J. 309.
Area Health Board].
icine 1881.
35See J. Persels, “Forcing the Issue of Physician-Assisted Suicide: Impact of the Kevorkian Case
on the Euthanasia Debate” (1993) 14 L Legal Medicine 93.
1993]
CHRONIQUES DE JURISPRUDENCE
brated description36 of how he assisted a patient to end her life.37 Sue Rodriguez
similarly persuaded Chief Justice McEachem of British Columbia that assistance
in committing suicide could be rendered lawfully in Canada, under the conditions
he identified in his dissenting judgment in the British Columbia Court of
Appeal. 8 Authorizing physicians to take steps to end the lives of competent
patients who request such steps has less support,39 but approved and lawful meth-
ods of palliative care may shorten life as a known secondary effect,’ and discus-
sion of medically-induced death as accepted in The Netherlands4″ is now leading
to non-judgmental questioning42 and issues of process in North America.43 The
significance of the Nancy B. decision to this discussion is that it narrows the gap
between letting a patient suffer natural death and assisting suicide. It fits within
a category of lawful, medically assisted natural death, in that it authorizes a phy-
sician to prepare a patient for death that continuation of medical treatment could
postpone for years and perhaps decades. Nancy B. could not have survived with-
out artificial respiration, but she was not dying nor in a terminal stage while
receiving such support. Once it was withdrawn, however, she would die of suf-
focation in a few minutes of acute distress. To avoid sensational publicity, neither
Nancy B. nor her hospital or physician discussed circumstances of her death or
management of those circumstances. In his judgment, Dufour J. simply permitted
the named attending physician to stop respiratory support treatment and to
request the hospital to provide “the necessary assistance in circumstances such as
these.”‘ The informed speculation is that the physician would induce deep sleep
or coma in the patient and then remove the ventilation tube that achieved respi-
ration, so that the patient would die naturally in her sleep, without distress. The
humanity of permitting peaceful death is obvious.
Nancy B. was held to have a right to die, in that neither a physician nor
a hospital could treat her without her consent, but she was not necessarily held
to have a right to peaceful death. She could refuse all treatment by legal refusal
to be a patient, but the judge did not necessarily hold that she had a right as a
patient to be eased into death in a particular way. Legally binding rules of good
medical, nursing and associated practice might impose the duties that would
constitute patients’ rights to humane treatment and dignified, minimally painful
deaths. There is medical resistance, however, to patients’ rights to die and par-
ticularly to assisted suicide, for fear, perhaps, that legal recognition of such a
36T.E. Quill, “Death and Dignity – A Case of Individualized Decision Making” (1991) 324
New England J. Medicine 691.
37See P.A. Ubel, “Assisted Suicide and the Case of Dr. Quill and Diane” (1993) 8 Issues in L.
& Medicine 487.
38Rodriguez, supra note 2 at 24-25, and Lamer C.J.C. in the Supreme Court of Canada.
39See W. Gaylin et al., “Doctors Must Not Kilr’ (1988) 259 J. American Medical Association
2139.
4’D.G. Casswell, “Rejecting Criminal Liability for Life-Shortening Palliative Care” (1990) 6 J.
Contemp. Health L. & Pol’y 127.
Netherlands?” (1992) 20 L., Medicine & Health Care 133.
41M. Battin, “Voluntary Euthanasia and the Risks of Abuse: Can We Learn Anything from the
42F.G. Miller, “Is Active Killing of Patients Always Wrong?” (1991) 2 J. Clinical Ethics 130.
43G.I. Benrubi, “Euthanasia – The Need for Procedural Safeguards” (1992) 326 New England
J. Medicine 197.
“Nancy B., supra note 1 at 395.
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McGILL LAW JOURNAL
[Vol. 38
right would result in reciprocal legal duties on physicians to end patients’ lives
or collaborate in suicide in accordance with patients’ wishes or directions.
