COVER

THE ‘MERCY’ KILLERS

Val Ross November 21 1983
COVER

THE ‘MERCY’ KILLERS

Val Ross November 21 1983

THE ‘MERCY’ KILLERS

COVER

Val Ross

For 16 fitful hours after her birth, Candace Taschuk struggled for life in Edmonton’s University Hospital, then died in her mother’s arms on Oct. 8, 1982. Two weeks ago the Alberta attorney general’s department charged a 36-year-old Israeli doctor, Nachum Gal, with capital murder in connection with her death. Baby Taschuk’s parents, Robert and Sharon, of Two Hills, Alta., suspecting that she was brain-dead, had tearfully agreed to take their severely disabled infant off life-support systems at the urging of another doctor. The attorney general’s department alleges that Gal, a visiting resident physician in Edmonton (page 29), had decided, without consulting the Taschuks, to ease and speed the baby’s painful death with an injection of morphine 50 times the normal dosage. Reached at his mother’s home in Jerusalem, an anguished Gal demanded, “Am I the only one charged?” So far,

Gal is the first and only doctor to be charged with mercy killing in Canadian legal history. But, if he did it, he would by no means be the first to have done so. Euthanasia is classified as murder under the Canadian Criminal Code, but it is not an uncommon practice in Cana-

dian hospitals, and there is a growing public clamor to control it.

The need for clarification of the law is urgent. The rapid advance of life-prolonging medical technology has blurred the traditional meanings of life and death and raised new questions about which lives retain their human value. Expensive hospital machinery can now

extend life to those who previously would have been too sick to survive, placing an unwanted new burden of responsibility on the medical community. At the same time, death-with-dignity pressure groups urge doctors to “pull the plug” on the terminally ill and patients in a coma. And rights-for-thehandicapped advocates oppose any doctor who speeds the death of a patient incapable of making the choice for himself. The growing clamor has forced the day-by-day decisions about whether or not to terminate the life of the severely ill out of the shadows. In the past year doctors, judges, politicians and the families of patients near death have become embroiled in an uneasy debate over who should decide who lives and who dies.

The problem is growing. Eike Kluge, a professor of ethics at the University of Victoria, estimates that each year doctors and medical staff deliberately assist as many as 800 infants and comatose and terminally ill Canadians to die. The Canadian Association for the Mentally Retarded estimates that the num-

dá growing clamor has forced decisions about terminating the life of the severely ill out of the shadows

ber is closer to 1,000. Until now, mercy killers who practised euthanasia actively (for example, with drug overdoses) or passively (by withholding lifesaving medical treatment) did so privately, after consultation with relatives. But today citizens have flung the doors open, goaded by the fear that without more control over medical decision-making they could someday become a doctor’s abandoned experiment or an “artifact human” kept alive by medical technology. The public’s clamor for more comprehensible and accountable decision-making is long overdue according to George Grant, philosopher and professor of political science at Dalhousie University in Halifax. Said Grant: “A society that fails to see the seriousness of these issues has given up the core of the Western tradition. I cannot think of a more important subject in the Western world.” North Americans are confronting that subject with accelerating frequency.

• In March, a B.C. court ruled that the parents of Stephen Dawson had the right to deny their retarded seven-yearold son a potentially life-saving medical operation. Four days later the B.C. Supreme Court reversed that decision.

• In July, Canada’s first court ruling effectively giving an individual the right to choose his or her own death emerged from a British Columbia Court of Ap-

peal decision. The court ruled against force-feeding an imprisoned Doukhobor woman, Mary Astaforoff (Astaforoff was starving herself to death in a religious protest). Solicitor General Robert Kaplan ignored the court’s decision and ordered Astaforoff force-fed and released from her prison last month.

• In October, Justice Minister Mark MacGuigan tabled in Parliament the Law Reform Commission of Canada’s controversial report, Euthanasia, Aiding Suicide and Cessation of Medical Treatment—and then hastily assured an anxious public that the government would not implement any of the recommendations immediately.

