Legal focus in starved-toddler case shifts to parents

The two-year-old Edmonton child known only as "M" couldn't breathe or eat without machines. Her brain function had degraded.

And on Thursday night, after the doctors caring for her were granted legal permission to unhook her from a ventilator, she died.

The girl's parents, citing religious beliefs, had asked the Supreme Court of Canada Thursday morning for an order to keep her alive, even as they stood accused of putting her life in danger in the first place. Their motion for a stay was dismissed later in the day.

"This is incredible and tragic, all the different facts that have come together in this case," says Tim Caulfield, a professor of health law at the University of Alberta.

"Even assuming that M's parents think that their decision is motivated by religious beliefs and love for M, I am left with a concern that their decision may, in fact, be affected by self-interest" —Justice June Ross, Alberta Court of Queen's Bench

"You have the conflict between the doctors and the parents, the role of religion in this case, and what about life? Is it in the best interests of someone to live or die? So there's a sort of metaphysical aspect."

M's parents, both 34, face charges of aggravated assault, criminal negligence causing bodily harm and failure to provide the necessities of life.

The charges have not yet been proven in court.

With the child's death, however, it is possible authorities "could elevate the charges to manslaughter or second-degree murder," Caulfield said. He was speaking before the girl had died.

The potential benefit for the parents, had they been able to keep their child alive, wasn't lost on Justice June Ross, who made the initial ruling at the Alberta Court of Queen's Bench to unplug M's life support "as soon as reasonably possible."

In her decision last week, Ross wrote: "Even assuming that M's parents think that their decision is motivated by religious beliefs and love for M, I am left with a concern that their decision may, in fact, be affected by self-interest."

As Caulfield sees it, "what Justice Ross did was that she decided the court does have justification to make this decision, and then she decided to focus on the best interest of the child.

"In doing so, she recognized that you do consider religious factors, values, world views, not just medical issues," he said.

"She sensibly touched on those issues, but came back to the best interests of the child, and came to the determination it's in [the child's] best interests to stop sustaining life."

Precedent in Manitoba

A similar case occurred in 1997 in Manitoba, involving Child and Family Services of Central Manitoba, Caulfield said. That case dealt with a "do not resuscitate" (DNR) order sought by the health-care provider for an 11-month-old baby in a vegetative state.

The infant had suffered from shaken-baby syndrome and was likely to suffer further serious problems, doctors said. The order would mean that staff would not perform cardiopulmonary resuscitation, despite the parents' wishes, and the court agreed it was an appropriate decision.

Still, this case differs in an important aspect, Caulfield said.

"Here, we have more of an active decision that has to be made, which is: 'We're going to stop treating this patient and remove life support.'"

The possibility that M might have survived for a long period of time — even after being taken off life support — shouldn't change the fact that her parents could remain liable, said Peter Sankoff, a criminal law professor at the University of Alberta.

"It doesn't matter," Sankoff said. "If she would linger on and she goes on for five years, the fact that she lingered on doesn't change the nature of why she got there in the first place. And why should it?"

In this case, Sankoff suspected that the moment M dies, authorities would consider charges of either manslaughter or criminal negligence causing death.

The law and life support

As for the original decision regarding the removal of life support, the bottom line is that the best interests of the child should prevail, even when religion is involved, said Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights.

Milne, who teaches constitutional advocacy at the University of Toronto, gave the example of a 1995 case involving the Children’s Aid Society of Toronto and a Jehovah's Witness parent who objected on religious grounds to a life-saving blood transfusion for her infant.

"In some ways, it was similar because of the age of the child and the inability of the child to be able to articulate a point of view, particularly a religious point of view," she said. "The court was divided on how to analyze the Charter rights, but ultimately the parents are not able to have their religious freedom protected by the Charter, if that means denying medical treatment for the child."

The Supreme Court of Canada is also expected this fall to hear the case of Hassan Rasouli, a 60-year-old Toronto man who has been in a near-vegetative state for over a year.

Doctors recommended that Rasouli be taken off life support after his brain became badly damaged from an infection.

"The family fought it, and it turned out that the man's condition did change. He started to show signs of consciousness, signs of awareness," Milne said. "So at the centre of that is, who gets to make that decision? Is it up to the doctors or subsequent decision-makers? The family argued very strongly that the person should remain on life support."

But the possibly mixed motives of M's parents complicate an already complex case, Milne said.

"The parents are supposed to be making decisions on the child's best interests," she said. "Certainly, this is a horrible tragedy regardless of the decision."