Earlier this week I blogged on the recent decision of the Alberta Court of Queen’s Bench in the Baby M case, where the Court ordered that Baby M should be removed from life support. She was a 27-month-old child being cared for at Stollery Children’s Hospital in Alberta, and today, news outlets are reporting that sadly, she has died. Read National Post
Her physicians unanimously agreed that her condition was irreversible and that no further medical intervention was warranted. Her parents, who are charged with aggravated assault and other related offences against their daughter, wanted her to be kept alive.
The Court’s ruling was stayed pending appeal, and an appeal decision was rendered on Wednesday. The Court of Appeal upheld the lower Court’s ruling. In so doing, it referred to the judge’s decision as being made after careful reflection, including consideration of the parents’ religious beliefs. Importantly, it was also stated that the medical condition of Baby M was such that the decision to provide only palliative care would be the same whether the parents were said to be responsible for the injuries or not.
The issue of “essential treatment” appears to have been the focus of the dispute. The parents argued that there was no jurisdiction for the judge to grant the order, as the withdrawal of care does not fall within “essential treatment” as defined in the applicable legislation. The Court of Appeal noted, however, that if such argument were correct, there is a gap in the legislative scheme, such that the judge’s exercise of her inherent parens patriae jurisdiction in consideration of the best interests of the child was warranted.
In Ontario, the law is clear, in that the Court of Appeal has held that withdrawal of life support is considered “treatment” within our governing legislation, the Health Care Consent Act. Sections 10, 21 and 37 of this Act are worth a read for those interested in getting insight into how the process works in Ontario when there is disagreement about consent or refusal of treatment.
This is a difficult moral and ethical area, and my thoughts go out to all concerned.
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