CRIMINAL CASE

Criminal case

Abstract

Nancy B. Heimann case holding accords with case law and with the weight of academic and professional opinion. 4-'0 More noteworthy, however, is the judge's conclusion that certain provisions of the Criminal Code that seem to prohibit the withholding or withdrawal of life-sustaining treatment do not actually do so.11-'3 This judicial decision is probably the first in Canada on this point and for that reason alone worthy of consideration. Unfortunately, the case of Nancy B. does not finally resolve the conflict between the realities of contemporary medical practice and the criminal law and so highlights the need for amendments to the Criminal Code.

Criminal case

Nancy B. Heimann was a 25-year-old woman who had had generalized polyneuropathy for 21/2 years as a result of Guillain-Barre disease. Her motor paralysis made her dependent on a respirator, and her condition was not expected to improve. She had persistently requested that her respirator be withdrawn. A psychiatrist who had examined her four times found her to be competent to make medical decisions; however, the hospital in which she was a patient refused to permit the respirator to be disconnected. Nancy B. initiated a legal action for an injunction permitting her physician to withdraw the respirator.

Mr. Justice Dufour of the Quebec Superior Court granted the injunction. Nancy B.'s respirator was withdrawn, and she died on Feb. 13, 1992.1 Mr. Justice Dufour had to decide first whether the civil law2 permitted Nancy B. to refuse life-sustaining treatment and then whether the criminal law did. He concluded that the "logical corollary of [the] doctrine of informed consent is that the patient generally has the right not to consent, that is the right to refuse treatment and to ask that it cease where it has already been begun." (Nancy B. v. Hotel-Dieu de Quebec et al., 1992) Furthermore, this right encompasses the informed and freely given refusal of life-sustaining treatment, such as the use of a respirator.

Criminal law and life-sustaining treatment

To explain Mr. Justice Dufour's reasoning in the Nancy B. case we must review some provisions of the Criminal Code, including those governing murder and manslaughter,'4 criminal negligence,'5 counselling, aiding or abetting a person to commit suicide," 6 and consent to the infliction of death(Turabian, 2006).

Murder and manslaughter

A person who "causes" the death of a human being "directly or indirectly, by any means," has committed homicide. Case law holds that any nontrivial act that is a "contributing" (as opposed to a substantial or primary) cause of death "causes"l death.'8 Homicide amounts to murder or manslaughter if death is caused by an unlawful act or criminal negligence (discussed separately later).

Although the code does not define "unlawful act," case law suggests that it is an intentional act that, "viewed objectively, is likely to subject another person to danger of harm or injury." (Nancy B. v. Hotel-Dieu de Quebec et al., 1992)' To justify a conviction of murder, a person who causes death by an unlawful act or criminal negligence must also have had the intention to ...