The Right to Natural Death

The Right to Natural Death

Bernard M. Dickens*

I.

Introduction

This article is designed to address the legal control individuals
may exercise over the medical management of their own death. In
particular, it considers legal powers to prevent the use of aggressive
measures employing artificial means to postpone the natural death
of persons in terminal conditions.- Resisting the patient’s right to
decline death-postponing treatment is the physician’s power to
attempt to prolong life. Regard is therefore paid to the tension
between these competing interests.

Since the existence of individual human life is” the precondition
of enjoying individual human rights, the right to die may at first
appear anomalous in inventories of recognized and asserted rights.
A claim to act irrevocably to extinguish the potential for enjoying
other rights appears incongruous, not least in a life-affirming
culture where the preservation of human life is celebrated 2 Where
life is considered a divine gift or a communal responsibility, indi-
viduals may not be recognized to have rights of self-disposition,
other than in acts of self-sacrifice dedicated to others. Historically,
the common law, reflecting earlier feudal law, denied such claims
of individual self-determination, since persons were locked into
communal relations and duties incompatible with a right of uni-
lateral withdrawal. This finds vestigial expression in section 14 of
the Criminal Code,3 which provides that:

No person is entitled to consent to have death inflicted upon him, and
such consent does not affect the criminal responsibility of any person
by whom death may be inflicted upon the person by whom consent is
given.
As against this, however, the claim to individual autonomy is the
foundation upon which modem individual rights are built, so that
rights to reach independent decisions about how to live may be

* LL.B., LL.M., Ph.D., LL.D., of the Faculty of Law, University of Toronto.
‘From the perspective of general use of mechanical support of life, natural
death may appear premature; see generally Fama, Classification of Critically
Ill Patients: A Legal Examination (1980) 24 Saint Louis Univ. L.J. 541.

2 This is recognized in the tendency to use the expression “heroic measures”
synonymously with “aggressive measures” to describe medical attempts to
resist death.

3R.S.C. 1970, c. C-34.

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said to presuppose the right to decide whether or not to continue
to live. With this evolving perception, historical criminal prohibitions
against suicide were removed from the Criminal Code in 1972,4 al-
though counselling, procuring, aiding or abetting another’s suicide
remain punishable.5 Where suicide may be tolerated as a regrettable
private act, however, suicide as a public act of social or political
protest may be resisted. Government is not necessarily required to
remain passive before the prospect of demonstrative self-immolation
by fire or hunger strike,6 for instance, whether by commonly
motivated groups or by individuals. Similarly, private rejection of
reasonable life-saving measures on grounds of religious conviction,
notably refusal of blood-transfusion by Jehovah’s Witnesses, has
resulted in judicial authorization of treatment.7 Such refusal is not
suicidally motivated, of course, since it is inspired by the hope and
expectation of survival, perhaps by divine intervention.

Politically motivated death is, however, atypical in our society.
The issue to be addressed in representative medical practice is
whether and when a person may effectively decline medical treat-
ment or means of hospital management, when refusal is believed
to be likely to lead to a death which could be postponed by medical
intervention. The longing for natural death draws much of its force
from fears many people have of ending their lives being maintained
by mechanical life-supporting equipment in a condition of helpless
dependency and utter loss of personality and individuality.8 People
accustomed to exercising autonomy in life want -to keep control of
themselves in death, and to protect themselves against an abuse or
misapplication of medical technology. The catchphrase or slogan
“death with dignity” is often used, to contrast the feared indignity

– S. 225 was repealed by S.C. 1972, c. 13, s. 16.

See s. 224, which applies whether suicide ensues or not.

6 See Zellick, The Forcible Feeding of Prisoners: An Examination of the-
Legality of Enforced Therapy [1976] P.L. 153, considering the case of Leigh
v. Gladstone (1909) 26 T.L.R. 139 (K.B.).

7 See generally Kouri, Blood Transfusions, Jehovah’s Witnesses and the
Rule of Inviolability of the Body (1974) 5 R.D.U.S. 156. For cases where-
blood transfusions were ordered for Jehovah’s Witnesses who were pregnant
or had small children, see respectively Raleigh-Fitkin Memorial Hospital
v. Anderson 201 A. 2d 537 (N.J. 1964) and Application of President and Direct-
ors of Georgetown College 331 F. 2d 1000 (D.C. 1964). In Kennedy Hospital
v. Heston 279 A. 2d 670 (NJ. 1971) the Court denied a constitutional “right
to die”. A number of cases have, however, recognized the capacity of Jehovah’s
Witnesses to refuse blood even when death will probably result: see, e.g.,
In Re Brooks’ Estate 205 N.E. 2d 435 (Ill. 1965).

8 See Keyserlingk, Sanctity of Life or Quality of Life (1979), 6670.

1981]

THE RIGHT TO NATURAL DEATH

of lacking self-control of body and mind in the closing stages of
life. The right to seek an independent life has been extended to
the claim to an independent death.

II. Non-consensual treatment9

The observation of Justice Cardozo in Schloendorff v. Society of
New York Hospital that “every human being of adult years and
sound mind has a right to determine what shall be done with his
own body”’10 has become part of the rhetoric in modem common
law jurisprudence.”‘ Accordingly, individual power conclusively to
decline life-prolonging medical care may appear to have been firmly
established. 2 In fact, however, Justice Cardozo’s proposition con-
tains a passive precondition, namely soundness of mind, to which
dynamic effect is now given so as to limit an individual’s complete
right to bodily autonomy.

It has been noted in a broader context that behaviour once
assessed within doctrines of sin and heresy now may be assessed
within classifications of disease, particularly psychopathology. 3
Suicidal acts have long been considered indications of mental im-
balance, however, with the merciful effect of excusing the sin of
suicide to permit burial in consecrated ground, and to relieve family
stigma:, since the mentally ill are morally blameless. Coroners’
juries record verdicts of suicide while the balance of the mind was
disturbed with little if any consideration given to the possibility
that the choice of suicide may have been the act of a balanced
mind; the fact of the deceased having reached that choice is pre-
sumed to indicate mental imbalance.

Operating prospectively, mental health legislation links homicidal
and suicidal tendencies, and provides for a suspect’s involuntary
psychiatric assessment and subsequent detention and supervision,
with or without other treatment, to prevent a destructive act. A

9 See Somerville, Consent to Medical Care (1979).
10 105 N.E. 92 (N.Y. 1914).
11 See, e.g., Marshall v. Curry [1933] 3 D.L.R. 260 (N.S.S.C.) and the citation

by Laskin CJ.C. in Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 10 (S.C.C.).

12 In the “Brother Fox case”, Eichner v. Dillon 426 N.Y.S. 2d 517 (App. Div.
1980), the right of a competent terminally ill patient in the United States to
reject mechanical life supports was stated to be of constitutional dimension,
embodied in the constitutional right of privacy, and not to depend on the
mere common law “bodily right of self-determination”.

‘3This theme underlines much of the writing of Thomas S. Szasz: see,
e.g., The Myth of Mental Illness (1961) and Law, Liberty and Psychiatry
(1963).

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number of provincial statutory formulae are employed to express
the indication for involuntary assessment and detention, 14 but un-
derlying them is the common recognition that persons deliberately
placing themselves at risk of physical disabilities which may result
in death, but which medical care may alleviate so as to render
survival likely, are subject to preventive intervention. 1 They may
pass under the legal guardianship of others, who may give legally
effective consent to life-preserving treatment.0

The effect of cultural and professional psychiatric presumptions
of the pathological nature of the loss of will to live is that indivi-
duals who reject life-prolonging medical care, and perhaps who
decline what at best could be only death-postponing care, may be
assessed as incapable to care for themselves due to unsoundness of
mind. Medical literature includes records of patients who have
survived to express gratitude to the physicians who ignored their
refusals of treatment; records of those who eventually died in
medically-imposed torment are more easily dismissed as only anec-
dotal, however, as derived from the distressed misunderstandings
of the bereaved.’7 Disregard of patients’ refusal of treatment is rein-
forced when they are elderly and affected by the conditions of mind
associated with advanced age. Senility and confusion may be in-
voked to explain away decisions in which health care providers,
and perhaps family members, cannot concur. Further, fears may
exist that the refusal of treatment is not authentic, but is condition-
ed by a variety of psychological, sociological and, for instance,
economic factors.

Accordingly, the right of physical and medical autonomy ex-
pressed in Justice Cardozo’s observation may be subverted by
denying the attribute of soundness of mind and authentic free-will
necessary for its exercise. Further, such denial may be based upon

14Most refer generally to established danger to self or others. In Ontario,
s. 8 of The Mental Health Act, R.S.O. 1970, c. 269 (as am. S.O. 1978, c. 50),
refers to a person who “has threatened or attempted … to cause bodily
harm to himself” and who “is apparently suffering from mental disorder of
a nature or quality that likely will result in … serious bodily harm to
the person … or imminent and serious physical impairment of the person”.
15 See Meyer v. Supreme Lodge K.P. 70 N.E. 111 (N.Y. 1904), aff’d 198 U.S.
508 (1905), holding that administering an antidote to a would-be suicide was
lawful.

