Sweiss v. Alberta Health Services et al., 2009 ABQB 691

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 25, 2009
• Citations: 2009 ABQB 691;(2009), 483 A.R. 340 (QB)

Sweiss v. Health Services (2009), 483 A.R. 340 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.008

Ahmed Sweiss & Samir Sweiss by his next friend (Ahmed Sweiss)

(applicants/plaintiffs) v. Alberta Health Services and Royal Alexandra Hospital and Dr. Randall G. Williams (respondents/defendants)

(0903 15198; 2009 ABQB 691)

Indexed As: Sweiss v. Alberta Health Services et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

September 25, 2009.

Summary:

The Sweiss family, on behalf of their father, applied for an injunction to (1) discontinue a "do not resuscitate" (DNR) order of the father's doctor; and (2) prevent any doctor from removing a mechanical ventilation machine from the father.

The Alberta Court of Queen's Bench granted an interim injunction preventing the removal of the mechanical ventilator until 4:00 p.m. on September 30, 2009 (the September 25, 2009 order). The injunction's purpose was to allow the family to obtain an independent assessment regarding their father's condition. The court refused to lift the DNR order as it was in the father's best interests that there be no attempts at resuscitation in the event of a cardiac failure. The court delivered its decision orally and reserved the right to provide written reasons. While written reasons were pending, an agreement was reached allowing the removal of the mechanical ventilator and the court allowed the parties' request for an order terminating the September 25, 2009 order as of 2:00 p.m. on September 30, 2009.

Injunctions - Topic 1600

Interlocutory or interim injunctions - General principles - General principles respecting grant of interlocutory or interim injunctions - The Alberta Court of Queen's Bench stated that the courts appear to strictly apply the three part test outlined in RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général) (S.C.C.) for granting an interlocutory injunction - However, the three step approach was never intended to be inflexible in its application - The decision in British Columbia (Attorney General) v. Wale (B.C.C.A.) stood for the proposition that there need not be strict adherence to a formula and that the fundamental consideration was whether the granting of an injunction was just and equitable in the circumstances of the case - See paragraphs 54 to 56.

Injunctions - Topic 1600

Interlocutory or interim injunctions - General principles - General principles respecting grant of interlocutory or interim injunctions - The Alberta Court of Queen's Bench stated that on an application for an interlocutory injunction in the context of a life threatening situation, the traditional three part test outlined in RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général) (S.C.C.) was inappropriate - The proper test to be applied was what was in the patient's best interest - That inquiry required that several matters be considered and weighed, including (i) the patient's medical condition; (ii) the recommended medical treatment; (iii) the patient's wishes and beliefs; and (iv) what was just and equitable in all of the circumstances of the case - The list was not exhaustive - No factor was to be considered paramount and all considerations were to receive equal weight - See paragraphs 49 to 65.

Injunctions - Topic 1923

Interlocutory or interim injunction - Practice - Application - How made - The Alberta Court of Queen's Bench stated that, in the context of an urgent life-threatening situation, the current practice of commencing an application for an interim injunction by way of statement of claim was not the proper procedure - Rather, in the context of a medical urgency, or in other similar situations, the proper and appropriate process was found in Parts 30 and 33 of the Rules of Court - Such applications necessitated timely decisions and could not be left to linger for months - The rules contained in Parts 30 and 33 permitted the court to meet the special needs associated with the applications - Injunctions in that context were not sought with a view to preserve the status quo pending further litigation - Rather, such an injunction was akin to a final determination of the matter because the court's decision was often linked to life or death - The procedure in Parts 30 and 33 was more consistent with the objectives associated with the injunctions and allowed the court more flexibility and discretion - See paragraphs 27 to 42.

Injunctions - Topic 5908

Particular matters - General - Medical treatment in life threatening situation - [See second Injunctions - Topic 1600 and Injunctions - Topic 1923 ].

Injunctions - Topic 5908

Particular matters - General - Medical treatment in life threatening situation - On an application for an interlocutory injunction in the context of a life threatening situation, an issue arose respecting what consideration was to be given to a patient's wishes, beliefs and values where they were contrary to the course of treatment recommended by the health care provider - The Alberta Court of Queen's Bench stated that a patient's direction regarding treatment was a factor that had to be considered - Whether the patient's wishes and direction were grounded in religious belief or otherwise made little difference - However, religious beliefs could never be allowed to trump all other opinions or principles in determining what was in the patient's best interests - Where possible, the patient's wishes or religious beliefs were to be given considerable weight, subject, however, to the patient's best interests - See paragraphs 43 and 44.

