Editor's note: Below are the two articles published in Ha’aretz, that exposed the Golubchuk case to the wider Jewish world back in 2008.

Lawyer Neil Kravestsky speaking at Etz Chaim Synagogue  before 200 people of different cultures on March 8, 2011 compared the 2008 Sam Golubchuk case to the biblical fight between David and Goliath. “And we won. David won,” said Kravetsky proudly.

The case of Sam Golubchuk and the  debate surrounding  a patient's right to life support, which was the first case in Canada where a hospital insisted on removing a  patient from  life support, against his family's wishes made international headlines in 2008. Three years later,  the case and the issues it raises continue to intrigue Jews and non-Jews alike.

The Synagogue’s Adult Education Program sponsored the debate between lawyer Neil Kravetsky, who acted for the Golubchuk family and Arthur Schafer, director of the Centre of Professional and Applied Ethics. The debate was moderated by Jack London, senior partner at Pitblado LLP and former dean of the Faculty of Law at the University of Manitoba.

In 2008, the family of Sam Golubchuk went to court to require Grace hospital to continue giving him life support, including a ventilator and feeding tube, in accordance with the family's religious beliefs. The hospital and his doctors had wanted to take him off life support because they believed there was no hope for recovery and he had minimal brain function. Golubchuk had been on life support since November 7, 2007.

Golubchuk's children, Percy Golubchuk and Miriam Geller, retained Neil Kravetsky to prevent the Grace Hospital from” pulling out the plug” from their father’s ventilator and feeding tube and violating their father's religious beliefs and hastening his death. 

On November 30, 2008, Justice Schulman issued an interim injunction preventing the hospital and the physicians from removing Sam Golubchuk from life support, ventilation, tube feeding and medication until there could be a complete trial that could be decided through the court or through a process of mediation. Neither a trial nor mediation took place because Sam Golubchuk died before that could happen.

Jack London gave a factual and informative introduction to the debate. He explained that the reasonable desires of a competent patient in terms of commencing or withdrawing life saving measures should be honoured by family and physicians and institutions, except when unnecessary or unhelpful care is requested.

“The law and medical ethics generally still frown on or prevent a third party, doctor or not, from assisting that individual to die, but there is no prohibition against refraining from providing care or terminating it if that is the wish and desire of a competent patient,” continued London. 

London presented some of the issues that would be covered in the debate. He said, “But what is to happen when a patient is unable to direct his/her own treatment and care? Who determines whether the patient has a sufficient amount or quality of life to save? Is there a difference between not beginning treatment at all and withdrawing treatment that has already started? How do you resolve an impasse when a consensus cannot be reached among all the players in a situation? Should the scarcity of medical resources be a factor to be taken into account?”

These questions touch upon a series of broad human, legal, scientific, ego-medical, ethical and religious issues, all of which could not be covered in Kravetsky’s 15 minute opening argument. Accordingly, Kravetsky used the details of the Golubchuk case as a starting point to discuss the issues in general and offer his point of view.

Kravetsky’s presentation was based on the question of “Who has the right to make end of life decisions when the patient can’t? The family? The doctors? The law?”

Presently there is no definitive legal answer to that question as there has never been a case that has actually gone to  trial  and adjudication because the patients have not  survived long enough, and the issues have become moot.

“Until there is some legislative direction based on some objective standard that can be used by the court or a decision made after a fair hearing by a neutral party, then my position is…the only position – the family,” Kravetsky proposed, in answer to the question of who has the overriding right to decide whether a patient is kept on life support or not.

“The foundation of a democratic society is that everyone has the right to self determination and to have his will respected. That is what separates us from dictatorships. I always believe that we have the right to accept or refuse treatment,” he added.

“I was shocked and angered by the position taken by the hospital. They were going to take a positive act to remove him (Sam Golubchuk) from life support and cause his death” when his son who had legal authority to act on his behalf was against this for moral and religious reasons.

“To me it offended every principle of Canadian democracy entrenched in our right to freedom of religion, our right to life and security, and that we should all be treated equally,”  Kravetsky declared.

Kravetsky believes “our bodies are ours to deal with and not somebody else’s to say what must be done to our bodies.”

“The doctors in Manitoba believe that they have the power to do exactly that – to tell us when we are no longer able to stay on this Earth,”added Kravetsky in disgust.

“Under a directive by the College of Physicians and Surgeons the doctors in Manitoba believe they have the power to withdraw or withhold life sustaining treatment … if in their opinion ... certain minimum standards of cerebral function are not present … if they consult with another doctor…. that patient should not be afforded to continue with life support or should be refused without any notice period,” Kravetsky said.

Kravetsky maintains that “until there is some uniform and objective standard a doctor should not be given the power to make that decision when the consent of the family is not given.”

“This directive is wrong…Doctor’s are not G-d. To allow well meaning benevolent people to make that decision alone without due process as to when our life should terminate without our consent is a dangerous thing…,” concluded Kravetsky.