IGOn the role of those under whose legal authority such incompetents fall,
see Dickens, The Role of the Family in Surrogate Medical Consent (1980) 1
Health Law in Canada 49.

“‘See Jackson & Younger, Patient Autonomy and ‘Death With Dignity’:

Some Clinical Caveats (1979) 301 New England J. Med. 404.

1981]

THE RIGHT TO NATURAL DEATH

little more than medical or familial disagreement with the direction
or exercise proposed. This leaves the right in a precarious state.
Disregard of the absence of patient consent to life-assisting
treatment may be rationalized and defended by the conviction that
the patient subscribes to the general life-affirming ethic and intends
to survive. When the patient at risk of dying is unconscious and has
expressed neither consent nor objection to care, such as when
admitted to hospital in emergency following an accident, reason-
able and even extraordinary measures to preserve life or health
may be justifiable under the legal doctrine or presumption of im-
plied consent. Withholding ordinary and reasonable treatment in
these circumstances may, indeed, open the possibility of a mal-
practice or negligence allegation.

The limits of implied consent have not been comprehensively
marked, of course,18 and may not extend to non-essential, irreversible
procedures. Most consent forms for surgical procedures contain a
clause such as “I understand that during the course of surgery
unforeseen conditions may be revealed and I authorize the addi-
tional surgical procedures that are indicated as being necessary
for my condition in the best exercise of professional judgment,
the absence of
except these specific procedures, namely …
such a clause, due to its omission from the form, or the absence of
any written consent because of patient unconsciousness or the
emergency of the moment, the law nevertheless affords the physician
the right which the clause declares. The purpose is to remove
procedural barriers to life-saving and health-preserving medical
care. The law presumes the patient’s wish to survive in life and
optimal health. The law may go further, however, and permit treat-
ment to save life over the protests of the would-be suicide; it has
been seen that such a patient’s mental balance will be questioned,
and any error in management will be legally justifiable if it favours
life and preservation of the patient’s future options.19

“. In

The conditioning of the legal approach to emergency and at-
tempted suicide carries over to non-catastrophic cases where patients

18See Picard, Legal Liability of Doctors and Hospitals in Canada (1978),

66 et seq.

l9 S. 241 of the Criminal Code provides that:

Every one who … (b) without reasonable oause prevents or impedes or
attempts to prevent or impede any person who is attempting to save the
life of another person, is guilty of an indictable offence ….
The prohibition may in theory include among “every one” the person
whose life is attempted to be saved, so that a legal “right” to commit suicide
cannot be unquestionably asserted.

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[Vol. 26

simply want to remain medically untreated in the general or specific
ways, such as by surgical means, by which their lives may be pre-
served. The patient’s claim to be allowed to die may be resisted by
health care providers’ right to rescue.20 It may at first seem doubt-
ful in the light of developing dogma regarding free and informed
consent of patients to medical treatment that non-consensual sur-
gery or even less intrusive procedures would be undertaken, con-
trary to codes of medical ethics, but it is not obvious that Canadian
law proscribes the imposition of life-saving surgery upon an adult,
rational and resistent patient?’1

Section 45 of the Criminal Code, sometimes described as the

Good Samaritan provision, states that:

Every one is protected from criminal responsibility for performing a
surgical operation upon any person for the benefit of that person if
(a)
the operation is performed with reasonable care and skill, and
(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.

The provision leaves much to be desired as a positive guide to con-
duct. It is notable, however, that it makes no specific reference to
individual consent of the person operated upon, but speaks only
of what is reasonable in the circumstances, which introduces an
objective and communal criterion of propriety. Coming
in the
general part2 of the Criminal Code, moreover, the section governs
later specific provisions, notably on assault, so that conduct falling

20 This may appear an authentic right in view of the fact that, according
to s. 241 (see note 19, supra) others have a duty not to obstruct its exercise.
Absence of patient consent, or patient refusal, is not necessarily a “reasonable
cause” for obstructing the attempt because of social interests in the pre-
servation of life: see text between notes 38 and 40, infra.
2 1 Ability to impose relief from danger to life upon a non-consenting
patient may be reflected -in Regulations under hospital legislation. Repre-
sentative is Ontario Reg. 729, s. 49 (under The Public Hospitals Act, R.S.O.
1970, c. 378), which provides for written consent to surgery, but states that if
“the surgeon believes that delay caused by obtaining the consent would
endanger the life of the patient … the consent is not necessary and the
surgeon shall write and sign a statement that a delay would endanger the.
life … of the patient”. No distinction is recognized between clear refusal of
consent and delay caused by obtaining consent. See also Sask. Reg. 285/74, s.
50, pursuant to The Hospitals Standards Act, R.S.S. 1978, c. H-10; N.B. Reg.
66-47, s. 40, pursuant to Public Hospitals Act, R.S.N.B. 1973, c. P-23; Reg. s.
3.2.1.8, pursuant to [La] Loi sur les services de santd et les services sociaux,
L.R.Q., c. S-5.

2 I.e., Part I; the more specific category is given as “Protection of Persons

in Authority”.

19811

THE RIGHT TO NATURAL DEATH

within the assault prohibition may be defensible by virtue of section
45. It has been held that the section provides no defence to a charge
of abortion, but that the common law defence of necessity, pre-
served by section 7 (3) of the Criminal Code, may be relied upon.”
The necessity defence is broader than that existing under section
45, since the latter is limited to “a surgical operation”. Further, the
leading common law necessity case of R. v. Bourne 4 confirms the
legal availability of the defence to save not only life itself, but also
physical and mental health.

While physicians may be understandably reluctant to rely upon
the section 45 or necessity defences to undertake surgical or other
procedures upon patients over their rationally presented objections,
the availability in principle of these defences to criminal charges
shows that patients have no clear legal rights to insist that they
not be “rescued” from the effects of their own decisions. Patients
may appear little better protected in their autonomy in civil law.

In principle, of course, non-consensual

touching constitutes
battery, and is actionable per se for recovery of nominal or token
damages. If more than nominal damages are sought, however, such
as substantive or exemplary damages, the legal question must be
addressed of the loss sustained by patients kept alive against their
wishes. A general reluctance of Canadian courts to consider human
life a species of legal damage may be expected.25 Courts in the United
States have overcome their earlier refusal to regard wrongful con-
ception and wrongful birth claims by adults regarding their children
as actionable,2 but very few steps have been taken to accept indi-
viduals’ claims that they should not themselves have been con-
ceived or born.27 The language of Gleitman v. Cosgrove,28 in which

23See Morgentaler v. The Queen [1976] 1 S.C.R. 616. S. 251(1) of the
Criminal Code, which governs the crime of abortion, to which necessity
may be a defence, makes no reference to the woman’s consent. When the Code
was amended in 1969 (S.C. 1968-69, c. 38, s. 18) to provide for lawful abortion
by committee certification, s. 251(7) preserved consent provisions of the
general law for certified procedures.

24 [1939] 1 K.B. 687 (Cent. Crim. Ct).
25 See Doiron v. Orr (1978) 20 O.R. (2d) 71, 74-5 (H.C.) obiter. For damages
awarded for wrongful birth, however, see Cataford v. Moreau [1978] C.S.
933, 7 C.C.L.T. 250.

26See Ranous & Sherrin, Busting the Blessing Balloon: Liability for Birth

of an Unplanned Child (1975) 39 Albany L. Rev. 221.

2 But see Curlender v. Bio-Science Laboratories 106 Cal. App. 3d 811 (Ct

App. 1980).

28227 A. 2d 689 (N.J. 1967).

McGILL LAW JOURNAL

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a child’s wrongful life action was rejected, remains widely respected
on this point. 9 The Court observed that:

The infant plaintiff would have us measure the difference between his
life with defects against the utter void of nonexistence, but it is im-
possible to make such a determination. This Court cannot weigh the
value of life with impairments against the nonexistence of life itself ….
[Tihe infant plaintiff makes it logically impossible for a court to
measure his alleged damages because of the impossibility of making the
comparison required by compensatory remedies.2 0

The same reasoning may apply where an adult plaintiff sues a
physician for having prolonged his life. The basis of compensatory
damages is to put the plaintiff into the position- in which he wdould
have been had the wrong not occurred. Thus, a plaintiff claiming
that a physician’s battery or negligence resulted in his wrongful
survival and resultant pain and suffering, would have the court
measure the difference between his life as it endured and the void
of death he was denied. Even if the court would recognize in prin-
ciple that there may be conditions of life to which death is prefer-
able, it is not easy to see how substantive damages might be calcu-
lated in this circumstance. Further, the patient’s survival in a vege-
tative or unconscious state may appear to reduce or eliminate com-
pensation for suffering.