• Two weeks ago the U.S. justice department filed a lawsuit to determine whether a New York couple was improperly denying life-saving surgery to a handicapped newborn baby whom the press dubbed Baby Jane Doe.

Volatile notion: Underpinning the contradictory court rulings and inconclusive political response is the volatile notion of “triage,” the concept that a human life can be selected for extinction if it lacks “quality of life.” Triage used to mean the process by which battlefield doctors would give priority treatment to casualties who had a reasonable chance of recovery over those who would likely die. It has come to symbolize the coldblooded ranking of human life into those who are fit to survive and those who are not. Still, when patients determine their own fate, the public’s attitude toward euthanasia becomes increasingly tolerant: a

1979 Gallup poll reported that 68 per cent of those surveyed believed that doctors should not keep terminally ill patients alive when they formally ask to die. But the survey did not address the growing problem of patients who cannot decide for themselves—the very young, the retarded, and those in comas, like Karen Ann Quinlan, whom doctors have kept alive in New Jersey ever since she fell into a drug-induced coma in 1975.

In those cases the power of life and death passes to other hands by default. Because courts have lacked precedents and because medical advice heavily influences the actions of the patient’s family, the decision usually falls to the doctors. At one extreme of medical opinion are those who explicitly support

triage. Last year Dr. Scott Wallace, a former B.C. Progressive Conservative leader, proposed a national referendum on permitting elderly patients to volunteer for death in order to free up hospital beds. In a controversial speech in Toronto in May, 1982, then President of the Canadian Medical Association Dr. Leon Richard asked who should have priority when health care resources were limited and suggested, “those who will return to the work force, those who hold key positions in business or industry. . . .” Nor is the CMA’s own ethics committee uneasy about the issue. Said Chairman Dr. Arthur Parsons of Halifax: “Who is going to get into the lifeboat? Is it better to keep a severely retarded person alive or spend your tight resources on bypass surgery for a father of four?”

At the other extreme of medical opinion are pro-life doctors and nurses and allies of the handicapped, who argue that almost all life can have value. Speaking of baby Taschuk, Dr. Hugh Lafave, executive vice-president of the Canadian Association for the Mentally Retarded, commented: “They keep offering as an explanation that Candace would have been retarded anyway. Well, is that a reason for killing someone? The only reason I can see is that some doctor wanted to play God.” Still, controversial as triage is, it is already practised in Canadian hospitals. According to Nerina Robson, past president of the Manitoba Association for the Mentally Retarded, attending doctors denied one Winnipeg woman kidney dialysis last year, apparently because she had Down’s syndrome (she later died). Joseph Cawthorpe, a senior program staffer with the National Institute on Mental Retardation, charged that neglect in u some homes for the re| tarded in the Atlantic provinces allowed people ° to die by denying them basic medical treatment. One woman at the Cormier special-care home in Buctouche, N.B., died of lockjaw 2Jk years ago. Said Cawthorpe: “You have to work pretty hard at it for your patient to die of lockjaw in the 1980s.”

Denying people treatment because they are retarded contravenes the United Nations Declaration on the Rights of Mentally Retarded Persons, the code of the Canadian Psychiatric Association and the beliefs of many doctors. But it is a common practice.

Whether or not the Canadian public believes it is ethical will be the subject of intense debate this winter when the CMA-funded Task Force on Allocation of Health Resources, chaired by consumer advocate Joan Watson, opens the first of its cross-Canada public hearings on Jan. 12 in Toronto.

Morality: The vast majority of physicians are somewhere in the middle of the debate. They are uncomfortable with their terrible responsibilities but unsure that they can avoid them. Dr. John Anderson, a pediatrician with Halifax’s Izaak Walton Killam Hospital for Children, said with a sigh: “I have quite a bit of difficulty with the notion of ‘passive euthanasia’; you make an active decision not to support life. I am concerned that such decisions could escalate into actions that could be immoral.” But Anderson himself has taken those troubling actions. He admitted: “It makes me terribly uneasy. In one case, after I turned off the life-support system I had to listen for nine minutes for the toddler’s heart to stop beating.”

