Wednesday, March 27, 2019

Terrible decision by Ontario court in food and fluids case.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition



Several weeks ago the Euthanasia Prevention Coalition announced our intention to intervene in the Cement case, which was being heard by the Ontario Consent and Capacity Board. The Consent and Capacity Board is a judicial body that was established under the Ontario Health Care Consent Act to determine the course of treatment when a substitute decision maker disagrees with a proposed course of treatment that is being proposed by a hospital/doctors.

The Cement case concerns Hannah Cement, a 62 year-old woman with Down Syndrome and dementia, who is a life-long member of an Orthodox Jewish community and family. The substitute decision makers for Hannah, her family, refused to consent to a course of treatment that was comprised of the withdrawal of all treatment and care, including food and fluids and providing only comfort care.
 

John Campion, was the lawyer who represented the Euthanasia Prevention Coalition. EPC was granted a limited intervention standing based on our concerns related to the physicians defining food and fluid as medical treatment.

Donate toward the cost of the Euthanasia Prevention Coalition court intervention. (Link).
The substitute decision makers were willing to negotiate the level of care for Hannah but they were not willing to consent to the withdrawal of nutrition, hydration or ventilation.

The decision by Lora Patton, the Judge in this case, stating the following:

  • No further antibiotics will be offered in the event of and for the treatment of aspirations although these may be offered as required for comfort measures to relieve discomfort; 
  • No dialysis will be offered;
  •  No vasopressors will be offered; 
  • No CPR and no mechanical ventilation will be offered; 
  • Feeding will cease if any of the above treatments are required but for the operation of this order. 
  • All investigations and other interventions will cease. 
  • Comfort measures consisting of the administration of medications to ease suffering, pain, shortness of breath, anxiety, nausea, or any other symptoms, including bacterial infections, will be provided.
Patton ordered that the decision must be implemented by April 5, 2019.

This decision undermines the clear and unified wishes of the substitute decision makers (her family), it ignores the position of her life-long faith tradition, it will result in her dying by dehydration, and it is based on a discriminatory premise that Hannah's clear wishes cannot be ascertained because she has Down Syndrome.

I hope that this decision will be appealed and I hope that the Euthanasia Prevention Coalition will once again be given intervention standing in this case to argue why nutrition and hydration does not constitute a form of medical treatment, but rather normal care.

The significance of the Cement case.

This is a precedent setting case in Canada concerning the definition and provision of assisted feeding.

In 2014, the Euthanasia Prevention Coalition intervened in the Bentley spoon feeding case. In February 2015, the BC Supreme court, in the Bentley case, decided that:

Oral nutrition – like spoon feeding – should not be considered health care or medical treatment, but rather seen as basic personal care and support.
The British Columbia Court of Appeal decided not to hear an appeal of the Bentley decision establishing the precedent that spoon feeding is not medical treatment.
 

If food and fluids are defined as medical treatment, then food and fluids can be withdrawn in the same manner as withdrawing or withholding any type of medical treatment.

For Hannah Cement, the withdrawal of fluids will cause her to die by dehydration.

13 comments:

Ak Rhodes said...

So do we know if there was a written document outlining that food and fluids were to be provided in this case? Or does it hinge on the verbal statements of the family? If there were a written document, this is ominous, since now the judge and by extension the doctors/caregivers can choose to ignore such written demands - and get away with that.

Anonymous said...

Rhodes, doctors have always had that power. It is just something that is not common knowledge. At the Bentley case I spoke with Kathleen Bentley, who is the daughter and a registered nurse, and she said that nursing homes do it all the time: starve elderly residents to death with or without the approval of the patient.

Paul Anderson said...

Doctors sometimes do things that they do not actually have the legal power to do. Sometimes it is the doctor who does not clearly understand the law; other times the doctor in question relies upon the fact that many hospital staff, patients, family and other members of the public are unfamiliar with the details of laws governing issues such as consent and capacity. An excellent resource in this connection is the Advocacy Centre for the Elderly, a group of lawyers and other legal professionals who offer expert legal advice and representation.

I witnessed a case in which a patient was declared by separate staff physicians simultaneously competent and incompetent in regard to making decisions about her care. If she agreed with the doctor and consented, she was deemed competent; and if she disagreed and did not consent she was deemed incompetent.

It is indeed a strange mentality that sees food and fluids as special medical care for which one must qualify, rather than as basic human rights, and the unwanted active termination of life as a service.

gordon friesen said...

I have never been able to wrap my head around the idea that hydration and nutrition are "care". In fact,I have the same attitude with regards to ventilation.

Providing food, water and oxygen is not medical care.

The only argument for withdrawing these requirements of life is economic, as in "we do not wish to pay for this any more."