Injunctions - Topic 5908

Particular matters - General - Medical treatment in life threatening situation - On an application for an interlocutory injunction in the context of a life threatening situation, the Alberta Court of Queen's Bench addressed the implications of a directive under the Personal Directives Act on the medical personnel or service providers - The court reviewed the provisions of the Act and concluded that a high level of importance was placed on the wishes of the individual making the personal directive - Given the mandatory wording of s. 19(1), it appeared that where a personal directive with clear instructions conflicted with recommended medical treatment, the wishes, directions and instructions of the patient were to prevail - That drafting reflected the fact that the legislature only contemplated that personal directives would state that no extraordinary measures be taken to keep a patient alive - The legislature did not appear to have anticipated that some directives would provide for indefinite life support - As the law currently stood, it appeared that if a personal directive directed that all possible measures be taken to keep the patient alive, whether or not the patient was brain dead or no longer breathing on his own, the direction had to be followed despite the fact that life support might be required for an indefinite period of time - See paragraphs 45 to 48.

Injunctions - Topic 5908

Particular matters - General - Medical treatment in life threatening situations - On September 25, 2009, the Sweiss family, on their father's behalf, applied for an injunction to, inter alia, prevent any doctor from removing a mechanical ventilation machine from the father - The father had signed a declaration stating that he practised the Islamic faith and followed all Islamic rules, including the Sharia law, and if something happened to him, he wished that all Islamic law be followed - The family asserted, inter alia, that the action's proposed by the father's doctor were inconsistent with their father's religious beliefs and wishes - The Alberta Court of Queen's Bench concluded that it was in the father's best interests to grant an injunction preventing the ventilator's removal until September 30, 2009 - The court relied on the doctor's evidence that there was still some brain function, although it was reflex brain function - Where the father's pain indicators were markedly decreased, leaving the tube in would not cause excessive, unwarranted pain - The injunction's short time frame respected the father's wishes and beliefs and was consistent with the Sharia law - This was so because the father's breathing had not stopped completely - The injunction would allow for an independent medical assessment - It was also recommended by a clinical ethicist - See paragraphs 66 to 68.

Injunctions - Topic 5908

Particular matters - General - Medical treatment in life threatening situations - On September 25, 2009, the Sweiss family, on their father's behalf, applied for an injunction to, inter alia, discontinue a "do not resuscitate" (DNR) order of the father's doctor - The Alberta Court of Queen's refused to lift the DNR order where it was in the father's best interest that there be no attempts at resuscitation in the event of a cardiac failure - The court accepted the doctor's evidence that active intervention would create substantial harm to the father and would be of no benefit to him - Further, the court should not force the doctor to go against the primary medical principle of doing no harm - It was inappropriate to discontinue the order where the doctor had specifically stated that he knew that there would be harm created if such an event was required to occur - The court also relied on the clinical ethicist's opinion that attempting CPR would very likely be harmful to the father and make his death less dignified - Allowing the DNR order to continue was consistent with the father's wishes and religious beliefs (the father followed all Islamic rules, including the Sharia law) - The extraordinary measure which would be required in the event of cardiac failure were clearly not in the father's best interest nor were they a reflection of his wishes or beliefs - See paragraphs 69 and 70.

Medicine - Topic 3004

Relation with patient - General - Non-resuscitation, termination of life support and personal directives - [See third Injunctions - Topic 5908 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, not appld. [para. 19].

Jin v. Calgary Health Region et al. (2007), 428 A.R. 161; 2007 ABQB 593, refd to. [para. 27].

Sawatzky v. Riverview Health Centre Inc., [1996] 6 W.W.R. 298; 132 Man.R.(2d) 222 (Q.B.), refd to. [para. 27].

Golubchuk et al. v. Salvation Army Grace General Hospital et al. (2008), 227 Man.R.(2d) 274; 2008 MBQB 49, refd to. [para. 27].

J., Re (A Minor), [1992] 3 W.L.R. 507 (C.A.), consd. [para. 27].

I.H.V., Re (2008), 449 A.R. 211; 2008 ABQB 250, consd. [para. 27].

Rotaru v. Vancouver General Hospital Intensive Care Unit et al., [2008] B.C.T.C. Uned. B11; 2008 BCSC 318, refd to. [para. 27].

Switzer v. Gruenewald (1997), 207 A.R. 391 (Q.B.), refd to. [para. 40].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), not appld. [para. 54].

Hubbard v. Vosper, [1972] 2 Q.B. 84 (C.A.), refd to. [para. 55].

British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R.(2d) 333 (C.A.), affd. [1991] 1 S.C.R. 62; 120 N.R. 208, refd to. [para. 55].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 8 [para. 31]; sect. 13(2) [para. 32].

Personal Directives Act, R.S.A. 2000, c. P-6, sect. 19(1) [para. 48].

Rules of Court (Alta.), rule 394 [para. 29]; 395(1) [para. 36].

Authors and Works Noticed:

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), generally [para. 23].

Counsel:

Mona F. Karout, for the applicants/plaintiffs, Ahmed Sweiss and Samir Sweiss by his next friend (Ahmed Sweiss);

Michael Waite, for the respondents/defendants, Alberta Health Services and Royal Alexandra Hospital;

David Steele, for the respondent/defendant, Dr. Randall G. Williams.

This application was heard on September 25 and 30, 2009, by Ouellette, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered oral reasons on September 25, 2009, and released the following written reasons on November 24, 2009.