In the face of those awesome responsibilities, physicians are no more equipped to cope than anyone else. A survey reported in the March, 1983, edition of the CMA Journal that 68 per cent of doctors polled had not even read the

CMA Code of Ethics; in fact, they sought their ethical advice from their colleagues, who had no more background than they. As a result, they sometimes made life-and-death decisions on very subjective bases. “The child of economically comfortable parents has greater chances of receiving treatment,” reported Joseph Magnet, University of Ottawa associate professor of law, in a comprehensive 1980 study of Canadian medical practice concerning defective

newborns. Equally troubling was Magnet’s finding that not one doctor he surveyed could articulate the legal doctrine of informed consent, which gives patients the right to sufficient information to make decisions about their own treatment. In fact, several doctors told Magnet that the idea of informed consent was “nonsense.”

But even as the medical community struggles unhappily with the new moral questions, the courts are taking an in-

creasingly active role. The most dramatic example of the growing activism of the courts was the controversial battle last spring over Stephen Dawson (Maclean's, March 28). Stephen suffered severe brain damage shortly after his birth. In February, 1983, a shunt, which drained fluid from his brain, malfunctioned. A neurosurgeon, Patrick Murray, visited Stephen once. On the basis of that visit, Murray advised the child’s parents that Stephen would die painlessly if they denied him an operation for a new shunt. Later court testimony revealed that Stephen’s mother asked Murray to “put him to sleep.” B.C. social workers opposed the parents’ decision and placed the boy in Vancouver’s Children’s Hospital to await the outcome of a custody battle. On the basis of testimony from doctors like Murray, provincial court Judge Patricia Byrne awarded custody to the Dawsons—effectively denying Stephen the operation. The B.C. pro-euthanasia lobby hailed her decision as a victory for the concept of “dying with dignity.” Overturned: But the B.C. Supreme Court overturned the decision. Medical personnel from Stephen’s hospital, the Sunny Hill Hospital for Children, contradicted Murray’s testimony that Stephen was “semivegetative.” They pointed out that he could follow simple orders, throw a switch to start a toy train and was the only child in his ward

to be selected for music therapy. Mr. Justice Lloyd McKenzie ruled that “the court’s presumption must be in favor of life,” and Stephen received his slightly belated operation. Today, Dawson “is doing awfully well,” according to Maureen Harrison, Sunny Hill’s director of nursing. She added, “He is back in school and music therapy, and his vision seems to be getting better.”

Life and death: The second Dawson decision changed the course of life-anddeath decision-making, at least in legal theory. Said Prof. Ellen Picard, health law expert at the University of Alberta law school: “It has done wonderful things for jurisprudence in this country, giving us criteria and standards.” But there are those who criticize the direction in which the Dawson case pushed the medical and legal professions. Dermod Owen-Flood, a Victoria lawyer who acted as amicus curiae (adviser to the court) in the Astaforoff case, asserts that “courts are not suited for dealing with life-and-death questions with scientific overtones.” And Dr. John Crichton, chairman of the Canadian Paediatric Society’s ethics committee, regrets that the case may have involved the courts more deeply in the medical decision-making process. Said Crichton: “I’m absolutely clear that the courts are too cumbersome. Most shunts, for example, should be dealt with in a matter of hours.” Lafave of the CAMR disagrees. Said Lafave: “Clearly, doctors and families can be in

conflict over what to do. Courts can stay up all night, and have, to reach a decision if that is what is medically required of them. These are not only moral but also legal questions.”

But, as citizens demand clearer and more accountable medical decisionmaking, they are discovering that, despite the growing number of court precedents, the lawmakers themselves are still grappling with the basic issues. Said lawyer Flood: “The situation is still very muddy.” And no one fears the imprecision of the law more than the doctors who must make the decisions. Currently, few doctors write down DNR—“Do not resuscitate”—orders for

fear of legal liability. In_

stead, doctors and nurses try to communicate by codes written on the charts of dying patients.