Dufour J. held back from finding that Nancy B. had a legal right to face
natural death in specified comfort. She sued for an injunction to require with-
drawal of treatment, but the judge did not grant an injunction. He gave a judg-
ment that simply “permits” the physician to stop respiration, and to “request”
the hospital’s assistance. Accordingly, the physician’s initiative and the hospi-
tal’s collaboration would be lawful, but not in themselves mandatory by virtue
of the judgment. In light of Malette, however, one may speculate that Nancy B.
was entitled to a mandatory injunction or comparable order that intubation be
withdrawn in a particular way designed to maximize her comfort and protect her
dignity, of which comfort may be a major component. This might not go beyond
the significant finding in Nancy B. of physicians’ powers to assist patients’ nat-
ural deaths, not as secondary effects of palliative care45 but as deliberate life-
terminating alternatives to palliative care chosen by patients and implemented
through physicians’ collaboration.
The reasoning of Dufour J. that Nancy B.’s death would be natural and not
amount to suicide or homicide has been commented to be “patently artificial,” 46
not as criticism of the judge but in recognition of the problem he faced due to
the over-inclusive language of the Criminal Code. The commentators propose
that
it is difficult to see how the disconnection of the respirator does not fall within the
case law definition of “cause” or even of “unlawful act.” An example clarifies
both the artificiality and the danger of claiming that disconnection of the respirator
would not cause death. Imagine a patient similar in every respect to Nancy B.
except that she wishes to live, but her physician disconnects her respirator. Surely
no one would deny that the patient’s death was caused by the disconnection of the
respirator.47
The Criminal Code does indeed warrant reconsideration in this area, and
proposals on recodification of the criminal law include a narrowing of the
scope of life-shortening medical treatment that would attract punishment.”
Nevertheless, the example alleged to clarify artificiality and danger offered
above by critics of the judgment is not persuasive. The conclusion that, if
Nancy B.’s physician would not be criminally liable for causing her death by
disconnecting the respirator with her consent, as Dufour J. held, then a person
disconnecting the respirator without her consent would also not be legally lia-
ble, is incorrect.
The consensus in Common law countries that terminating artificial life-
support with appropriate consent is lawful, raising no liability for causing death,
4 5See Casswell, supra note 40.
46A. Fish & P.A. Singer, “Nancy B.: The Criminal Code and Decisions to Forgo Life-Sustaining
Treatment” (1992) 147 Can. Medical Association L 637 at 639.
47Ibid.
48See Law Reform Commission of Canada, Recodifying Criminal Law (Report 31, revised and
enlarged edition of Report 30) (Ottawa: Law Reform Commission of Canada, 1987); Casswell,
supra note 40 at 128.
1993]
CASE COMMENTS
1063
with which the Nancy B. judgment is consistent, has been noted above.49 Writ-
ing of the United States, Alan Meisel has observed that:
Since the Quinlan case ushered in this era of right-to-die litigation, close to 75
similar cases –
the precise number depends on what one considers a “right-to-die
case” to be – have been decided in the state appellate courts or the federal district
courts in 21 states and the District of Columbia. From these cases, from an even
larger body of unreported trial court cases,5 0 and from legislation enacted in almost
every state, a consensus has gradually emerged in law, medicine, and public opin-
ion that termination of life support is. legitimate under certain circumstances. 5
i
This wide consensus of cases, reinforced by decisions of superior courts
elsewhere, finds nothing strained in concluding that physicians who withdraw
artificial or mechanical life-supports with legal consent do not face legal liabil-
ity for causing patients’ deaths. Many of these U.S. cases involved prospective
withdrawal of artificial feeding, but Dufour J. found that placing a person on a
respirator “is a technique of the same nature as that of feeding a patient. One
cannot therefore make distinctions between artificial feeding and other essential
life-sustaining techniques.”52
Scientific or mechanical tests of causation do not necessarily coincide with
legal tests.53 Although if death is’ inflicted on a person that person’s consent is
not exculpatory 4 absence of consent may make a person criminally liable for
causing death when consent would exclude legal causation. In law, defendants
may be held liable for causing what they have failed to prevent, when they have
a duty of prevention. For instance, physicians have been held liable for causing
pregnancy in patients whose sterilizations they have undertaken negligently.”
