Legal Murder

December 22, 2008 permalink

The National Post reports on a baby identified only as M, born prematurely with too many medical problems to count. A judge authorized ending life-saving treatment, resulting in death the next day.

If this doctrine becomes accepted, there is no way to stop "mission creep", spreading the practice to less desperate cases. Combine this procedure with the existing insensitivity of social workers and the rubber-stamp nature of most family courts, and soon police and social workers will be bullying families with death threats. This is no exaggeration. In the US and Canada, 95% of criminal cases now end with a guilty plea. One of the inducements to plead guilty is the threat of harming children if the accused pleads not guilty and forces a trial. Threats of harm to children could eventually be upgraded to threats of death.

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Welfare agencies can stop life-saving care

'Best Interests'; Judge rules in Children's Aid case of 'crack baby'

Tom Blackwell, National Post Published: Monday, December 22, 2008

For child-welfare agencies, there is one overriding goal: to protect the health and well-being of children in their care, sometimes even ordering medical treatment for them.

But a recent court ruling has turned that mission on its head, concluding that agencies can consent to doctors withdrawing potentially lifesaving treatment from a seriously ill young person.

The decision came in the Ottawa case of a "crack baby" whose heart surgery was cancelled when physicians decided further care was ultimately hopeless. A day after the judge gave the Children's Aid Society of Ottawa-Carleton the go-ahead to agree to ending treatment, the baby died.

The case left the Children's Aid Society with a difficult and legally murky decision, since it was unable to locate the three-week-old infant's mother to consult her on treatment, said Barbara MacKinnon, the agency's executive director.

"We don't come into this business to make these decisions. We come into the business to keep children alive and protected and safe," she said. "We really pushed the hospital to help us understand, to make us believe that this is really necessary."

Though the scenario is rare, it may arise more and more often as medical science becomes increasingly adept at keeping such preemies alive after birth, Ms. MacKinnon said.

Irwin Elman, Ontario's independent children's advocate, said the ruling is probably the right one, since a children's aid society must, in effect, act like a parent to the children in its care. But he said he is worried that under-funding of the sector and other pressures on well-meaning staff may not necessarily allow them to consider such questions as seriously as they should.

"Children's Aid needed to make that decision with love," Mr. Elman said. "And if they don't love their kids, then they need to go back to the drawing board."

The baby, referred to in the decision only as M., had been born prematurely this May at only 1.8 pounds, suffering from a brain hemorrhage, dangerously fluctuating blood pressure and blood-sugar levels that required insulin injections every two hours. He also had a serious heart condition for which he was initially to undergo surgery at the Children's Hospital of Eastern Ontario.

But a team of doctors, nurses and ethics specialists concluded that the surgery would only be invasive and painful and that palliative care designed to keep the infant as comfortable as possible was medically and ethically appropriate.

Withdrawing life-support would also be in keeping with the baby's best interests, they said.

While such societies are allowed under Ontario law -- and similar legislation in other provinces -- to consent to medical treatment even when the parents object, it is unclear what the term "treatment" encompasses, Justice Monique Metivier said.

Child-welfare law "has as its paramount purpose to 'promote the best interests, protection and well-being of children,'" the Superior Court judge noted.

"While 'treatment' is not legislatively defined, I am of the view that the best interests of a child can, in appropriate circumstances, require refraining from invasive treatment or withdrawing medical treatment other than palliative care."

Disputes between doctors who feel further treatment of a critically ill patient is fruitless and family members who want them to keep trying have increasingly ended up in court lately. The law is still unclear, though, about whether families or medical staff have the final say in such cases.

Justice Metivier seemed to give the nod to physicians, saying they ultimately do not need the children's aid societies' consent to withdraw treatment if they consider doing so appropriate.

Juliet Guichon, a medical ethicist at the University of Calgary, said the scenario is a tough one for child-welfare agencies, since a death of a child in their care always comes under scrutiny, with autopsies being mandatory in some provinces.

However, the judge in this instance appears to have indicated that medical professionals are the final arbiters of when treatment should be halted, she said.

tblackwell@nationalpvost.com

Source: National Post