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Osgoode Hall Law Journal

Document Type

Article

Abstract

This article examines the circumstances in which life support can legally be withheld or withdrawn from adults. It analyzes the situation of patients who are both capable and incapable of making decisions, taking into account recent jurisprudence in Canada, the United States, and the United Kingdom. Where competence is not an issue, both law and modern medicine espouse a strong normative commitment to patient self-determination. However, when no clear indication of the patient's treatment preference can be ascertained because of decisional incapacity, then the question of terminating life support is much more difficult. The author describes and analyzes the two legal standards that have evolved in the three countries to guide treatment decisions: the substituted judgment standard, which has been particularly prominent in the United States, and the best interests test. Both have been problematic in application. With respect to the best interests test prevalent in Canada, the few analogous cases that have been decided to date have been marked by an emphasis on the single criterion of the presence or absence of non-relievable pain. The author concludes that while judgments will rightly be rooted in caution, Canadian courts can and ought to develop a more encompassing series of considerations to ground decisions about ending life support. The author then begins to develop principles that could guide decision making in this area.

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