There is no duty to prevent the death of a patient such as Nancy B. who
wishes to die, and disconnection of a respirator for that purpose is not a legal
cause of death. When a patient wants the respirator to remain connected, how-
ever, there may be a duty to maintain it. Disconnecting the machine without the
patient’s consent violates that duty, and constitutes criminal negligence. The
duty to provide care may be found under sections 215, 216, 217 and, for
instance, section 219 of the Criminal Code, setting the scene for liability at least
for manslaughter, or under section 220 for criminal negligence causing death.
Accordingly, a physician who disconnects a respirator with the consent of a
patient such as Nancy B. does not in law cause the death that follows, but a per-
son who disconnects a respirator without consent is convictable for causing
death. Death is caused not by disconnection of the respirator per se, but by
49See Meisel, supra note 32.
501t has been estimated in the U.S. that between 2,900 and 7,000 trial court cases on forgoing
medical treatment were heard between 1975 and 1989; T.L. Hafemeister, I. Keilitz & S.M. Banks,
“The Judicial Role in Life-Sustaining Medical Treatment Decisions” (1991) 7 Issues in L. & Med-
icine 53.
51Supra note 32 at 309-10.
52Nancy B., supra note 1 at 391.
53D. Danner & E.L. Sagall, “Medicolegal Causation: A Source of Professional Misunderstand-
ing” (1977) 3 Amer. J. L. & Medicine 303.
54Criminal Code, s. 14, at text accompanying note 13.
55See e.g. Cataford v. Moreau (1978), 7 C.C.L.T. 214, 114 D.L.R. (3d) 585 (Que. Sup. Ct.). See
also Dendaas (Tylor) v. Yackel, [1980] 5 W.W.R. 272, 109 D.L.R. (3d) 455 (B.C.S.C.).
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breach of the duty to maintain connection until the patient consents to discon-
nection.
The principles of legal causation that show potential legal liability of a per-
son who disconnects a patient’s respirator without consent answer the charge
that the judge’s reasoning in Nancy B. is dangerous. The principles may appear
patently artificial from a purely scientific or mechanical perspective of relating
cause to effect, but they are well established in law. The criminal courts recog-
nize, for instance, that there can be more than a single cause of death. 6 Com-
parable principles are applied outside the law. The medical equivalent exists in
how physicians determine causes of death* for purposes of death certification.
Although Nancy B. was claiming to exercise powers of the most profound
significance, she did not invoke the Canadian Charter of Rights and Free-
doms.” Public hospitals are not usually liable under the Charter since they are
not a branch of government,58 so the defendant hospital could not itself have
been in violation, but Nancy B. might have claimed that any restrictions on her
pursuit of her goal presented by the Criminal Code violated her Charter rights.
She may have been reluctant to take joint proceedings against the federal or pro-
vincial government, such as for a declaration that any Criminal Code restric-
tions on her right to natural death are inoperative, because this would have wid-
ened her action, increased her costs and made an appeal against her success at
trial more likely. In the event, the judge, of his own motion, made the Attorney-
General of Quebec a party. Counsel for the provincial Attorney-General pre-
sented submissions of law that happened to be sympathetic to Nancy B.’s claim,
and were influential in her success. His submissions were that Criminal Code
provisions did not restrict Nancy B. since the Code was to be read compatibly
with Jher freedom under the C.C.L.C. to reject medical treatment she no longer
wanted in order to succumb to natural death. By this reading, the Criminal Code
did not violate her freedom of action, and the Attorney-General was not called
on to take a position on the status of Criminal Code provisions on the preser-
vation of life under the Charter. The submission by Nancy B. and the Attorney-
General that her purpose was not in violation of the Criminal Code, since it
involved neither suicide nor homicide, made it unnecessary to assess whether
the Criminal Code was in violation of the Charter. This claim is relevant, in
contrast, to the claim of Sue Rodriguez that she was entitled to assisted suicide.
V. Wider Aspects of the Case
When Nancy B. sued the H6tel-Dieu de Quebec for a permanent injunction
restraining any administration of artificial respiration after she requested its
removal, the hospital entered an appearance but did not file a defence. After
obtaining a certificate attesting that the defendant had failed to plead to the
action, the plaintiff proceeded ex parte. She could not simply obtain judgment
56See R. v. Kitching and Adams (1976), 32 C.C.C. (2d) 159 at 175, [1976] 6 W.W.R. 697 (Man.
