Who has the final say in end of life medical decision-making?

• Author: Wong, Peter S.L.
• Position: Feature Report on Law and the End of Life

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Golubchuk v. Salvation Army Grace General Hospital et al.

In Golubchuk v. Salvation Army Grace General Hospital et al. 2008, the family of an incapacitated 84-year-old Winnipeg man, Samuel Golubchuk, commenced a lawsuit challenging the decision of the Salvation Army Grace General Hospital and physicians to disconnect his life support systems.

Mr. Golubchuk was undoubtedly very ill. He had a history of severe brain injury, kidney failure, untreatable heart condition, pneumonia, and high blood pressure. He could neither speak nor walk and was fed through a feeding tube in his stomach. His breathing was assisted by and possibly dependent on a ventilator. Some physicians expressed the view in the medical records that Mr. Golubchuk was dying.

However, the extent of Mr. Golubchuk's remaining brain function was disputed. The hospital's ICU director opined that Mr. Golubchuk was neither conscious nor responsive to stimuli and that his brain functions were minimal and basic. Similarly, an expert neurologist retained by the Hospital and physicians described him as being barely above the vegetative state. In contrast, a neurologist retained by Mr. Golubchuk's family opined that he had enough brain function to be considered awake and to make frequent, purposeful movements and engage in purposeful activities.

In January 2008, the Manitoba Court of Queen's Bench granted an injunction preventing the medical team from withdrawing Mr. Golubchuk's life support until trial on the basis that it was "just and convenient" to do so. In particular, the Court was of the view that:

* if life support were withdrawn and Mr. Golubchuk died as a consequence, then any monetary compensation awarded at trial would not adequately compensate him or his family;

* protecting Mr. Golubchuk's opportunity to have his case heard while he was alive outweighed the inconvenience to the physicians of continuing to provide treatment against their ethical concerns;

* it was desirable to maintain the status quo as doing so would only continue treatment that once presumably accorded with the physicians' ethical concerns; and

* patients who disagree with their physicians should have the opportunity to have those disputes mediated by knowledgeable, trained, and objective mediators or adjudicated by the Court.

Mr. Golubchuk died before his trial was heard. Nonetheless, the injunction proceedings are significant for raising, but not answering, fundamental legal issues about who has the final say in withdrawing life support when the medical team is of the view that it is no longer appropriate.

The Role of the Court

One of the issues before the Court was the proper role of a court in end of life medical decision-making. The Hospital argued that the role of the court was limited to determining whether the medical team had the right to decide to withdraw life support and whether it had taken appropriate investigative steps. That is, if the physicians reached the decision to withdraw life support in conformity with medical standards of practice, then the Court ought to defer to the physicians' expertise.

The Court, however, viewed its jurisdiction more broadly as making factual determinations and advising of the legality of disputed decisions before the patient's death. This is significant as it suggests that physicians do not have the final say in whether to withdraw life support. Rather, the recommendations of physicians are but one factor to be considered in a broader legal framework of patient rights when deciding the legality of withdrawing life support.

The Importance of Consent

One of the...