R.K. v London Health Sciences Centre ^[21]

R.K. an eighty-three year old man was admitted to the London Health Sciences Centre in Ontario in 1997 as the result of an epileptic seizure and respiratory distress. While he was in Intensive Care, he was placed on a mechanical respirator. His medical record indicated he had high blood pressure and experienced several strokes prior to his admission. Approximately two weeks after he first came to the hospital, it was recorded by his attending physician that he was conscious, alert and able to communicate with signs or by mouthing words. He was unable to speak due to a tracheostomy. His breathing difficulties continued.

Shortly afterwards, R.K. was found in an unresponsive state. Repeated neurological exams indicated a lack of brainstem function. R.K did exhibit some capacity to breathe on his own, but this was described by his physician as “weak and feeble.” A CAT scan indicated severe injury and death of brain cells. R.K.’s physician informed the family that his patient was “one small step from death, “ and that any possibility of recovery was non-existent. However, R.K did not meet the generally accepted medical definition of death because of what was termed an “agonal breathing response,” on certain respiratory tests.^[22] R.K continued to receive mechanical ventilation and tube feeding. His physician deemed that there was no medical justification for maintaining life support. The patient’s wife and son would not initially provide consent for a discontinuation of this treatment, although they had consented to the placement of a DNR Order. The London Health Sciences Centre went to the Ontario Court of Justice to obtain an order which would allow them to discontinue life support. The hospital wanted the court to grant them immunity from any criminal or civil prosecution if they should stop life-sustaining treatment for R.K.

The court dismissed this application, saying it had no jurisdiction to provide immunity to the Health Sciences Centre or R.K.’s doctors against criminal proceedings. Furthermore, the hospital and its physicians did not have a right to legal immunity from any kind of civil suit in this matter.

This was a complex situation, but what is worthy of the attention of those concerned with the rights of patients and their advocates is that a distinction was made in the courts between consenting to a DNR Order, and consenting to the withdrawal of life-sustaining treatment. The patient’s family had agreed to not resuscitate R.K. if he should undergo cardiac arrest, but they were not willing to “pull the plug” on the machinery that was keeping him alive. The Ontario Court of Justice recognized this distinction and would not grant the hospital or the doctors immunity from any judicial procedures resulting as a consequence of removing R.K.’s respirator.

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21	For further details see [1997] O.J. No. 4128, DRS 98-00445.
22	IBid.

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