C.A.).
57Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
58Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, 76 D.L.R. (4th) 700.
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CHRONIQUES DE JURISPRUDENCE
1065
in default of defence because she sought an equitable remedy that was therefore
discretionary and required her to prove her conscientious conduct and entitle-
ment. At the hearing, the defendant and other parties, namely her attending phy-
sician and the provincial Attorney-General, were represented. The Attorney-
General intervened to present submissions of law that supported the legal basis
of the plaintiff’s claim. Although the defendant hospital, the attending physician
and the Attorney-General had interests in the criminal law being upheld and
Nancy B.’s rights under provincial law being defined and respected, none actu-
ally opposed Nancy B.’s legal argument, or subjected it to vigorous scrutiny.
Thus, the occasion was not taken, nor compelled, to test whether the treatment
Nancy B. had received and might continue to receive was either necessary to
preserve life, or medically futile.
Inadequate disclosure of information for consent to treatment entitles a
patient to sue for negligence, 9 but treatment that lacks or exceeds consent per-
mits a civil suit for battery’ and criminal prosecution for assault or aggravated
assault.” However, the legal excuse of necessity, particularly in its historic form
of necessity to save human life, is available as a defence to resist charges of vio-
lation of criminal law62 and of civil liability.63 Necessity was not pleaded to the
complaint of battery in Malette, but in 1975 was recognized as an available
defence to criminal abortion.’ At that time, this was an offence punishable with
up to life imprisonment,65 so presumably the defence is available to a lesser
charge of criminal assault, which in its most aggravated form is punishable with
imprisonment for a term not exceeding fourteen years.66 In criminal law,
demanding tests have been set before necessity can be accepted as a legal
excuse for unlawful conduct, including “moral involuntariness” of the wrongful
action and lack of a reasonable legal alternative.67
Courts in such cases as Astaforoff, Malette and Nancy B. itself have
rejected a vitalist or “life-at-any-cost” philosophy, and have accepted the legal
option of mentally competent free individuals to risk preventable death rather
than be compelled to live under conditions they find objectionable. It may there-
fore be doubted that courts would accept an excuse that it was necessary to save
the life of a competent person who priorized other values above survival and
refused consent to life-sustaining treatments. Necessity requires an objective or
socially-supported ordering of priorities.6″ Legislative decriminalization of
attempted suicide69 suggests that society does not place a higher value on indi-
viduals’ survival than do competent individuals themselves, although the con-
59Reibl v. Hughes, supra note 11.
6Malette, supra note 3.
61Criminal Code, supra note 13, ss. 265-68.
62Perka v. R., [1984] 2 S.C.R. 233, 13 D.L.R. (4th) 1 [hereinafter Perka cited to S.C.R.].
63See e.g. A.M. Linden, Canadian Tort Law, 4th ed. (Toronto: Butterworths, 1988) at 75.
64Morgentaler v. R. (1975), [1976] 1 S.C.R. 616, 53 D.L.R. (3d) 161.
65See Criminal Code, supra note 13, s. 287(1) (in 1975, s. 251(1)).
661bid., s. 268(2).
67Perka, supra note 62 at 259, Dickson J. (as he then was).
68Ibid. at 260.
69See supra note 15.
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McGILL LAW JOURNAL
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cept of “rational suicide” has been accepted only in more recent times,70 and not
necessarily universally. The defence of necessity may not be successful to resist
applications such as Nancy B. made in order to be allowed not suicide, but nat-
ural death.