The tragic preference an individual may have for his earlier death
over his medically dependent enduring life is no doubt real, par-
ticularly in the United States, where medical costs may be borne
individually rather than by a third party insurer, such as a govern-
ment health plan. Anecdotes exist of elderly persons instructing
their physicians that upon their death they want their money to
go to their children, and not to their physicians’ children, and that
they therefore want no costly life-sustaining means to be employed
when they fall gravely ill and are in danger of dying. Nevertheless,
United States jurisprudence discloses no case in which litigation
has resulted in an award of damages for wrongfully prolonging life.
On the contrary, important cases have been compelled by hospitals
sustaining patients’
lives by artificial means, requiring famil
members or others concerned to obtain judicial support for their
preference that such means be removed and the patients be allow-
ed to die a natural death 1

29 See Becker v. Schwartz 413 N.Y.S. 2d 895 (1978).
3oSupra, note 28, 692.
31This was the origin of such celebrated cases as In the Matter of Karen
Quinlan 355 A. 2d 647 (N.J. 1976); In the Matter of Shirley Dinnerstein 380
N.E. 2d 134 (Mass. App. 1978); Eichner v. Dillon, supra, note 12.

1981]

THE RIGHT TO NATURAL DEATH

Beyond the conceptual difficulty in civil law of quantifying the
damages caused by physical survival, as by medical battery over the
patient’s opposition, lies the doctrinal difficulty of showing the
opposed life-preserving initiative to have been unlawful. The defence
of necessity to save human life recognized in criminal law32 may
have a civil law counterpart in actions alleging trespass to the
person. Trespass to property is defensible on this ground, as shown
in such historic cases as Mouse’s Case,-3 where property was held to
have been justifiably thrown from a barge in danger of sinking, and
in Gregson v. Gilbert,3 4 where the Solicitor General of England con-
tended that it was lawful to jettison cargo, namely one hundred
and fifty negro slaves, from a ship running short of water on
voyage if it were necessary to save other lives.3 5 Since trespass to
property may be lawfully undertaken where necessary to save
human life, trespass to the person may be equally so, if reasonable
and proportionate in all of the circumstances. 36 Where the individual
subjected to the trespass is also the person whose life is intended
to be saved, these conditions of the necessity defence may appear
to have been met. Thus, a battery action brought by such a person
may not only fail to secure more than nominal damages, but may
fail on its merits due to the defendant’s successful reliance upon
the right of rescue, that is, the necessity to save human life.3 7

Courts in the United States may seem better guardians of the
spirit of Justice Cardozo’s autonomy postulate than those in Canada,
particularly since the United States Supreme Court has emphasized
the significance of the constitutional protection of individual pri-

32See s. 45 of the Criminal Code, and the common law defence preserved

by s. 7(3) discussed in the Morgentaler case; see note 23, supra.

33 (1609) 12 Co. Rep. 63; 77 E.R. 1341 (K.B.).
34 (1783) 3 Dougl. 232; 99 E.R. 629 (K.B.).
35 For a more recent application of the defence of necessity to save life
serving to defeat a civil claim, see Esso Petroleum Co. Ltd ir. Southport
Corpdration [1956] A.C. 218 (H.L.).

3 6 Little case law exists directly on this point, but see Humphries v.
Connor (1867) 17 Ir. C.L.R. 1 (Q.B.), holding that a constable may commit
what would otherwise be an assault upon an innocent person if that is the
only way of preserving the peace. The development of the necessity defence
through such abortion cases as Bourne, supra, note 24, and Morgentaler,
supra, note 23, demonstrates the legitimacy of sacrificing one life for another.
37 This conclusion is offensive to principles of self-determination, and
opens the way to superseding an individual’s choice with objective and
paternalistic preferences. The contention that individual refusal of life-saving
treatment must be respected under legal sanction seems, however, to lack
authority other than in doctrinal reasoning.

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[Vol. 26

vacyY8 Nevertheless, the respected Massachusetts Supreme Judicial
Court found in 1977 that in principle such rights may be outweighed
by countervailing state interests, namely, the preservation of life,
the protection of interests of innocent third parties,2 9 the prevention
of suicide; and maintaining the ethical integrity of the medical
profession and its right to take affirmative action to save life
without fear of legal liability.40

Thus, an analysis of general principles of criminal and civil law
discloses no general right of an individual to die, since others may
not be bound to observe the limits upon intervention such a right
would require. Modem analysis in the setting of contemporary
medical and hospital practice may show a refinement of approach,
however, distinguishing ordinary from extraordinary treatment,
which may offer a patient more autonomy than is enjoyed under
general principles. This may more fully serve the value of self-deter-
mination declared by Justice Cordozo.

III. Ordinary and extraordinary treatment

The body of traditional medical law emerged at a time when
physicians visited the sick in their private homes, and treated them
from the meagre contents of the black bags they carried. The
relationship was contractual, based upon payment for services re-
quested and rendered. 1 The patient could accordingly terminate
the relationship and forbid future visits or maintain the relation-
ship but control the choice of treatments. Hospitals were institu-
tions of spiritual refuge, usually maintained as legal charities by
religious denominations and staffed by women in religious orders,
where the destitute sick and elderly went to die. As recipients

38 See Roe v. Wade 410 U.S. 113 (1972). For the impact of this case upon
the right to resist artificial life maintenance, see Eichner v. Dillon, supra,
note 12.
29 See the Raleigh-Fitkin Memorial Hospital and Georgetown College cases,.
40 Superintendent’ of Belcherton’n State School v. Saikewicz 370 N.E. 2d

supra, note 7.

417, 425 (Mass. 1977).

41 Remuneration on the fee-for-service basis continues to play a strong*

emotional role in physicians’ self-image as practitioners of an independent
profession serving patients, even when payment for the service is made
through a provincial health insurance plan at a collectively negotiated rate.

42The nature of the early “hospital” is shown in words sharing its origin,
such as “hospitality”, “hotel” and “host”. The naming of the newly created
centres where patients go to die a natural death in peace, dignity and un-
derstanding as “hospices” revives the inspiration of the early hospitals.

19813

THE RIGHT TO NATURAL DEATH

of charity, inhabitants of hospitals enjoyed few rights, but were
required to conform to religious and secular discipline.

As medicine developed its scientific basis, especially in the eight-
eenth and nineteenth centuries, the needs of medical education
and of medical research were increasingly recognized. Further,
scientific developments created a technological growth in diagnostic,
surgical and rehabilitative resources. Accordingly, hospitals grew
in importance not only as centres where patients were available
for teaching and study, but also as healing institutions where ex-
cellence in health service could be delivered to patients brought to
the technological facilities
they housed. Physicians, government
departments and, for instance, municipalities came to run hospitals,
and the modem diverse commercial and public-service hospital in-
dustry was created. With the advent of nation-wide health insurance
in Canada, most hospitals have passed from rendering patients
contractually purchased services, to rendering care to patients in
collaboration with provincial health ministries and health insurance
agencies. The law has been slow to note these developments, how-
ever, and is still struggling to see how hospital-patient relations
intersect with physician-patient relations.

The institutional and financial structure of health care delivery
has an important bearing upon the distinction which has arisen
in medicine in recent decades between ordinary and extraordinary
treatment. In the days of care given from contents of physicians’
black bags, no such distinction was drawn. Care was measured by
a standard of the ordinary, both for the skills physicians were
expected to be able to deploy and the materials they carried to
their patients; other ordinary resources consisted in the nutrition,
warmth, comfort and sanitation patients would be advised and
instructed to maintain for themselves, and which the rudimentary
hospitals could alone offer. It came to be accepted, however, that
surgical means could be reliable, and basic surgery came to be
considered part of ordinary care delivered in appropriate facilities.
Particularly when public-service hospitals arose, and mechanical

43A significant case ended in an out-of-court payment by the successful
defendant without recourse to the Supreme Court of Canada. The 3:2 division
in the Ontario Court of Appeal in Yepremian v. Scarborough General Hospital
(1980) 28 O.R. (2d) 494, rev’g (1978) 20 O.R. (2d) 510 (H.C.), reveals the depth
of legal uncertainty. On the settlement out of court which precluded appeal to
the Supreme Court of Canada, see The Globe and Mail (Jan. 17, 1981), 1. The
American case of Darling v. Charleston Community Memorial Hospital 211
N.E. 2d 253 (Ill. App. Ct 1965), followed at trial in Yepremian, has clarified
American law. See Picard, supra, note 18, ch. 10.

McGILL LAW JOURNAL

[Vol. 26

equipment became available to enhance caring skills, questions
arose of competition between equally needful patients for scarce
technological resources. The supply-and-demand pricing mechanism
of a free enterprise health care market is alone inadequate to
resolve the dilemma of allocating medical resources, since social
expectations reflected in socially provided services entitle all to
at least a common standard of health care.