Uncertainties: The

University of Alberta’s Ellen Picard submits:

“The medical profession wants clarification. They feed on their own uncertainties.” Because of that, the CMA, in co-operation with the law reform commission, the Canadian Public Health Association, the Canadian Nurses Association, the Canadian Bar Association and the Canadian Hospital Association, drafted a set of recommendations this fall in

an attempt to clarify issues such as cessation of treatment. The findings will be presented to each of the organizations for ratification this winter. Prof. Bernard Dickens of the University of Toronto’s law faculty says that the law reform commission’s recommendations, tabled in Parliament on Oct. 25, will also carry great weight even though they have not, and may never, attain force of law.

The conservative but controversial commission report reaffirmed many of the principles already enshrined in the CMA Code of Ethics: the principle of informed consent; a patient’s right to refuse treatment; and a doctor’s right to discontinue treatment if it is not in the “best interests” of the patient and - is not likely to be of therapeutic value (which theoretically would absolve doctors of the duty of supporting the life of a patient who did not want to live and whose condition they could neither cure nor improve).

Murder: The commission treats the explosive topic of euthanasia with particular care. It recommends that euthanasia should remain classified as murder under the Criminal Code. The commission argues that juries are already lenient with those who kill for compassionate reasons. As well, it says, changing the present status of euthanasia opens the door to abuse, such as offering murderers the excuse that their victims wanted to die. An example of the

confusion that could arise if the commission

had proposed widening the latitude of a euthanasia plea arose this year in California. Two doctors, Robert Nejdl and Neil Barber, faced murder charges because they had cut off the life supports of a patient after convincing his family that he had suffered irreversible brain damage. The deputy district attorney of Los Angeles, Nikola Mikulicich, told Maclean ’s that the prosecution viewed the case as an attempt by the doctors to cover up their own negligence in caus& ing the patient’s condi-

tion. But last month, after months of legal debate, an appeal court dismissed the charges.

While lawmakers and professional organizations painfully grope toward clearer policies, hospitals are already turning to another source of help—patients’ advocates and hospital ethics committees, which provide considered opinions on problematic cases. At present there are only two hospital ethics committees in Canada, the older of which is at Foothills Hospital in Calgary. The media have hailed the committee as a pioneer, but its chairman, Rev. John Swift, points out: “We have no power. We are an ethics consultation service.”

Economics: As reforms point physicians in the direction of more responsible and accountable decision-making, the financial limitations of the health care system drag them back to the prospect of triage. Said CMA ethics committee Chairman Parsons: “If you keep severely retarded kids alive, what do you tell the dialysis patients when you cannot afford their treatment?” The CMA insists that underfunding is forcing doctors to make economic triage-type decisions with increasing frequency. CMA spokesman Douglas Geekie suggested that one solution is to permit hospitals to raise needed revenues by extra-billing their richer patients—a practice that Health Minister Monique Bégin assailed once again last week. But permitting the wealthy to jump the queue while the ailing poor get sicker is just another form of triage, argued Victor Marshall, professor of behavioral science at the University of Toronto.

As the debate over whose life is worth fighting for continues, so does the pace at which changing technology presents a host of frightening new challenges to traditional human ethics. Medical triage is not the worst of them. Almost a decade ago the Institute of Society, Ethics and the Life Sciences at Hastings-on-Hudson, N.Y., advanced the provocative suggestion that brain-dead patients might be kept physically alive for “harvesting” of blood plasma, bone marrow and organs for transplants. After posing the ghoulish possibility, the institute’s president, Dr. Willard Gaylin, warned that his suggestion could come to pass unless people finally tried to define what they meant by “human” and “alive.” Added Gaylin: “There are no easy answers to these complex and painful questions.” And those who seek answers at all, like Dr. Nachum Gal, often find that they have simply opened a Pandora’s box.

With Jackie Carlos in Toronto, Rita Christopher in New York and Diane Luckow in Vancouver.