An argument that Nancy B. might have made, which ihe defendant hospi-
tal, her physician and the provincial Attorney-General showed no disposition to
deny, was that her continued treatment by artificial respiration was medically
futile, and therefore legally refusable. The concept of medical futility is legally
and ethically unshaped,7′ and most often raised regarding mentally incompetent
patients, particularly those in a persistent vegetative state. Their physicians, hos-
pitals or families seek legally secure grounds to discontinue treating them by
artificial or mechanical means, including withdrawal of artificial nutrition and
hydration, usually resulting in death from dehydration. The bioethically pio-
neering Hastings Center provided Guidelines in 1987 that defined “physiologic
futility” as applying to treatment that is “clearly futile in achieving its physio-
logical objective and so offering no physiologic benefit to. the patient.”’72 Nancy
B.’s artificial respiration would probably not satisfy this test of futility, since its
objective was to keep the patient alive and it achieved this objective. Nancy B.
considered this achievement non-beneficial on psychological and emotional
grounds rather than on physiological grounds.73
Although of relatively recent origin and still poorly defined, the claim of
medical futility is attracting skepticism when invoked by physicians to limit
treatment of patients, who tend to be the more severely disabled patients whose
care requires use of expensive resources or skills. It has been observed that:
The term “futility” allows the [medical) profession to medicalize a difficult per-
sonal, familial, and social decision. Once a decision is framed by the term “futil-
ity,” it provides a justification for physicians to either 1) override the wishes of the
patient, family, or other surrogates, or 2) make a non-treatment decision without
even obtaining informed consent by not discussing the unilateral decision with the
patient, family or surrogate at all. 74
Treatment may be considered futile when it will not achieve its objective of
improving the quality or duration of a patient’s life, when it will probably be
actually harmful to a patient, or when it employs scarce health care resources
that could serve apparently more needy patients or other patients more effec-
tively.7″ It has been observed in the United States that “[t]he current debate
about medical futility is one of the most important and contentious in medical
ethics,”76 and the same will probably become so, if it is not already so, in Can-
70See C.K. Smith, “What about Legalized Assisted Suicide?” (1993) 8 Issues in L. & Medicine
503.71R. Cranford & L. Gostin, “Futility: A Concept in Search of a Definition” (1992) 20 L. Med-
icine & Health Care 307.
72Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of
73See text accompanying note 5.
74Cranford & Gostin, supra note 71 at 308.
751bid.
76S.H. Miles, “Medical Futility” (1992) 20 L., Medicine & Health Care 310.
the Dying (Bloomington: Indiana University Press, 1987) at 32.
1993]
CASE COMMENTS
1067
ada, particularly under the impact of pressure on health care resources and of
institutional downsizing. It is of legal interest rather than significance that in the
most widely discussed modem legal case concerning care physicians proposed
to withhold as medically futile,77 a trial court in Minneapolis found the appro-
priate legal guardian of an 86-year-old patient in a persistent vegetative state to
be her husband who wanted her to receive mechanical life-support that her phy-
sicians considered not to be in her best interest. 78
Whether physicians have a legal duty to provide care they consider futile,
nonbeneficial or medically inappropriate, and whether patients or their families
can legally compel such care, competent patients can make legally binding deci-
sions that actual or proposed care is futile for them, and refuse it. It has been
seen that the decision in Nancy B. is consistent with the general finding that
competent patients have the right to refuse medical treatment of any kind, even
if the abatement of treatment will result in their death.79 Courts’ acceptance of
patients’ assessments that identified care is futile for them could reinforce the
concept that “futility” is relevant to patients’ views of their circumstances as
well as to physicians’ or hospitals’ ideas of appropriate uses of resources.
A New Zealand case in August 1992 involved an application by physicians
of a patient who also had an extreme case of. Guillain-Barr6 syndrome, but
whose brain was apparently irreversibly disengaged from his body, placing him
in suspended animation or the so-called “locked-in syndrome,” for a declaration
clarifying whether they would be guilty of homicide were they to withdraw the
artificial respiration that kept him alive.”0 Following a thorough review of the
law in New Zealand, England, the United States and Canada, including specific
reference to Nancy B., the court granted a declaration that, if his physicians con-
cluded that there was no reasonable possibility of the patient’s recovery from his
clinical condition and no therapeutic or medical benefit from continued main-
tenance of artificial respiration, and his wife consented on his behalf, deliberate
withdrawal of artificial ventilation would not constitute culpable homicide.
The judgment includes a relevant discussion, not undertaken in Nancy B.
or the British Columbia Court of Appeal in the Rodriguez case, of the appropri-
ateness of courts entertaining civil claims, for declarations, injunctions or the
like, involving rulings on the meaning, scope and application of criminal law.