Distinctions between, on the one hand, patients’ moral duties
to meet their responsibilities by accepting ordinary care to prolong
life and the physicians’ and hospitals’ duties to offer such care, and,
on the other hand, the discretionary offer and acceptance of ex-
traordinary care, have been addressed in ethical discourse for
several decades. The moral context and the medical context are
not necessarily congruent, but considerable significance was given
to the statement on prolongation of life made in 1957 to an inter-
national congress of anesthesiologists by Pope Pius XII, who em-
phasized obligations relevant to ordinary means of medical treat-
ment. He observed that

morally one is held to use only ordinary means –
according to cir-
cumstances of persons, places, times, and culture –
that is to say,
means that do not involve any grave burden for oneself or another.
A more strict obligation would be too burdensome for most men and
would render the attachment of the higher, more important good too dif-
ficult. Life, health, all temporal activities are in fact subordinated to
spiritual ends. On the other hand, one is not forbidden to take more than
the striotly necessary steps to preserve life and health, as long as he
does not fail in some more serious duty.44
In establishing the moral principle that, for prolongation of
life, only ordinary treatment is obligatory for patients to receive,
and for physicians and health facilities to offer, and that extraor-
dinary treatment is permissible but not required, reference was
helpfully made to the relative circumstances. The question of what
treatment is ordinary in a specific case is answered by regard to
place, time, culture and economy 45 (“means that do not involve any
grave burden”) .4

4 4 The Pope Speaks: Prolongation of Life

(1957) 4 Osservatore Romano
393-8; see also the presentation in Horan & Mall, Death, Dying and Euthana-
sia (1977), 281-7.

45 It may be offensive to consider the financial burden of preserving life,
but see Fletcher, “Ethics and the Costs of Dying” in Milunsky & Annas,
Genetics and The Law 11 (1980), 187.
4GInterpretations, uncertainties and alternative formulations in the Papal
pronouncement are reviewed in Veatch, Death, Dying and the Biological
Revolution: Our Last Quest for Responsibility (1976), 106-14. A more recent
papal statement preferred to speak of proportionate and disproportionate
means: see L’Eglise Canadienne (21 August 1980), 678.

19811

THE RIGHT TO NATURAL DEATH

A distinction drawing upon these elements may appear realistic,
since it takes account of differences in national, provincial and
regional medical and life-sustaining resources. It also incorporates
the sense of communal expectation, and the need to maintain a
common basic or minimum standard of health care, without burden-
ig hospitals and public funding agencies with impossible techno-
logical and financial obligations. A resource which is available, but
which is in too limited supply to meet all the demands which could
be made of it, such as an artificial or mechanical life-preserving
device, will by definition be extraordinary. Accordingly, its with-
holding in any specific case will not be a breach of duty. On the
other hand, everyone expects hospitals to be able to provide patients
with nutrition, warmth, sanitary care and, for instance, an adequate
range of basic drugs. Further, since these are ordinary care, patients
may not be free to decline them while remaining in hospital.

The distinction drawn in 1957 by Pope Pius XII, which has
animated subsequent bioethical debate, was given legal recognition
in the celebrated case of Karen Quinlan in 1976.’ Here, Chief Justice
Hughes, of the New Jersey Supreme Court, observed that:

We glean from the record here that physicians distinguish between curing
the ill and comforting and easing the dying; that they refuse to treat the
curable as if they were dying or ought to die, and that they have some-
times refused to treat the hopeless and dying as if they were curable.
In this sense … many of them have refused to inflict an undesired
prolongation of the process of dying on a patient in irreversible condi-
tion when it is clear that such “therapy” offers neither human nor
humane benefit. We think these attitudes represent a balanced imple-
mentation of a profoundly realistic perspective on the meaning of life
and death and that they respect the whole Judeo-Christian tradition of
regard for human life ….
Yet this balance, we feel, is particularly difficult to perceive and apply
in the context of the development by advanced technology of sophisti-
cated and artificial life-sustaining devices. For those possibly curable,
such devices are of great value, and, as ordinary medical procedures, are
essential. Consequently …
they are necessary because of the ethic of
medical practice. But in light of the situation in the present case (while
the record here is somewhat hazy in distinguishing between “ordinary”
and “extraordinary” measures), one would have to think that the use of
the same respirator or like support could be considered “ordinary” in the
context of the possibly curable patient but “extraordinary” in the context
of the forced sustaining by cardio-respiratory processes of an irreversibly
doomed patient.48

This judicial observation achieves a number of helpful effects. It
supports the refusal of physicians to treat curable patients as if

47 In the Matter of Karen Quinlan, supra, note 31.
48 Ibid., 667-8.

McGILL LAW JOURNAL

[Vol. 26

they are dying, even when patients decline to accept treatment and
invoke a right to die. It also supports physicians who decline to
use or to continue to use aggressive or heroic measures on patients
in terminal conditions, and thereby distinguishes between prolonga-
tion of life and mere prolongation of the process of dying.

The New Jersey court also amplified the 1957 papal statement
that ordinary means are related, inter alia, to circumstances of per-
sons. The ordinary/extraordinary distinction came to be drawn
because of advances in medical hardware, such as artificial lungs,
heart-lung machines and dialysis machines. It might have been
believed that machines themselves could be identified as “ordinary”,
when they would have to be used to prolong life, and as “extra-
ordinary” if they were in short supply relative to demand, when
their initiation, and then their maintenance, would be discretionary.
The 1957 reference to “persons” was amplified in the Quinlan case
to show the significance of the individual patient’s medical progno-
sis. If a medical means might effect a cure of a patient, it will be
“ordinary” for that patient, while at the same time being only
“extraordinary” for a patient whose prognosis, even with its em-
ployment, would remain unfavourable.

The Court in the Quinlan case also entered the troubled area
of quality-of-life considerations 4 9 It found that Karen Quinlan’s
medical prognosis was adverse, leading to the conclusion that her
artificial life-supports could lawfully be removed, because she would
never return to what the Court described as “cognitive or sapient
life”Y0 This neurological or intellectual criterion, consisting in
awareness of self and others, even without capacity to communicate
or to respond in any external way, may be sensitive to modern con-
cepts that the brain is the repository of human personality and
essence.5′ When the outer brain has irreversibly ceased to function,
a capacity to experience human personality has left the body, even
if the brain stem is alive and spontaneously maintains organic body
functions; that is, even though criteria of “brain death” are not
satisfied 2 The patient, although alive, has an unfavourable prog-
nosis, and accordingly is legally entitled only to ordinary treat-
ment.0

49 See Keyserlingk, supra, note 8, passim.
50 Supra, note 31.
51 For a discussion of brain function as a key factor in selecting the.
appropriate category for care of a patient, see Fama, supra, note 1, 517, n. 15.
52 See Law Reform Commission of Canada, Criteria for the Determination
53 Karen Quinlan remains alive at the time of writing, although her outer
brain has liquefied and will never regain function. The brain stem is alive

of Death [Working Paper 23] (1979).

1981]

THE RIGHT TO NATURAL DEATH

Recognition of the role of individual prognosis assists in clarify-
ing what treatment is ordinary. A terminal patient must be kept
warm and comfortable, and be given nutrition as part of ordinary
care. It is often found, however, that patients affected by malignan-
cies or otherwise in terminal conditions die of such conditions as
pneumonia. With the easy accessibility of antibiotic drugs in modem
times in Canada, pneumonia is not in itself life-threatening, but is
a relatively benign condition which is easily reversed. For the
patient whose prognosis is favourable, drugs to treat pneumonia
would be ordinary, and therefore obligatory. For the patient who,
if cured of pneumonia, would face only death shortly thereafter,
possibly in pain, severe discomfort or, perhaps at best, in un-
consciousness or unawareness, antibiotics to treat pneumonia would
be extraordinary. They might therefore be lawfully withheld, leaving
the patient to a somewhat earlier, but natural and perhaps more
comfortable, death.

The ordinary/extraordinary distinction pays no special regard
to the wishes of patients or of their families. In the Quinlan case
the Court did pay very particular attention to whether the applicant
for permission to terminate the patient’s life-supports, namely her
father, was able to express to the Court and to hospital authorities
Karen Quinlan’s authentic preference regarding termination. This
was indeed the point upon which the trial judge was reversed on
appeal. The trial judge pursued her interests rather than her wishes,
and doubted that an applicant seeming to opt for death could ade-
quately represent her in the litigation. The appeal court, noting
the depth of the father’s knowledge of her personality, found him
suitable to express the preferences Karen Quinlan would have
wanted to prevail. The appeal court also proposed a tripartite deci-
sion-making method, involving a hospital ethics committee, the
attending physicians, and the patient’s family. Nevertheless, the
distinction itself and its incidents are not dependent upon patient
consent.

Accordingly, a patient may be given ordinary treatment over
objections, or, if competent and fit to leave, be required to depart
from the health facility. The rescue right of health professionals
saves them from having to tolerate a patient’s avoidable death while
under their charge. Similarly, a patient cannot insist upon sub-
standard medical and nursing care, although a compromise may

and supports spontaneous organic functions, such as heartbeat and respira-
tion. She has contracted pneumonia on two occasions on each of which it
was reversed by antibiotic drugs; had this occurred to another patient, death
from pneumonia might have been allowed.

McGILL LAW JOURNAL

[Vol. 26

exist where a competent patient signs an assumption of liability
statement, and forfeits legal claims for the incomplete nature of
care the patient insists upon receiving, and for the incidents of such
care.