Time to stop pretending. Argue the issue honestly.

Best Regards,

Gordon Friesen, Montreal
http://www.euthanasiediscussion.net/

geardoid said...

This case certainly cries out for an appeal. At the very least it is draconian to allow no further investigations into actions that may or may not be taken with the patient. If there is no refused leave for appeal (as there should not be a refusal since the case is dramatic and precedent-setting), why is the Thomas More guild not banging on the door? Very recently (in Ottawa) Jocelyn Downey argued that everyone has the right to refuse food and water. It may be doubted that she was entirely correct, at least in B.C. where the necessaries of life are not medical care (given that one can refuse medical care); but her position matches the erroneous presupposition of the Supreme Court in Carter, namely that persons have a fundamental right to commit suicide. At the very least in Catholic moral theology (and here I believe observant Jewish believers would agree), to declare any sin 'a right' is itself unpardonable [John Paul II - Dominum et Vivificantem , sect. 46 final para. ] The supreme court could not have been more in error from the outset of its unanimous reasons in Carter - and that case proceeded even though its 'matter' (the life of Kay Carter) was moot. Ostensibly the reasons applied to a person who is legally 'competent' (even though many persons fitting that broad definition could not be considered psychologically competent to make life-ending decisions that are final: indeed the decision to die is in many cases not rational even if 'legally competent'. It seems that judge Patton has wrongly accepted 'legal competence' (or its absence) as the rationale for acceding to a life-terminating decision by the patient's guardian or power of attorney, even outside of the ambit of MAID. The role of guardian is to safeguard the charge's best interests, interests which are necessarily predicated on the charge continuing to exist alive.

Audrey Laferriere said...

We would never starve a pet to death so why is it okay to starve a human to death.

Sylvia Genders said...

Witholding food and water is murder. They have been doing this in some states in the U.S. for years to Hagen death, often without 'comfort' care. I don't want drugged murder in my country any more than I want drugged rape.

Mary Laframboise said...

Is she less valuable and her life to be extinguished by starvation or dehydration because she has Down's Syndrome? God will avenge crimes against the innocent.

Helen said...


They want to withdraw food and fluids to make this lady die. The patient has Down's Syndrome and dementia. She is does not seem to be in pain. The doctors do not seem to have given a particular reason for the withdrawal of nutrition. This is euthanasia. If someone is going to have their life ended there should be reasons given for this. Is anyone safe from euthanasia? What are the grounds to allow euthanasia? What if someone will be ill for 6 months and after that they will be recovered. Will a doctor be allowed to kill them? Legalised euthanasia gives doctors incredible power. Doctors have the authority to kill someone for ANY reason.

No Decency! said...

My opinion exactly. I watched my mother die by dehydration, told that her dementia prevented her swallowing and that there was nothing more to be done for her. Since it had gone on for one week before I was told of it, I believed them, but I still have tremendous guilt about it.

Richard Poole said...

It’s so intuitively basic that permitting “death by thirst” is a horror that nobody can ignore.That a court decision condones It is particularly shocking.I would challenge the judge in this case to deprive herself of fluids for even one day to understand the horror of the suffering this would cause.

gypsylm said...

I am shocked!! I was a home-share provider for Hannah for 3 years and had lost touch with her and her progress after I had bi-lateral hip replacements. I knew she was in an Ottawa Jewish care facility and was pleased that she was being looked after in a kind and compassionate way. This is the first I knew of her current situation and it is very disturbing to say the least.
When Hannah lived with me she was a funny, vibrant "50 something" young lady who didn't miss a trick and was always up to something flirty and amusing. She was so loving and caring and to hear that her life, albeit, diminished from when she resided with me, is up for debate is heartbreaking.
Hannah fought hard to have a fulfilled, normal and meaningful life and didn't want to miss one moment of what life had to offer her.....including her "food"! I can't even imagine that she would want to end her days in this fashion! What a tremendous travesty of justice and more importantly a total defiance of God's sanctity and preciousness of life. A previous comment stated society’s position of NO-TOLERANCE to knowingly starve and dehydrate our pets until death...what then does Hanna's battle say about society’s….. position on, priority of and value of HUMAN life? May God forgive ALL who are trying to force this monstrous decision on such a gentle woman who deserves a better end to a somewhat difficult existence.
May God truly bless the endeavours of those who are fighting against this diabolical decision of death by dehydration and starvation..... and whatever the outcome Hannah....I pray that God will give you peace and physical comfort until I meet you again on the other side of Jordan!
.....Lynda

Alex Schadenberg said...

Dear Lynda: Contact the Euthanasia Prevention Coalition at: info@epcc.ca. We need you to comment on the Life of Hannah. Some people are dehumanizing those with dementia. They are human beings deserving equal respect.

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