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Feb. 22, 2008
Judge sides with family
Interim injunction ordered in life support case.
RHONDA SPIVAK
This decision isn't just for my dad, but for every elderly or handicapped person. It's not just a decision for a Jewish person, but for everyone," said Percy Golubchuk.
In a decision rendered on Feb. 13, Justice Perry Schulman of the Court of Queen's Bench granted an interim injunction that prevents doctors at the Grace Hospital in Winnipeg from removing Golubchuk's father – Sam Golubchuk – from life support, a move that would have violated his family's wishes and religious beliefs.
The hospital had taken the position that Golubchuk had minimal brain function and the decision to remove him from life support ought to be made solely by treating physicians, and not the courts. However, Schulman ruled that, on the contrary, in a situation where doctors make a decision to remove a patient's life support without the family's consent, there is a role for the courts to play in adjudicating the factual and legal issues in dispute.
Schulman found that, since doctors are not infallible and can on occasion make mistakes, a patient's family has the right to seek redress through the court system. This is particularly appropriate in situations where the family has not had the opportunity to avail itself of independent third party mediation. Schulman concluded that, in this case, "there was no evidence" to suggest that mediation was available or offered to the Golubchuk family.
The injunction preventing the hospital from removing Golubchuk's life support will remain in place until there is a full trial of the case. A trial will involve the appearance of two medical experts who dispute Grace Hospital doctors' contention that Golubchuk has minimal brain function. Until a trial takes place, Schulman has ruled that the hospital needs to provide Golubchuk with antibiotics, blood transfusions and CPR in the event that such a need arises.
"He [Golubchuk] is entitled to have full medical care as required until trial," said Schulman, who also ruled that a copy of his court order be attached to Golubchuk's medical chart to ensure that every doctor, nurse and health-care worker properly abides by it.
A teary-eyed Miriam Geller, Golubchuk's daughter, and his son, Percy Golubchuk, said that "Our dad would be very proud of us."
Golubchuk added, "Doctors don't always know everything. God is the top doctor. Doctors are just his assistants."
Schulman found that if Golubchuk's death was hastened before a full trial, "no relief at trial could adequately compensate him or his family for the loss."
"If the injunction is continued, the plaintiff may, during his lifetime, be afforded an opportunity to be heard fully on his legal, religious and charter positions," he said.
Schulman said he wants to see the matter come to trial as quickly as possible.
The Winnipeg Regional Health Authority, the agency that oversees the hospital, said in a statement that it's reviewing the decision.
"We do want to say that decisions to withhold or withdraw life-sustaining treatments are never easy and are not made lightly by medical experts," the agency said in a statement.
Neil Kravetsky, the lawyer for the family, said it is very possible that the case will not go to trial quickly because the hospital may decide to appeal Schulman's ruling to grant the interim injunction. The appeal would be heard by the Manitoba Court of Appeal and then, ultimately, the Supreme Court of Canada.
"In fact, it is possible that this case could get to the Supreme Court of Canada before a full trial is ever held. This is a precedent setting case," said Kravetsky, adding that this case will go on even if Golubchuk were to die before the trial, "because we have filed a civil lawsuit for damages" based on the hospital's behavior.
Kravetsky noted that "Golubchuk's condition improved some weeks ago and, since then, it is much the same. He is awake and is slowly being weaned off life support."
In his decision, Schulman said that a patient has the right to be free from medical treatment to which the patient does not consent. He said that the removal of Golubchuk's life support would involve "an interaction" with his body and would necessitate giving him narcotics when he was taken off his ventilator.
Schulman said that the removal of a patient's life support without his consent violates the patient's right to have control over his bodily integrity. However, Schulman said this right can be reasonably limited in a free and democratic society. An issue at the trial will be whether it is reasonable in this case for doctors to violate Golubchuk's bodily integrity by removing him from life support.
Rhonda Spivak is a Winnipeg freelance writer.
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