Regarding extraordinary care, however, the patient and the
patient’s family cannot insist that it be given, since allocation of
the perhaps scarce and costly resource is discretionary. The decision
is governed by factors such as clinical assessment of individual
prognosis, and the needs of other patients in the hospital and
prospective patients in the community. 4 Further, where extra-
ordinary means are initiated, they remain discretionary on thd part
of those bound by a legal duty of care.55 They may thereafter be
withdrawn at will and without consent, 6 unless the patient’s prog-
nosis has changed with the effect of making those medical means
ordinary in the circumstances of the patient. Discretion on use of
extraordinary means is mutual, however, and such means cannot
be applied over the patient’s refusal. If they are passively accepted
when applied, this may serve as consent, and the patient’s refusal
need not be expressly invited. Where the patient with an adverse
prognosis does object or refuse consent to extraordinary medical
care, however, that rejection must be respected. The curable patient
cannot resist prolongation of life, but the terminal patient is legally
entitled to refuse prolongation of the process of dying, and to insist
upon a natural death.

IV. Terminal conditions

There is an obvious sense in which human life itself is a terminal
condition, but in the medical sense the concept requires refinement
if it is to serve as a diagnostic or prognostic category. Definition

54 It has been argued, however, that the decision to deny a scarce medical
resource calls for legal procedural safeguards, based upon U.S. constitutional
prohibitions of deprivation of life without due process of law: see Due
Process in the Allocation of Scarce Life-saving Medical Resources (1975) 84
Yale LJ. 1734; cf. the Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
l(a).

55A person other than the attending physician who wilfully removes
artificial life supports may fall under s. 209 of the Criminal Code: “Where
a person causes bodily injury to a human being that results in death, he
causes the death … notwithstanding that the effect of the bodily injury
is only to accelerate his death from a disease or disorder arising from
some other cause”. Liability may alternatively arise under s. 241(b): see
note 19, supra, for impeding an attempt to save life; but see text at note 94,
infra.
5 But see the argument that administrative due process ought to be

observed, at note 54, supra.

19811

THE RIGHT TO NATURAL DEATH

was included in the precedent-setting Californian legislation which
gave terminal patients means by directive to express their refusal
of life-sustaining procedures. The Natural Death Act of CaliforniaP7
provides that:

“Terminal condition” means an incurable condition caused by injury,
disease, or illness, which, regardless of the application of life-sustaining
procedures, would, within reasonable mecucal judgment, produce death,
and where the application of life-sustaining procedures serve [sic] only
to postpone the moment of death of the patient.5 8

While patients in this rather narrowly-defined condition enjoy
autonomy to decline life-sustaining
(meaning death-postponing)
procedures, such autonomy remains unavoidably dependent upon
medical judgment, since patients cannot determine for themselves
whether or not they have entered a terminal condition. The Act’s
definition expressly refers to “an incurable condition … which
… would, within reasonable medical judgment, produce death”.
The definition of “life-sustainiig procedure”, which recognizes
emergence of the call for natural death following technological
developments capable of resisting death, is similarly tied to medical
judgment. This is not based on an objective standard of “reason-
able medical judgment”, moreover, but is based upon the subjective
clinical judgment of the attending physician. The Natural Death Act
provides that:

“Life-sustaining procedure” means any medical procedure or intervention
which utilizes mechanical or other artificial means to sustain, restore,
or supplant a vital function, which … would serve only to artificially
prolong the moment of death and where, in the judgment of the attend-
ing physician, death is imminent whether or not such procedures are
utilized. “Life-sustaining procedure” shall not include the administration
of medication or the performance of any medical procedure deemed ne-
cessary to alleviate pain.59
It is apparent, therefore, that under the scheme expressed in the
law of California, the ambit and commencement of patient auto-
nomy are defined by the judgment of physicians. The Californian
law on refusal of treatment makes explicit what may be implicit
in other common law jurisdictions, including those of Canada. It
therefore becomes important to ask by what criteria or means a
medical prognosis of a terminal condition and of imminent death
may be made.

Caution derived from experience, and the uniqueness of each
clinical case, may make physicians and hospitals hesitant to define
57 Cal. Stats. 1976, c. 1439, constituting c. 3.9 of the Health and Safety Code.
.8 7187(f).
59 7187(c).

McGILL LAW JOURNAL

[Vol. 26

a terminal condition in terms of time left to live. Imminence of
death was measured, however, in a well-known statement proposed
as policy for hospitals regarding the making and implementation
of Orders Not to Resuscitate, produced within a group meeting
under the auspices of the Center for the Analysis of Health Practices
of the Harvard School of Public Health. The authors, associated
with the Beth Israel Hospital in Boston, observe that:

The specific issue of the appropriateness of cardio-pulmonary resuscita-
tion arises frequently with the irreversibly, irreparably ill patient whose
death is imminent. We refer to the medical circumstance in which the
disease is “irreversible” in the sense that no known therapeutic measures
can be effective in reversing the course of illness; the physiologic status
of the patient is “irreparable” in the sense that the course of illness
has progressed beyond the capacity of existing knowledge and technic
to stem the process; and when death is “imminent” in the sense that
in the ordinary course of events, death probably will occur within a
period not exceeding two weeks.f0
A patient may be in a terminal condition, of course, even when
death is not imminent in this sense. Indeed, The Natural Death Act
in California defines a “qualified patient” as one diagnosed and
certified to be afflicted with a terminal condition,”‘ and provides
that if the person making a directive to withhold or withdraw life-
sustaining procedures “is a qualified patient at least fourteen days
prior to executing or reexecuting the directive, the directive shall
be conclusively presumed … to be the directions of the patient”02
If the declarant becomes a qualified patient after executing the
directive and has not subsequently re-executed it,
the directive
has less compelling force, and is influential but not conclusive.0 3
Accordingly, a governing principle of the Californian Act is that
a patient diagnosed to have a terminal condition must survive
fourteen days before executing a directive in order for it to take
full effect. This suggests that the Act affords only limited autonomy
to a patient whose death is “imminent” under the Beth Israel
Hospital test0

60 Rabkin, Gillerman & Rice, Orders Not to Resuscitate (1976) 295 New

England J. Med. 364, 365.

61 7187(e).
6 7191(b).
63 7191(c).
64For a discussion of treatment of patients whose death almost always
occurs before the fourteen-day waiting period under The Natural Death Act
of California has expired, see Imbus & Zawacki, Autonomy for Burned
Patients When Survival Is Unprecedented (1977) 297 New England J. Med. 308,
relating practice at the Los Angeles County-University of Southern California
Medical Center.

19811

THE RIGHT TO NATURAL DEATH

Little clear guidance comes from judicial decisions. In the
Saikewicz case, 5 the patient was treated as being in a terminal
state when he appeared likely to die within a matter of weeks or
months without treatment for leukemia. It was not predictable
how long he might live with treatment by chemotherapy, but
evidence suggested that life might be lengthened by up to thirteen
months, and that it was likely that he would die sooner without
treatment than with it. 6 The Massachusetts Supreme Judicial Court
noted that:

There is a substantial distinction in the State’s insistence that human
life be saved where the affliction is curable, as opposed to -the State
interests where, as here, the issue is not whether, but when, for how
long, and at what cost to the individual that life may be briefly ex-
tended. 7
The Dinnerstein case s concerned a sixty-seven-year-old patient
with Alzheimer’s disease, an incurable, degenerative brain disease.
She was considered to be in a terminal condition when her life
expectancy was no more than one year, and she was liable to suffer
a cardiac or respiratory arrest at any time. The Massachusetts
Appeals Court distinguished the case from Saikewicz on the ground
that:

This case does not offer a life-saving or life-prolonging treatment alter-
native within the meaning of the Saikewicz case. It presents a question
peculiarly within the competence of the medical profession of what
measures are appropriate to ease the imminent passing of an irreversibly,
terminally ill patient in light of the patient’s history and condition and
the wishes of her family.6 9
A non-lawyer considering these cases has concluded that
[wie are left in utter chaos. Both courts seem to imply that the distinc-
tion between prolonging living and prolonging dying is crucial. Yet,
Dinnerstein’s court sees their patient as differing from Saikewicz in this
regard, in spite of the fact that both had about a year to live.7 0

It may be, however, that the distinction can adequately be drawn
between prolonging life and postponing death, not necessarily for
purposes of philosophical consistency, but as a matter of legal
process. Where an attending physician or the specialist to whom
the attending physician refers the patient’s case diagnoses a condi-

65 Supra, note 40.
00A hearing on May 13, 1976 resulted in a decision not to treat Saikewicz,

who died on September 4, 1976.

67 Supra, note 40, 425.
68 Supra, note 31.
09 Ibid., 139.
70 Veatch, “Prolonging Living and Prolonging Dying: A Distinction That is

Not Decisive” in Milunsky & Annas, supra, note 45, 182.

McGILL LAW JOURNAL

[Vol. 26

tion which the physician describes as terminal, notwithstanding the
effects of treatment, that creates a prima facie presumption that it
is terminal, and that treatment can at best postpone death. The
patient may be considered to have an unfavourable treatment
prognosis for purposes of distinguishing ordinary from extraordinary
care.

A patient or family member on the patient’s behalf wishing to
contest the terminal diagnosis may do so by seeking a second or
subsequent medical opinion, but this may be unrealistic where the
patient is in a hospital or other institution, or lacks financial means.
Although scientifically based, medical prognosis is not an exact
science, however, or even a consensual art. Skilled physicians re-
spectful of each other’s opinions may reasonably differ. For the
exercise of legal choice and autonomy, a patient must begin with
the prognosis presented by the physician in charge of the case.
Depending upon hospital staff structure, this may be made by an
individual physician, or a physician in consultation with others.

