TORONTO - A physician owes a duty of care to a female patient and not to a child she may conceive in the future, the Ontario Court of Appeal ruled Tuesday as it dismissed a lawsuit against an Ontario doctor filed on behalf of a child born with disabilities. Recognizing a duty of care by a doctor to a future child of a patient would affect the doctor's existing legal obligation, which is to the patient, a three-judge panel ruled in a unanimous decision. "Imposing a duty of care on a doctor to a patient's future child in addition to the existing duty to the female patient creates a conflict of duties that could prompt doctors to offer treatment to some female patients in a way that might deprive them of their autonomy and freedom of informed choice in their medical care," Justice Kathryn Feldman wrote on behalf of the three-judge panel.
One difficulty in dealing with the concept of medical treatment in Canadian criminal law is to reconcile some of the dictates of the Criminal Code, which have ancient origins, with the reality of modern medicine. Such a situation arises when we ask whether a surgical operation is prima facie legal or illegal. This may be considered a rather narrow and esoteric question, but it has and will become increasingly important with the development of modern medical technology. The initial presumption of legality or illegality may determine the final characterization of a given medical intervention as lawful or unlawful. This is particularly important in such areas as non-therapeutic human medical research and live-donor organ transplantation. This enquiry explores the present situation in Canadian criminal law with respect to the legality of medical interventions and makes some recommendations for change.
SOMERVILLE, Margaret A., 1942-, Consent to Medical care: A Study Paper prepared for the Law Reform Commission of Canada, Ottawa: Law Reform Commission of Canada, 1980, viii, 186 p. (series; Protection of Life Series; Study Papers), ISBN: 0662104528 Part 1: i-viii and 1-103
SOMERVILLE, Margaret A., 1942-, Consent to Medical care: A Study Paper prepared for the Law Reform Commission of Canada, Ottawa: Law Reform Commission of Canada, 1980, viii, 186 p. (series; Protection of Life Series; Study Papers), ISBN: 0662104528 Part 2: 105-186
Ms. Francine Lalonde moved that Bill C-384, An Act to amend the Criminal Code (right to die with dignity) be read the second time and referred to a committee: Mr. Speaker, I first introduced a private member's bill on the right to die with dignity in June 2005 . . . In fact, I introduced this bill so that people would have a choice, the same right to choose that people in other countries have. My conviction has grown stronger, and that is why I am introducing an amended bill on the right to die with dignity, Bill C-384. Briefly, it amends the Criminal code so that a medical practitioner does not commit homicide just by helping a person to die with dignity if the person continues to experience severe physical or mental pain without any prospect of relief or suffers from a terminal illness.