Child and Family Services (CFS) v. R.L and S.H.L. ^[14]

On November 4, 1997, a three member panel of judges made a decision in the Manitoba Court of Appeal in the case Child and Family Services of Central Manitoba v. Raymond Lavallee and Susan Lorraine Hay

This case was brought before the Court as a result of an assault upon an infant who, at the time of the trial, was eleven months old. The injuries inflicted upon this child resulted in what was testified by experts in the trial to be a persistent vegetative state. The issue before the court was: whether or not the physician could enter a DNR Order on the infant’s chart over the objection of his parents. CFS had agreed with the doctor’s recommendation to place a DNR Order on the child’s file. However, when the parents refused to consent, CFS sought the approval of the courts. At the time, the police had not yet made an arrest in connection with this assault. Since a suspect could be charged with manslaughter ^[15] if the baby died within a year and a day of the assault, the judgement appeared to imply a question of good faith on the part of the parents around their objection to the placement of a DNR Order. This decision ruled that:

The Court holds it is for the doctor to determine whether or not heroic measures are to be used to maintain the life of a patient in an irreversible condition. Neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where, in his or her judgement, the patient is in an irreversible vegetative state. Whether or not such a direction should be issued is a judgement call for the doctor to make having regard to the patient’s history and condition and the doctor’s evaluation of the hopelessness of the case. The wishes of the patient’s family or guardians should be taken into account, but neither their consent nor the approval of the court is required. [16]

What is important to note here are the following implications:

	the Court encouraged but did not order physicians to take into account the wishes of the patient or patient’s family;
	this Order enables physicians to have the “final say;”
	this is contrary to other current trends in the healthcare community where decisions regarding the initiating or foregoing of treatment require the consent of the patient or appropriate substitute decision maker;
	this is also contrary to another decision made in the Supreme Court in Reibl v. Hughes which emphasized the importance of a patient’s participation in decisions regarding treatment and care. Some medical ethicists in Manitoba have addressed the outcome of that decision. Notable is the following comment made by George Webster and Pat Murphy, ethicists at the St. Boniface Hospital:
	Patients bear the burdens and consequences of these decisions. Therefore, the patient’s interests must always be at the centre of the deliberations. [17]

Any action taken by our courts regarding the placement and/or removal of DNR Orders has a lasting effect on future decision making. Arnie Peltz of the Public Interest Law Centre in Manitoba made this comment with respect to the Manitoba Court of Appeal ruling on Child and Family Services of Central Manitoba v Robert Lavallee and Susan Lorraine Hay:

As to the broader implications for persons with disabilities...there is a reason for concern. The case is about a situation of irreversible vegetative state, as illustrated by the tragic facts of the baby’s condition. However, as noted by the counsel for the Agency...there is no clear, bright line between this situation and many other possible situations involving people with less severe permanent disabilities. The Court appears to be saying that these are matters for the exercise of physicians, and if the physicians turn out to be wrong afterwards, then an action for negligence can be taken, directing the physician or his insurer to pay money damages to the estate of the deceased. [18]

This would seem to be cold comfort for those loved ones who survive this ordeal. Peltz also raises another concern, this one about the way in which the Court of Appeal made its decision. He states:

Despite the fact that this is a matter of concern to a wide range of groups in society, the court made its decision without hearing from any of these. Even the parties directly involved in the case did not have an opportunity to make an informed comment on this issue. [19]

Those who might be affected most by future implications of this decision were neither heard before the courts, nor, apparently, considered. It should also be noted that the Court refused to adjourn so that researched presentations could be shared on the matter of physician responsibility. A very important decision was made without any input from the community!

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14	As cited in the Dominion Law Reports (1997), 154 D.L.R. (4th) 409.
15	Assault causing death. See the Case Summary in the Health Law Journal Vol.7, 1999, 205-231, for further details.
16	"New Developments Regarding DNR Orders in Manitoba." Winnipeg: CCD Latimer Watch. Council of Canadians with Disabilities. 12 February, 1998.
17	Murphy, Pat and Webster, George. "A Question of Ethics." Winnipeg Free Press, January 3, 1998.
18	New Developments Regarding Do Not Resuscitate Orders in Manitoba." CCD Latimer Watch. Winnipeg: Council of Canadians with Disabilities. 12 February, 1998.
19	IBid.

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