The process of decision-reaching proposed in the case of Orders
Not to Resuscitate reflects a reputable practice of consultative
medical prognosis. It provides that:

The initial medical judgment on such question should be made by the
primarily responsible physician for the patient after discussion with an
ad hoc committee consisting not only of the other physician attending
the patient … but at least one other senior staff physician not pre-
viously involved in the patient’s care … Although the unanimous opinion
of the ad hoc committee in support of the decision of the responsible
physician is not necessarily required (for some may be uncertain), a
strongly held dissenting view not negated by other staff members should
generally dissuade the responsible physician from his or her initial
judgment.i’

This approach was reinforced in the practice which evolved in New
Jersey and beyond following the Quinlan judgment’s reference to
the role of hospital “ethics” committees. Where these committees
have been constituted,72 they are called “prognosis” committees. 3
The conclusion of a terminal prognosis may thus aim at reflect-
ing a medical consensus, but may also be influenced by elements of

’71 Supra, note 60, 365.
72 Their spread was limited when the Saikewicz judgment of 1977 was
interpreted to require judicial approval for decisions to withhold or with-
draw extraordinary means, and to invalidate extrajudicial decisions reached
according to the method indicated in the Quinlan case. The Dinnerstein judg-
ment did not immediately restore the Quinlan principle in the confidence of
medical professionals in the United States.

7- See e.g., Curran, Law-Medicine Notes: The Saikewicz Decision (1978) 298

New England J. Med. 499.

19811

THE RIGHT TO NATURAL DEATH

individual and institutional practice or style. Patterns of practice
in defining, conditions as terminal based upon life-expectancy may
differ between regions, institutions within the same town or area,
and even between departments and ad hoe committees within the
same hospital. It may be hoped that exchanges of opinions and of
information on practices will narrow disparities. Nevertheless, in
an individual case a legally defensible, professionally based prog-
nosis will be reached, which provides a legal basis for the decisions
which follow from it.

It may be considered that disparities with effects which may
determine life or death for an individual patient are intolerable,
and that the subjective elements of prognosis should be reduced if
not eliminated by taking such decisions out of the private realm
and placing them in a public setting. In the United States, judi-
cialization of medical decision-taking has been more widespread
than in Canada, and was expressly advocated in the Saikewicz case,
where the Court observed that:

[S]uch questions of life and death seem to us to require the process of
detached but passionate investigation and decision that forms the ideal
on which the judicial branch of government was created. Achieving
this ideal is our responsibility and that of the lower court, and is not
to be entrusted to any other group purporting to represent the “morality
and conscience of our society”, no matter how highly motivated or
impressively constituted.74
This observation has been limited to relevant analogies of the
Saikewicz case, which concerned a sixty-seven-year-old, profoundly
mentally retarded, inarticulate chronic institutional resident with
an I.Q. of ten and a mental age of approximately two years and
eight months. Many respected commentators have interpreted the
decision to leave sizeable areas of critical medical decision-making
not requiring reference to the courts.7 5 This is not necessarily in-
consistent with the subsequent Massachusetts Supreme Judicial
Court case In the Matter of Earle Spring,” where the Court stated
that, “our opinions [in Saikewicz and Spring] should not be taken
to establish any requirement of prior judicial approval that would
not otherwise exist”.7 Further, the tradition of taking contentious
issues to the courts, which is so deeply ingrained in the culture of

74 Supra, note 40, 435.
15 See for instance Annas, Reconciling Quinlan and Saikewicz: Decision
making for the terminally ill incompetent (1979) 4 Am. J. of Legal Med. 367;
Curran, supra, note 73; Schram et al., ‘No Code’ Orders: Clarification in the
Aftermath of Saikewicz (1978) 299 New England J. Med. 875.

76405 N.E. 2d 115 (Mass. 1980).
77 Ibid., 120.

McGILL LAW JOURNAL

[Vol. 26

the United States, is not a comparably significant part of Canadian
culture. When one notes in addition that the judicial decisions in
Saikewicz and the subsequent Dinnerstein case, both from Massa-
chusetts, created a condition described as “utter chaos”7 8 the
present Canadian means of medical decision-making, notwithstand-
ing its attendant risk of unevenness, may seem more tolerable.

V. Life-prolonging and the criminal law79

When it is recognized that physicians have duties to provide
patients with ordinary care, and that patients cannot necessarily
resist its administration, but that no comparable duty exists to
offer or receive extraordinary care, notably artificial or mechanical
life-supports, some uncertainties in the language of the Criminal
Code may be resolved. An approach becomes apparent to problems
faced in hospitals where decisions have to be made about whether
to remove patients from life-supports, and whether to install pa-
tients upon supports from which they may be later removed when
their prognosis has remained constant. Further, problems of hos-
pital management may be better faced, and issues of legal liability
may be clarified, when patients may become liable to removal from
life-supports and intensive care units because patients with a more
favourable prognosis have been admitted, and there are inadequate
resources to give all patients optimum care.

It has been seen that section 14 of the Criminal Code provides
that no person is entitled to consent to have death inflicted upon
him, which prohibits a person’s positive action intended to result
in a collaborator’s death, compatibly with section 224, which
punishes counselling, procuring, aiding or abetting another’s suicide.
Not every administration of treatment known likely to result in
death is homicide, however, or even what is sometimes called
active euthanasia, whether voluntary or involuntary on the patient’s
part. Criminal law doctrine regarding both intent and causation may
show that a physician prescribing treatment known likely to place
a patient’s life at risk, and even to be a probable eventual cause
of death, may be acting properly.

This issue was faced in the sensationalized English case of R. v.
Bodkin Adams in 1957.80 A physician was charged with murder after-

78 Veatch, supra, note 70. The Earle Spring case, supra, note 76, may have

reduced this to some extent.

79 See Law Reform Commission of Canada, Medical Treatment and Criminat

Law [Working Paper 26] (1980).

80 The judge’s summing up to the jury at the Lewes Assizes was unreported,
but the case is considered in some detail, including recourse to a transcript

19811

THE RIGHT TO NATURAL DEATH

a patient who had left him a generous bequest in her will was found
to have died of morphine overdose. The background of the case,
developed through exhumations of other patients, disclosed a pat-
tern of morphine-related deaths and generous bequests. The defence
was that the patient had indeed died, as the defendant expected she
might, with an intolerable excess of morphine, but that the medical
cause of death was the condition morphine was administered to
relieve, and that the intention of administering the drug was to
relieve pain. Devlin J. (as he then was) instructed the jury that
deliberately shortening life amounts to murder, and that there is
no special legal defence of preventing severe pain. He then added,
however:

But that does not mean that a doctor who is aiding the sick and the
dying has to calculate in minutes, or even in hours, and perhaps not
in days or weeks, the effect upon a patient’s life of the medicines which
he administers or else be in peril of a charge of murder. If the first
purpose of medicine, the restoration of health, can no longer be achieved
there is still much for a doctor to do, and he is entitled to do all that
is proper and necessary to relieve pain and suffering, even if the measures
he takes may incidentally shorten life.8′
It may be implicit in this observation that a patient who con-
sents to, or who actively seeks, a form of treatment which is in-
tended to relieve suffering, but which will incidentally shorten life,
is not having death inflicted upon him or her. Declining use of
artificial life-supports and facing the prospect of natural death
may be a legitimate means of relief from pain and suffering. On the
issue of causation of death, Devlin J. told the jury that:

Cause means nothing philosophical or technical or scientific. It means
what you twelve men and women sitting as a jury in the jury box
would regard in a common-sense way as the cause ….
If, for example,
because a doctor has done something or has omitted to do something
death occurs … at eleven o’clock instead of twelve o’clock, or even
on Monday instead of Tuesday, no people of common sense would say,
“Oh, the doctor caused her death.” They would say the cause of her
death was the illness or the injury, or whatever it was, which brought
her into hospital, and the proper medical treatment that is administered
and that has an incidental effect of determining the exact moment of
death, or may have, is not the cause of death in any sensible use of
the term.8

The jury acquitted, and no further homicide charges were brought
against the defendant. Devlin, J. made reference to death coming an

of the summing up, in Williams, Sanctity of Life and The Criminal Law
(1958), 289. See also Simpson, Forty Years of Murder (1978), 207.
8 1Transcript of instructions to the jury, from Williams, supra, note 80,

289.

8Ibid.

McGILL LAW JOURNAL

[Vol. 26

hour or a day sooner than it otherwise might. Although the judicial
direction was given in the same year as the statement of Pope Pius
XII, it did not consider mechanical means of life-prolongation, but
confined itself to drug treatments. The use of machines opened
the prospect, however, of death being postponed for far longer-
periods than hours or days. Nevertheless, the principle would seem
to apply to the new context of machines no less than to the earlier
context of drugs. A physician declining or discontinuing artificial
means of postponing a patient’s death in order to spare him or her
pain and suffering does not cause the patient’s death.83 If giving
intolerable amounts of drugs such as morphine may be legally
defensible for this purpose, withholding or discontinuing extra-
ordinary means, such as antibiotics to treat pneumonia, or artificial
life-supports, for the same purpose would appear no less defensible.
When this is done in conformity with the patient’s request, it may
appear as creditable service to the patient’s autonomy in wishing
to die a natural death.

