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Tuesday
Sep182012

Alberta court orders life support withdrawn for 2 year old in persistent coma

The Alberta Court of Queen's Bench released a ground breaking decision (Director v. D.L and M.B., 2012 ABQB 562) last week involving the withdrawal of life support of a two year old ("M") in a persistent coma.  M is an apprehended child in the care of the Director under the Child, Youth and Family Enhancement Act.   

The Director asked the court to exercise its parens patriae jurisdiction to determine the course of M's medical treatment.  M's parents are incarcerated, charged with aggravated assault, criminal negligence and failing to provide M with the necessities of life.

In May 2012, paramedics found M at her residence in cardiac arrest.  While resuscitated, she was placed on life support at the hospital where she has remained since that time.  M suffered a profound and irreversible brain injury as a result of the cardiac arrest.  All treating physicians believe that her state in a permanent coma on a breathing machine will not change and that she will not regain consciousness.  If M continues to receive life support, more invasive forms of treatment will be required, including a tracheostomy.  In addition, further life threatening infections may require escalation in her treatment.

The unanimous recommendation of M's treating specialists is that life sustaining therapy should be withdrawn.  M's parents oppose this recommendation by stating that their religious beliefs are that the ultimate course of M's life is determined by God's will and not by doctors.

The court concluded that there is a legislative gap permitting the exercise of parens patriae jurisdiction in that the governing legislation does not give the Director authority to make end of life decisions about apprehended children.

In considering what is in M's best interests, the court observed that the relevant caselaw reflects a general societal understanding that a life without awareness and totally supported by machines is not in accord with the best interests of any patient, including a child.  This is particularly clear where sustaining such a life requires invasive medical treatment and interferes with bodily integrity and human dignity.

While M's parents' religious beliefs are entitled to be considered, they are not determinative, particularly as M is too young to have made her own individual religious commitment.  The parents religious practices are properly limited where they are contrary to M's best interests in a fundamental way.

Another reason to place less weight on M's parents' position is that they are in a direct conflict with M's outcome given that further criminal charges may follow with her death.

This decision has been stayed pending an appeal which will likely be heard this week.

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