Where Attorneys-General are involved on behalf of the Crown, this raises issues
of possible res judicata, perhaps more complex in Canada because of the pro-
secutorial capacities of provincial and federal Attorneys-General,81 and in any
77See R.E. Cranford, “Helga Wanglie’s Ventilator” (1991) 21:4 Hastings Center Report 23. The
case arose when the hospital went to court to have a third party appointed guardian of the patient
rather than her husband; Conservatorship of Wanglie, No. PX-91-283 (Minn., Hennepin Co. Dist.
Ct., 1 July 1991).
of Autonomy” (1993) 2 Cambridge Q. of Healthcare Ethics 161.
78See the discussion in D.H. Johnson, “Helga Wanglie Revisited: Medical Futility and the Limits
79See R.F. Weir, Abating Treatment with Critically Ill Patients: Ethical and Legal Limits to tile
Medical Prolongation of Life (Oxford: Oxford University Press, 1989).
5Auckland Area Health Board, supra note 31.
51See P.C. Stenning, Appearing for the Crown (Cowansville, Que.: Brown Legal Pubs., 1986)
at 165.
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event may affect prosecutorial discretion, even though rulings of law by civil
courts do not contribute to criminal law precedents or criminal stare decisis. It
has been noted that “[t]he criminal court would not be bound by the decision
[of the civil court]. In practical terms it would simply have the inevitable effect
of prejudicing the criminal trial one way or another.”82 Adverse effects on the
integrity of a subsequent criminal trial, and on the exercise of prosecutorial dis-
cretion by authorities charged with the just and non-discriminatory enforcement
of the criminal law, are matters that weigh in the balance against civil courts
accepting jurisdiction to rule on the consequences in criminal law of possible
future events. The reluctance of courts of law to issue prospective rulings even
within their conventional jurisdiction is based on sound experience.
Issues of the integrity of legal process, of uncertainty and certainty of
future events, and of the obligations of justice to those who act conscientiously
can also weigh, however, on the other side of the balance. If fear of criminal lia-
bility were to cause physicians to maintain invasive treatments over patients’
objections, they would be in peril of subsequent civil liability for battery and
criminal liability for assault, and their patients would be in peril both of denial
of their lawful preferences and of unlawful invasions of their bodies, integrity
and dignity. In cases such as Nancy B. where the facts are agreed among all par-
ties,83 and where the facts are scientifically or medically settled or future vari-
ations can be accommodated in the conditional terms of judicial orders or judg-
ments, as in the New Zealand case,” the balance of justice and convenience may
occasionally favour civil courts ruling on the status of prospective conduct
under criminal law. When individuals such as doctors are charged with the exer-
cise of difficult choices that affect important interests of others, and vulnerable
people seek to vindicate important rights without penalization of conscientious
caregivers, it is appropriate that civil courts should come to their aid, and offer
if only imperfect protection. As Thomas J. stated in Auckland Area Health
Board, “[tihe doctors are surely entitled to exchange the threat of the sword of
Damocles for the protection of the sword forever proffered in the outstretched
hand of justice.””
The New Zealand case is distinguishable from the overwhelming major-
ity in this area of litigation in that, exceptionally, it involved a man.86 Cases
from Karen Quinlan in 1976 through to Nancy B., including the Canadian
cases of Malette and Astaforoff, and now Rodriguez, and a plethora of U.S.
cases including Cruzan,87 Dinnerstein,8 8 Bouvia,89 O’Connor,” Colyer9′ and
82Per Lord Lane in Imperial Tobacco Ltd. v. Attorney-General, [1980] 1 All E.R. 866 at 884
(H.L.).
L., Medicine & Health Care 85.
83Supra note 1 at 387.
84Auckland Area Health Board, supra note 31 at 244.
5Ibid. at 242.
86See generally S.H. Miles & A. August, “Courts, Gender and ‘The Right to Die”‘ (1990) 18
87Cruzan v. Missouri Department of Health, 110 S. Ct. 2841 (1990).