This analysis casts a reflexion upon, and possibly a shadow over,
section 45 of the Criminal Code and the necessity defence available
under section 7(3).14 While saving life may appear reasonable and
necessary, employing surgical or other aggressive means to postpone
death may not be, particularly when such postponement would
leave a patient in pain or suffering, or aggravated by a sense of
indignity. It has been seen that section 45 incorporates an objective
and communal assessment of propriety, and it has been noted that
the ranking of values founding the defence of necessity must also be
undertaken according to objective and communal criteria.5 Disillu-
sionment with technology and its works, and evolving ethical aware-
ness that not everything that can be done by technology should be
done, may be conditioning a view that postponing natural death may
not necessarily be heroic or justified.

This conditioning may also affect the understanding of the duty
binding parents, spouses and, for instance, those having charge of

83 See the discussion of the blameless role of physicians who removed the
kidneys of the two accused’s victim and then shut off an artificial life
support, in R. v. Kitching & Adams (1976) 32 C.C.C. (2d) 159, 175 (Man. C.A.);
appeals against conviction were dismissed [1976] 2 S.C.R. ix.

84 See the discussion in the text at notes 22-23, supra.
85 See generally the discussion in Williams, Criminal Law, 2d ed. (1961),
746. In R. v. Bourne, supra, note 24, for instance, the judge directed the jury
that ending the life of an unborn child is legally defensible when done to
preserve the life -or health (meaning physical or mental health) of the
mother; the issue was not left to the subjective view of the jury.

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THE RIGHT TO NATURAL DEATH

others, to provide
their children, spouses or dependents with
“necessaries of life”, as required by section 197 of the Criminal Code.
It has been held that such necessaries may include medical aid,”
as is consistent with the language of section 197 (2) that an offence is
committed when a person bound by a duty fails to perform it if:

the failure to perform the duty endangers the life of the person to whom
the duty is owed, or causes or is likely to cause the health of that person
to be endangered [or injured] permanently.8t

The duty of the section clearly applies to ordinary medical care,
but it is not certain that it covers extraordinary means of care. The
provision is older than provincial health insurance schemes, and
applied when health care had to be provided from individuals’
private funds.8 8 There was clearly no duty then to supply costly
technological means of care,s9 and it may be doubted that the duty
has arisen subsequently, not least because hospitals have no duty
to make them available. Where a patient may be eligible for extra-
ordinary care and suffers permanent danger or injury to health in
its absence, the cause of such danger or injury may be seen to lie
in the predisposing condition, not in the failure to provide extra-
ordinary means of care. This is reinforced by the evolving perception
that death-postponing procedures are not necessarily preferable to
natural death. Similarly, section 199, 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

may be read restrictively, so that those rendering extraordinary
treatment are seen to exercise a discretion rather than to discharge
an undertaking, and the omission to continue such treatment may
be understood not to endanger the patient’s life, since this is
threatened by the condition the extraordinary treatment may be
taken to relieve.

The criminal negligence and homicide provisions of the Code
may be explained in the same way. Section 202(1) provides that:
Every one is criminally negligent who … (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.

86R. v. Brooks (1902) 5 C.C.C. 372 (B.C.S.C.).
87S. 197(2)(a)(ii) and (b); clause (b) refers to health being injured

permanently.

88In R. v. Yuman (1910) 7 C.C.C. 474 (Ont. CA.), it was held to be a lawful
excuse for not providing necessaries of life that the accused was unable to
support his wife.
89 It, may be recalled that the papal statement of 1957 defined ordinary
means by reference to circumstances of person, and to means that do not
involve any grave burden; see statement in the text at note 44, supra.

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Section 202 (2) makes it clear that “duty” means a duty imposed by
law, which would appear to exclude provision of extraordinary care
due to its discretionary status in law. Section 205(1) governing
homicide provides that:

A person commits homicide when, directly or indirectly, by any means,
he causes the death of a human being.

It has been seen in the Bodkin Adams case 0 however, that causa-
tion is not present where positive action which incidentally abbre-
viates life is taken in order to relieve pain, and the argument is
more compelling that withholding extraordinary, death-postponing
measures cannot be said to “cause” natural death. Withholding
ordinary care, however, such as nutrition, nursing and warmth,
may be a cause of death constituting manslaughter 1 when the
presence of a contributing or predisposing natural cause of death
is no defence, since there may be more than a single cause of
death.9

Section 241, prohibiting obstruction of a person “who is attempt-
ing to save the life of another person” governs only those who act
“without reasonable cause”.0
It may be insufficient cause that the
patient does not consent to or positively opposes such a life-saving
attempt, due to the limited licence given to suicide and to the
extent of public interests in saving human life. It may be a reason-
able cause, however, that the attempt is misconceived or will very
likely be futile, when it may only postpone a terminal patient’s death
at the cost of inflicting pain and -suffering. If the person “who is
attempting to save the life of another person” is only briefly post-
poning the natural death the patient desires, by recourse to extra-
ordinary measures, it may be lawful for a person with an appro-
priate interest, such as another’ physician or a family member,4 to
obstruct the discretionary and uninvited effort on behalf of its
intended but unlikely beneficiary. Devlin J., in R. v. Bodkin Adams,
approved action to relieve pain and suffering “even if the measures

00 See note 80, supra. The facts in Bodkin Adams may escape s. 209 of the
Criminal Code. Administering a drug to provide relief from pain cannot be
described as causing bodily injury, any more than may surgery which a
patient does not survive, for instance due to respiratory failure while under-
anesthetic.

91 See The Queen v. Instan [1893] 1 Q.B. 450 (C.C.C.R.).
92 See R. v. Kitching & Adams, supra, note 83.
93 See note 19, supra.
94 It has been seen (supra, note 19) that s. 241(b) governs “[e]very one”
who obstructs “any person who -is attempting to save the life of another
person”, so that in theory it governs the person whose life is attempted to
be saved.

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THE RIGHT TO NATURAL DEATH

… may incidentally shorten life”, 5 -which indicates approval of such
action which permits life to run to its natural termination.

VI. Natural death legislation

Since The Natural Death Act took effect in California at the
beginning of 197796 almost every state legislature in the United
States has received proposals for comparable legislation, and many
Acts have been passed. Most states have used the Californian model
with some modifications, and several have adopted somewhat
different approaches, such as Idaho and Arkansas. 7 Discussions,
analyses and comparisons of state laws have now generated a size-
able literature on the subject in law journals and elsewhere. This
tends on occasions to be related, however, to the issues of suicide
and euthanasia, which may distort the appearance of the legislation.
Suicide and natural death stand in contrast rather than comparison
to each other, and, similarly, euthanasia in the sense of active steps
to end life before its natural termination would appear distin-
guishable.

In March, 1977 a Private Member’s Bill was presented to the
Ontario Legislature derived from the Californian experience (see
Appendix). The issue was apolitical, and on a free vote on Second
Reading, the legislature approved the measure by a sizeable majori-
ty, sending it to Committee for consideration in detail. A pro-
vincial election intervened to terminate consideration, and the
matter has not been taken up subsequently. Space does not allow a
critical discussion of the proposal. The one question which must
be addressed, however, in light of the analysis above, is whether
such legislation would achieve any legal effects which could not
be achieved without it. It is acknowledged that non-legal effects of
enactment would have been probable, since an Act which does
nothing more than declare present law would at least bring it more
visibly to the attention of the public and especially of the medical
and hospital communities.

The proposed legislation was given a long title, An Act respect-
ing the Withholding or Withdrawal of Treatment where Death is
Inevitable. It defined “terminal condition” as “an incurable condi-

95 See note 81, supra.
96 See note 57, supra.
97 For one of the earlier summaries of United States practice, see Raible,
The Right to Refuse Treatment and Natural Death Legislati6n (1977) 5
Medicolegal News (No. 4, Fall) 6. See also Relman, Michigan’s Sensible
‘Living Will’ (1979) 300 New England J. Med. 1270.

McGILL LAW JOURNAL

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tion … by reason of which, in reasonable medical opinion, death
is imminent and only postponed without improvement of the con-
dition during the application of life-sustaining procedures.” 8 It
therefore made clear -its application only to death-prolonging or
death-postponing procedures. The legislation’s effect was intended
to be triggered by a medical diagnosis, and it provided a means to
resolve medical uncertainty about whether a terminal condition
existed, in the event of doubt.99 “Life-sustaining procedure” was the
expression used for a death-postponing procedure, defined as “a
medical procedure or intervention that utilizes mechanical or
artificial means to sustain, restore or supplant a vital function to
postpone the moment of death, but does not include a medical
procedure or intervention for the purpose of alleviating pain”. 10
This covered extraordinary treatment, apparently requiring hard-
ware as opposed, for instance, to drugs, although many modem
pharmaceutical products are artificial.

