Golubchuk is unable to communicate his wishes, but his family has come forward to speak on his behalf. Golubchuk was hospitalized for two years or more in Deer Lodge Care Facility, but when his condition worsened, he was transferred to the intensive care ward of Grace Hospital on Oct. 26, 2007. He has been there for the five months since.
On Nov. 30, his family obtained an injunction, without notice to the hospital or the physicians, restraining them from removing him from life supports. The issue before Judge Schulman when the matter came before him in February was whether the injunction should be continued to some undefined future date when a full scale trial will take place, with the attendant legal costs for all concerned, plus the continued care costs while the parties ready themselves for trial.
The Golubchuk family members believe that to detach Golbuchuk from life supports would be contrary to his and their deeply held religious convictions.
In determining whether an injunction should be continued, the judge is to consider the strength of the plaintiff's case, which requires consideration of other court decisions in similar cases. The facts in any two cases are never the same, but in an earlier case decided by the Manitoba Court of Appeal, Mr. Justice Kerr Twaddle wrote:
"Whether or not such a (non-resuscitation) order should be issued is a judgment call for the doctor to make, having regard to the patient's history and condition and the doctors' evaluation of the hopelessness of the case."
This statement accords with the physicians' understanding of the ethical principles guiding their conduct. It would seem that the law was reasonably well settled by the Court of Appeal back in 1997, but it has become unsettled by the decision in the Golubchuk case itself. Judge Schulman concluded that the Court of Appeal decision was distinguishable on its facts, and the law is not yet settled as to the right of the physician to end life supports.
The judge then turned attention to the other considerations in deciding whether an injunction should be continued, but he did so briefly, and in a cursory manner.
He stated that if Golubchuk's life were to be ended by the withdrawal of life supports, damages would be an inadequate remedy for the family. He did not consider that there would or should be no damages awarded against the defendants for ending a life hanging by a thread, with no possibility of any recovery.
The judge was obliged to consider the question of whether, if the trial ended in the defendants' favour, which seems likely, damages would be an adequate remedy for them. Judge Schulman simply stated that "no mention has been made by counsel for the defendants of damages as a factor in the defendants' position." While this is so, it is hard to ignore the reality that the per diem cost of maintaining a hospital bed is no small sum, particularly in the intensive care ward. This is a case where the public cost is a major factor. True, these enormous costs will not be borne by the physicians personally, or the hospital as an institution, but the cost of care is an economic burden to the health-care system of genuine magnitude.
Judge Schulman's written consideration of "the balance of convenience" took but five brief sentences in which he mentioned that "physicians might be compelled to continue to treat the plaintiff despite their ethical concerns." He weighed that against the possibility that the plaintiff may have the opportunity to be heard fully on his legal, religious, and Charter positions.
There is no explanation what religious or Charter issues are raised. Under the Charter, every citizen enjoys freedom of expression, but the citizen is not entitled to demand that society provide him with a soapbox. Similarly, while there is freedom to practise one's religion, that is not an entitlement to impose the cost of prolonging life upon others, particularly where that process violates the ethical principles of the physicians involved.
The Manitoba Human Rights Code prohibits discrimination on religious grounds, but the Golubchuk case is not about discrimination. The defendants do not seek to treat him in a different way than others. They propose to treat him in exactly the same manner they treat all others who find themselves in an equally hopeless medical condition.
Judge Schulman mentions, as a special circumstance in favour of maintaining the interim injunction, the fact that mediation of disputes could have been, but was not tried. However, this is a case where no compromise is possible. The contention is that detaching Golubchuk from life supports is contrary to his religious beliefs. What compromise is possible if that be so?
The reasons for decision contain an admonition to proceed to trial as quickly as possible, with the judge to "case- manage" the litigation. Good luck. My guess is the plaintiffs do not want an early trial. It will be surprising if there is a trial before the summer. In the meantime, the daily health-care costs, and the legal costs, continue to mount.
The judge opines that "most reasonably informed members of the public would support my finding on the question of irreparable harm and balance of convenience." On the contrary, to the extent that public opinion should weigh in the balance, the general public would be outraged to think that physicians are being forced to treat a patient in an ethically inappropriate manner, and at great public expense, for no discernible legal reason.
Charles Huband is a former justice on the Manitoba Court of Appeal.