Therapeutic homicide in a neonatal unit?
The Mary Dilemma: Case Study on Moral Distress
Sean Murphy*
The Canadian Fellowship of Catholic Scholars Journal published
an article in late 2013 about the moral distress suffered by a Catholic
nurse who witnessed the death of a newborn infant. The baby was allegedly
starved to death in a neonatal intensive care unit at a Toronto hospital
between 27 October and 22 November, presumably in 2012 or earlier.1
The
following summary is drawn from the article.
The story
"Baby Mary" had a difficult birth at about 35 weeks gestation and
experienced hypoxia. She was transferred to a neonatal intensive
care units in the Toronto area where she was found to have some brain
damage, the extent of which could not be determined. She had limited
movement in her right arm but movements were otherwise normal, and she
responded appropriately to stimulation. Her birth weight was appropriate for
her gestational age.
Her parents directed physicians to withdraw care from her a few days
after she was born, so she was removed from the ventilator. It was thought
that she would stop breathing, but she began breathing on her own and
maintained normal oxygen levels in her blood. Her condition was stable.
Ordinarily, feeds would have been slowly introduced, assisted, if need be,
by nasogastric tube, and she would have been sent home with her parents once
she was feeding well and gaining weight.
However, her parents told the physicians that they did not want a
handicapped child and that they wanted to leave her to die. The physicians
complied with their directions, transferring her to a level two nursery with
an order to "withdraw care." Nurses put her into a crib in a corner with a
screen around it. On 8 November she was fed for the last time: 40 mls.
quickly consumed from a bottle. A new physician ordered that she be given
“no stimulation” (i.e., no cuddling or holding) and phenobarbital for
comfort. The Journal article recounts the death of "Baby Mary" by
starvation over the next two weeks through diary entries made by the
Catholic nurse. It provides a vivid illustration of the conflicts of
conscience that can arise in such circumstances, and of the extraordinary
sense of isolation and vulnerability experienced by objecting health care
workers.
The Journal article does not disclose the names of the hospital
or the people involved "for reasons of confidentiality," and its focus is on
the moral distress of the Catholic nurse who provided the account. She
consulted with her spiritual director and with friends, and offered to take
the child home herself,but was rebuffed by a social worker who emphasized
the need to respect the parents’ wishes. We are told that she was afraid to
speak out because she believed she might lose her job, and had to speak
guardedly because of the attitude of some colleagues. One of them said she
had "no religious hangups" about doing as the parents wished; another wished
they could provide euthanasia.
However, it seems that a number of other nurses were as troubled as the
Catholic nurse. One of them asked a very pointed question: “[I]f they took
her home and didn't feed her they would be charged - why is it okay for us
to do this?"
Commentary
Indeed: had the parents taken Baby Mary home and refused to feed her,
anyone who was aware of it would have been legally obliged to report the
situation "forthwith" to child protection authorities. They, in turn, would
then have been obliged to take action to protect her. Child protection
authorities could, if need be, apprehend her with or without warrant,
calling upon police to assist with the apprehension if necessary.2
The key point is that, if Baby Mary was being starved to death as
reported by the Journal article, it was irrelevant that she was
being starved to death by health care professionals wearing white coats in a
neonatal intensive care unit. On the contrary: if she was a "child in need
of protection" - which, according to the Journal article, she was -
then every one of those professionals was obliged to immediately report what
was happening to the Children’s Aid Society, and their failure to do so was
an offence.3
Further: under Canadian law it would have been a criminal offence for the
parents and health care staff to deny food to an infant in the circumstances
described in the Journal article.4 To starve an infant to death in
the manner described would amount to at least criminal negligence causing
death,5 if not first degree murder.6
It is now too late for charges to be laid for failing to report a child
in need of protection as the limitation of action period has expired.7 On the
other hand, there is no limitation period for criminal negligence causing
death or murder, so it is still possible for police to investigate the
allegations and lay criminal charges if appropriate. Assuming that the
Journal article has accurately stated the dates of the birth and death
of Baby Mary, it should be possible to determine her actual identity by
searching Vital Statistics records for the months of October and November
from 2012 and earlier. Records of her birth and death would provide police
with the names of the parents and the institution where she died, and they
would then be able to pursue the investigation by questioning the authors of
the Journal article and health care workers involved with her care.
While the Journal article raises very interesting questions from
the perspective of freedom of conscience and religion for health care
workers, it is prudent to withhold further comment on the allegations until
it is clear what action, if any, will be undertaken by state authorities in
the Province of Ontario.
- Note: On 18 March, 2014, the Project Administrator sent
this information to the Toronto Police Service homicide section using the
email form provided on the Toronto Police Service website. Not
having received a response, on 25 March, 2014, the Administrator faxed a
letter and the information to Toronto Chief of Police William Blair.
Toronto Police acknowledged receipt of the information in a letter dated
27 March, 2014.
Notes
1. Penna MD, Burg-Feret F.
"The Mary Dilemma - A Case Study on Moral
Distress." Fellowship of Catholic Scholars (Canada) Journal,
Summer/Fall, 2013.
2. Under Section 37(2) of the
Ontario Child and Family Services Act, an infant being deprived
of food would be a "child in need of protection": that is, a child under 16
years old "likely to suffer physical harm" inflicted by her caregivers as a
result of their neglect or failure to adequately care for or protect her.
Section 72 of the Act imposes a duty on any person who even
suspects that a child is in need of protection to report the situation
"forthwith" to child protection authorities. Section 40 sets out provisions
for apprehension of children in need of protection. (Accessed 2014-03-17)
3. Section 72(4) and 72(5) of the
Ontario Child and Family Services Act explicitly extends the
offence of failure to report a suspicion to include professionals of various
types. (Accessed 2014-03-17)
4. Criminal Code,
Section 215 (Accessed 2014-03-18)
5. Criminal Code, Section
219, 220 (Accessed 2014-03-18)
6. Criminal Code,
Section 229,
231 (Accessed 2014-03-18)
7. Since the Ontario Child and Family Services
Act does not specify a limitation period, a six month period is set by
Section 76(1) of the
Provincial Offences Act (Ontario). (Accessed 2014-03-18)