The proposal permitted competent adults alone to make a
written, signed and witnessed declaration limiting their express or
implied consent to treatment to exclude “life-sustaining procedures”
during their terminal condition. A declaration would be valid for
five years unless revoked, 10′ revocation occurring upon the signatory
indicating in any manner an intention to revoke, without regard to
mental competence, or automatically upon the signatory becoming
pregnant. 0 2 A declaration would have taken effect upon being given
to the signatory’s attending physician or to a medical staff member
or employee of the health facility where the signatory was a
patient.’ 0

When the proposed legislation’s definitions of terms are read
into the language of the written declaration, 0 4 it may appear that
the statement would have clear legal significance in the absence
of the legislation under which it claimed its authority. The legisla-
tion would have created no right to an avoidable death, but would
simply have made formal an informal practice, to which patients
may have current recourse, of giving tangible expression to their
refusal (in advance or upon its proposal) of discretionary artificial
means of postponing death beyond the time of its natural occur-

98 Clause I(d).
99 Clause 4.
100 Clause 1(b).
101 Clause 2.
102 Clause 3(3).
103 Clause 3(1).
104 Form 1.

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THE RIGHT TO NATURAL DEATH

rence. The provincial proposal did not attempt to affect rights and
duties under the Criminal Code, of course, nor did it contain civil
remedies where a patient’s direction was disregarded. Sanctions
may have been implicit, however, both in liability to professional
discipline for misconduct, and in civil remedies for interfering with
the patient without consent and in defiance of a clear refusal of
discretionary treatment. These sanctions exist, of course, under
present law.

Much of what the proposal aimed to achieve, therefore, can be
achieved under existing law.10 5 In that sense, the legislation was
unneccesary for purely legal purposes. It was a very limited pro-
posal, designed to secure rather less than a number of its supporters
in the community appeared to believe, since it would have opened
no door to active voluntary euthanasia; equally, it would have se-
cured less than a number of its opponents feared, since it would
have afforded physicians no power to end a life capable of natural
continuation. It might have opened the way, however, to psycholo-
gical, social, family or other pressure upon sick or elderly persons
to make declarations they would not spontaneously have made.

One of the proposal’s advantages would have been to provide
a means to resist the rescue fantasies of physicians, by patients’
written declarations that natural death was not to be obstructed.
Another benefit would have been to require physicians to satisfy
themselves definitively whether their patients who had registered
declarations were actually in a terminal condition. At present, phy-
sicians intending to exercise their discretion in favour of employing
extraordinary means may be able to avoid identifying the patient’s
point of entry to such a condition, and rely for patient consent to
treatment upon implication, or the hospital’s form of consent for
general treatment-or surgery. Since informed and free consent is
a continuing condition of treatment, it may be useful to have a
means to require physicians expressly to renew consent, and there-
fore to give an opportunity for consent to be refused, at the point of
introducing extraordinary means.10 6

105 It may be noted, for instance, that in the “Brother Fox case”, supra,
note 12, effect was given to an informal spoken expression of a wish to
decline extraordinary care, although recourse might have been made in theory
to a written form.

106 If a patient were unconscious or otherwise unable to give or decline
effective consent at that time, extraordinary means might be initiated pending
receipt” or refusal of consent from the appropriate person acting on the
patient’s behalf.

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Conclusion

There is no clear legal right to die an avoidable death. When
death is irresistible and imminent, however, mechanical and other
extraordinary means to postpone its incidence may be rejected by
patients or, where they are not competent to exercise choice, by
appropriate others on their behalf. Where extraordinary means of
treatment are rejected, patients will be left to ordinary treatment
and the resources of their own bodies, minds and personalities.
Where those are not sufficient to sustain life, they will achieve
their right to a natural death.

Appendix

Ontario’s Proposed Natural Death Act

Explanatory Note

The purpose of this Bill is to provide a means whereby an individual
may limit the effect of a general or implied consent to medical treatment to
prevent the use of life-sustaining procedures while in a terminal condition.

The Bill is designed to achieve this purpose by permitting an individual
to execute a direction limiting his consent. Once a physician or hospital
employee has notice of this direction, there is no defence of consent as
a basis to avoid civil liability if the patient is treated with life-sustaining
procedures during a period of terminal condition.

An Act respecting the Withholding or Withdrawal of
Treatment where Death is Inevitable

1. In this Act,

(a) “attending physician” means physician selected by
or assigned to a patient and who has responsibility
for the treatment and care of the patient;

(b) “life-sustaining procedure” means a medical pro-
cedure or intervention that utilizes mechanical or
artificial means to sustain, restore or supplant a
vital function to postpone the moment of death, but
does not include a medical procedure or intervention
for the purpose of alleviating pain;

(c) “physician” means a person licensed under Part III

of The Health Disciplines Act, 1974;

(d) “terminal condition” means an incurable condition
caused by injury or disease by reason of which, in
reasonable medical opinion, death is imminent and
only postponed without improvement of the condi-

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THE RIGHT TO NATURAL DEATH

Direction
limiting
consent

Witnesses
of
direction

Beneficiary
of estate
as witness

Duration

When
direction
effective

Direction
included
in medical
records

Revocation

Direction
deemed
valid

tion during the application of life-sustaining pro-
cedures.

2.

(1) Any person who has attained the age of majority, is
mentally competent to consent, is able to make a
free and informed decision and has, or is deemed to
have, consented to medical treatment may, in writing
in Form 1 signed by him, direct that the consent
does not extend to the application of life-sustaining
procedures during a terminal condition.

(2) A direction under subsection 1 is not valid unless
the signature is witnessed by two persons neither
of whom is a relative or an attending physician or
other person engaged in the health care of the
person giving the direction.

(3) No person who witnesses a direction under sub-
section 2 is entitled to any benefit from the estate
of the person who gives the direction, except charges
or directions for payments of debts.

(4) A direction is valid for five years from the date of

its signing unless revoked under section 3.

3. (1) A direction under section 2 does not take effect
unless it is given to the attending physician of the
person giving the direction or, where the person is
a patient in a health facility, is given to the attend-
ing physician or a person on the medical staff of or
employed by the health facility.

(2) Upon a direction being given to one of the persons
mentioned in subsection 1, the direction or a copy
of it shall be included in the medical records of the
person giving the direction.

(3) Where the person signing a direction in any manner
and without regard to mental competency indicates
to one of the persons mentioned in subsection 1 an
intention to revoke the direction or is pregnant, the
direction is revoked and shall be removed imme-
diately from the medical records and destroyed.

(4) Notwithstanding subsection 1, a direction given there-
under by a person who had not attained the age of
majority, was not mentally competent to consent,
or was not able to make a free and informed decision,
is valid for the purposes of this Act if the person
who acted upon it had no reason to believe that the
person who gave it had not attained the age of
majority, was not mentally competent to consent, or
was not able to make a free and informed decision,
as the case may be.

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Terminal
condition

4. Where doubt exists as to whether or not a terminal

condition exists for the purpose of a direction,

(a) a terminal condition shall be deemed to exist where
in the opinion of two physicians, each of whom has
made a separate diagnosis in respect of the person
giving the direction and neither of whom has any
medical responsibility for that person, the terminal
condition exists; and

(b) a terminal condition shall be deemed not to exist
where in the opinion of one physician whose opinion
is sought for the purposes of clause (a) a terminal
condition does not exist.

5. No action or other proceeding for damages lies against
any person for any act or omission made in good faith
and without negligence in the observance or intended
observance of a direction purporting to be given under
this Act.

6. Nothing in this Act shall be construed to impose an
obligation to provide or perform a life-sustaining pro-
cedure where
the obligation does not otherwise exist
at law.

7. (1) A death that occurs subsequent to the withholding
or withdrawal of life-sustaining procedures pursuant
to a direction signed under this Act shall not be
deemed to be a suicide or self-induced death under
any policy of insurance.

(2) A requirement that a person sign a direction as a
condition for being insured for or receiving health
care services is void.

8. Subject to subsection 3 of section 3, every person who
wilfully conceals, cancels, defaces or destroys the direc-
tion of another without that person’s consent is guilty
of an offence and on summary conviction is liable to a
fine of not more than $1,000 or to imprisonment for not
more than thirty days, or to both.

Civil
liability

Other
obligations
not affected

Insurance

Idem

Offence

Commencement

9. This act comes into force on the day it receives Royal

Assent.

Short title

10. This Act may be cited as The Natural Death Act, 19??.

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THE RIGHT TO NATURAL DEATH

Form 1

DIRECTION TO ATTENDING PHYSICIAN AND MEDICAL STAFF

I being of sound m ind, w ilfully
I ……………………………………………………………………………..
and voluntarily, direct that all life-sustaining procedures be withheld or
withdrawn -if at any time I should be in a terminal condition and where the
application of life-sustaining procedures would serve only to artificially
prolong the moment of death.

It is my intention that this direction be honoured by my family, physicians
and medical staff as the final expression of my legal right to refuse medical or
surgical treatment and to die naturally.

M ade this ………………………………

day of ………………………………………………

(m onth, year)

The person signing this directive
him/her to be of sound mind.

is personally known to me and I believe

(signature)

(Witness)

(Witness)