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Attempted Suicide Is Not A Quasi Advanced Directive!

According to a recent news report, certain doctors in Quebec declined to revive patients who attempted suicide. Their rationale? The attempt to kill oneself constituted an advanced directive.1 I specifically am not commenting on any possible criminal liability, if any, because criminal law is not my expertise. But, as a lawyer who is certified as a specialist in estates and trusts law, I wholly disagree with the characterization of a suicide attempt as constituting an advanced directive. As a person who believes in the sanctity of life I take exception to the conduct of those doctors in Quebec.

The legality of who may decide to ask for a doctor’s help to commit suicide has been in the news of late. In 2011, two women challenged the provisions in the criminal code that criminalizes physician assisted suicide. That case is known as the Carter case.2 Canada’s Supreme Court (the “SCC”) decriminalized physician assisted suicide and set out parameters for when a doctor can respond to such a request. The test states that a competent adult can seek to have a physician assist in their death if the patient:

  1. clearly consents to the termination of his/her life; and
  2. has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to that person in his/her condition.3

Clearly there is a difference between what happened in Quebec when the doctors refused to offer treatment which would interfere with a suicide attempt and what happened in Carter where the patients sought doctors’ assistance to commit suicide. Nonetheless we can use the Carter case as a template for measuring the reasonableness of those Quebec doctors’ rationale for refusing to treat patients who attempted suicide. Arguably, a patient who is sitting on a gurney who attempted suicide may not have been capable to choose that path. The SCC qualified the permissibility of a person seeking physician assisted suicide by using the word “competent”. Ontario’s law regarding a patient’s right to refuse treatment is rooted in the same sort of idea.

I refer the reader to the section 4(1) of the Health Care Consent Act (HCCA)4. To paraphrase the test set out in the HCCA, a person may refuse treatment if he/she is capable. That means the person is able to understand the information that is relevant to making a decision about the treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Arguably, a person suffering from an acute emotional overwhelming trauma really does not have the faculties to “appreciate” the finality of suicide. Depending on the facts of the case there may be psychiatric issues that cloud the patient’s judgement or circumstances that overwhelm the patient who with time and counseling may no longer wish to commit suicide. In an article written by Dr. Kenneth I. Shulman, Ian Hull and Dr. Carole A. Cohen, “Testamentary capacity and suicide: an overview of legal and psychiatric issues5” the learned authors observe, that acute mental disturbances with impairment of higher-level/executive brain functions may affect impulsivity and the appreciation of consequences of one’s actions. Given the finality and extreme nature of the suicide option, the circumstances leading to that choice may have overwhelmed the ability of the patient to appreciate the option being taken. In other words the patients finding themselves in a Quebec hospital may not have had the competence / capability to make that decision. If that is correct then the litmus test should be what is in the patient’s best interest – which is to live. Would the patients agree? Let me tell the true story of one Ontario doctor who underscores the point. At the request of the doctor I decline to reveal the physician’s name or the hospital in which the incident took place.

A 19 year old woman was brought into the ER by her mother. She attempted to kill herself because her boyfriend dumped her. As the nurses tried to place the IV into the patient’s arm the young girl started flailing around and screaming saying she did not want treatment, she wanted to die. The nurses refused to put in the IV because, in their view, the patient had a right to refuse treatment. Perhaps, the nurses were legitimately concerned about going against a patient’s will. After all, the patient was alert & oriented x 3. This means that based on the medical professionals’ observations the patient was alert oriented to person, place & time. So what happened to this young woman who attempted suicide? The chief of the department suggested to the emergency physician working a regular shift that they wait until the patient lapsed into a coma. At that point, suggested the chief, it would be reasonable to assume that this young woman would not have anticipated how ill she has made herself. Accordingly, the doctors could then reasonably assume she might have changed her mind and hence any action to save her would be completely defensible. The other doctor did not follow the directions.

The emergency physician doing a regular shift was an Orthodox Jew. In this doctor’s view – if you wait for the patient to lapse into a coma, you may not be able to reverse it. The doctor asked the nurses to step aside and was prepared to risk whatever sanction followed in order to save the patient’s life. The physician spoke to the patient and said, “If God wanted you to die, he would not have made you come into the ER on my shift. Please allow me to put in the IV.” Said, the young woman, “God wants me to live?” She then extended her arm to the doctor who saved her life.

People of good faith can disagree. Even those strident opponents of Physician assisted suicide who value the sanctity and primacy of life sympathize and empathize with someone suffering from an incurable disease who is in agony and wishes not to prolong the dying process. But from the limited information in the National Post story that is not what happened in Quebec. It is also not what happened when this Orthodox Jewish doctor in Toronto acted contrary to the other medical professionals on the floor and insisted on trying to save the patient who attempted to commit suicide. This 19 year old woman was emotionally overwhelmed. Her profound sadness prevented her from seeing that this storm would pass, that she could meet someone else to love and to appreciate the sanctity of life. I genuinely don’t believe that someone in that space has the legal capacity to refuse treatment because he/she is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision. I believe that is why, in Carter, the SCC carved out the criteria it did before permitting a patient to seek out a physician’s assistance to commit suicide.

I applaud this Toronto Doctor for having the courage to save the patient. Bravo to Yves Robert, the Secretary of the Quebec College of Physicians, for describing the Quebec doctors’ behaviour as an “ethical breach”. Sadly, the College has no plans to investigate the doctors involved.6

  1.  National Post: Some Quebec doctors let suicide victims die though treatment was available: college
  2.  The following are the reported decisions in the Carter v Canada (Attorney General) case


  3.  2015 SCC 5 Carter at para. 127
  4.  Section 4(1) of the HCCA provides, “A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  1996, c. 2, Sched. A, s. 4 (1).”
  5.  Shulman, Hull and Cohen, Testamentary capacity and suicide; an overview of legal and psychiatric issues, International Journal of Law and Psychiatry, 26 (2003) 403.
  6.  National Post: Some Quebec doctors let suicide victims die though treatment was available: college
Toronto Estate Litigator - Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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