881n re Dinnerstein, 380 N.E.2d 134 (Mass. App. Ct. 1978).
89Bouvia v. Superior Court, 225 Cal. Rptr. 297 (C.A. 1986).
901n re Westchester County Medical Center (O’Connor), 531 N.E.2d 607 (N.Y.C.A. 1988).
911n re Colyer, 660 P.2d 738 (Wash. S.C. 1983).
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CHRONIQUES DE JURISPRUDENCE
1069
Conroy,92 centred on women, as did publicity of the first recorded user of Dr.
Kevorkian’s “suicide machine,” Janet Adkins.93 The distinction has been rec-
orded in a review of many U.S. cases that:
The final state appellate court rulings ordered continuation of life-prolonging care
in two of 14 cases about profoundly ill, previously competent women who had not
authored living wills. No such order was made in eight similar cases involving
men. This difference is the result of an even more asymmetric gender-patterned
reasoning within the cases.94
The contrast is interpreted as based not on sex per se, but on gender. Sex
is biological, but gender is the social understanding of sexual difference. Male
gendered beings are regarded as strong, public, rational, material and capable of
taking responsibility for the preferences they exhibit, whereas female gendered
beings, including effeminate men, are weak, private, expressive, spiritual and in
need of protection against their own instincts. Masculine decisions are firmly
based and decisive, whereas feminine decisions are merely emotional, liable to
change ahd open to masculine, including judicial, better judgment. Canadian
courts have shown a somewhat finer sensitivity to respect female preferences
than have United States’ courts, in terminal treatment, abortion95 and other
areas.
The contrast has also been observed that “life-support dependent men are
seen as subjected to medical assault; women are seen as vulnerable to medical
neglect.”96 Canadian decisions in Astaforoff, Malette and Nancy B. do not con-
form with this observation, but may be more sympathetic to feminist analysis.97
Feminism embraces a wide range of orientations,9” but a common characteristic
is recognition of the significance of caring about and for others,99 an attribute
perhaps of the passive feminine function of nursing rather than of the active
masculine role of doctoring and giving “doctor’s orders.” In her essay address-
ing voluntary active euthanasia as an act not of assault but of care, Leslie
Bender writes that
because of our dominant, liberal paradigm premised on a society composed of
autonomous individuals who interact with others by choice out of self-interest, we
look for resolutions of problems about end-of-life medical care in an ethic of jus-
tice and rights … Our current analysis prevents people from aiding others to die
with dignity because we understand rights as barriers to interference by others,
rather than as enabling conditions … When applying our existing rules to the legal-
ity of physician assistance in the dying process, we may talk of “mercy seasoning
92Supra note 20.
93″Case Against ‘Dr. Death’ Dropped after MI Judge Throws Out Charge” (1991) 7 Medical
Ethics Advisor 13.
94Miles & August, supra note 86 at 85.
95R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385; Tremblay v. Daigle, [1989] 2
S.C.R. 530, 62 D.L.R. (4th) 634.
96Miles & August, supra note 86 at 87.
97L. Bender, “A Feminist Analysis of Physician-Assisted Dying and Voluntary Active Euthana-
sia” (1992) 59 Tennessee L.R. 519.
98S. Sherwin, No Longer Patient: Feminist Ethics and Health Care (Philadelphia: Temple Uni-
versity Press, 1992).
99N. Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Berkeley: Uni-
versity of California Press, 1984).
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,justice,” but I would prefer an understanding that speaks of “justice tempering
care.” We can change the substance of our normative discourse in medical ethics
and law by moving to a care-based paradigm.1
The judgment in Nancy B. moves us towards this paradigm. It is respectful
of Nancy B.’s choice of death, approves a process of death that cares for her
comfort and dignity, does not speak of a right to die, and shows care too for the
caregiver’s comfort and conscience, empowering without ordering the physician
to act. The physician’s prospective relationship to the patient is treated as giving
medical care rather than as potentially assaulting, failing to prolong life or kill-
ing. Care is permitted to be given that responds to the patient’s needs. Medical
assistance in dying provides a legal answer to the question of how best to care
for Nancy B.
‘Bender, supra note 97 at 534.