In his rebuttal, Arthur Schafer recounted to the audience a number of true infamous stories where there were conflicts between the wishes of patients and the medical advice of doctors or between the wishes of the patient’s family and the medical advice of doctors or when disagreement existed between different family members. He suggested that in most cases it turned out to be the wrong decision to prolong the life of a patient in a near vegetative state.

Schafer’s rebuttal was based on the question “Where should one draw the line between prolonging life and death?”   

Schafer maintained that the Orthodox Jewish principle that says “every moment of every life is infinitely precious” is wrong, inhumane and unjust..

In reference to the Golubchuk case, Schafer believes “that none of Mr. Golubchuk’s health care benefitted him and that it shouldn’t have been given to him.”
Schafer challenged the audience, “Would you want your life prolonged by days, weeks, months or years if you were in a near vegetative state?”

If you are a competent adult, you can refuse or end treatment. You have the right to say no. But Shafer said, “A democratic society does not mean that you can tell doctors what to do, taking scarce health care resources away from others that could benefit from them.”

Shafer noted that “If we institute a system whereby once you are plugged in you can never be unplugged, there will be a very big incentive for doctors not to plug you in in the first place.” 

Schafer concluded by saying, “I don’t see the value of life which is merely your body living (with no conscious)… Doctors should not be obliged to give futile treatment without benefit (to a barely conscious patient)…It would be a waste of resources. It would be cruel and inhumane to treat anyone this way.”

Below are the two articles published in Ha’aretz, that exposed the Golubchuk case to the wider Jewish world back in 2008.

ORTHODOX FAMILY TAKES HOSPITAL TO COURT OVER FATHER’S LIFE SUPPORT

By Rhonda Spivak, published in H’aretz, January 11, 2008
http://www.haaretz.com/print-edition/news/orthodox-family-takes-hospital-to-court-over-father-s-life-support-1.237042

WINNIPEG, Canada - The family of an 84-year-old Orthodox Jew who is on life support says he is alert and improving after hospital doctors unsuccessfully tried to pull the plug on him over a month ago, against the family's wishes. The family of Sam Golubchuk went to court to require his hospital to continue giving him life support, including a ventilator and feeding tube, in accordance with the family's religious beliefs. The hospital has wanted to take him off life support because it says there is no hope for recovery and he has minimal brain function. Golubchuk has been on life support since November 7.

Golubchuk's children, Percy Golubchuk and Miriam Geller, retained legal counsel to prevent Grace Hospital from violating their father's religious beliefs and hastening his death.

"This appears to be the first case in Canada where a hospital has actually fought with a patient to take him off life support," said Neil Kravetsky, the family's lawyer. "Other cases haven't gone this far because the family has given in and the patient has died."

On November 30, Kravetsky was successful in getting an ex parte injunction (without notice to the hospital) on an emergency basis from Justice Perry Schulman that prevented the doctors from removing Golubchuk's life support.

"There is no evidence that Mr. Golubchuk is brain dead, and his heart is functioning independently," said Kravetsky.

After a Dec. 11 hearing, Dr. Bojan Paunovic, the director of the hospital's intensive care unit, submitted an affidavit in response to a question posed by Schulman regarding the method for withdrawing life support.

Kravetsky says that at this hearing, Golubchuk's "entire chart was not presented by the hospital, only some parts of it." He asked for and received the whole chart from the hospital after the hearing.

Kravetsky sent the chart to Dr. Daniel Rosenblatt, a critical care physician in New Jersey, and Dr. Leon Zacharowicz, a pediatric neurologist from New York. Both doctors filed affidavits this week in response to Dr. Paunovic's affidavit. These two affidavits will not be made public until Schulman rules whether they are admissible as evidence, since they were filed after the closing of the hearing of Dec. 11.

Kravetsky says they "ought to be admissible since I didn't have the hospital chart earlier." "There will be a hearing at two o'clock [today] before Schulman, who will decide on the admissibility of the two affidavits."

Schulman's final decision in this precedent-setting case will determine whether it is the patient and his or her family or the doctor who has the final determination over whether to withdraw treatment.

"From a halachic standpoint, what is at issue is at what point a person is considered to be a goses [a person in the final stage of dying]," said Rabbi Avraham Altein, the city's senior Chabad-Lubavitch rabbi who knows the Golubchuk family well. "When a person is a goses, you are not allowed to hasten the process of dying, but you don't have to prolong it.... According to Rabbi Bleich, from Yeshiva University in New York, a person is considered a goses if they cannot possibly live for 72 hours, even by using whatever machines modern medicine has available.

"This means that if Golubchuk were a goses and he wasn't on life support, we would not be required to put him on it. However, even when a person is a goses, if he is already on life support, then it cannot be withdrawn. There is no doctor that has said that if Mr. Golubchuk stays on life support, he won't last 72 hours, so it can't be said he is a goses."

Arthur Shafer, director of University of Manitoba's Centre for Professional and Applied Ethics is of the view that, if the case goes against the hospital, it could have a potentially harmful effect on the practice of medicine.

"If Mr. Golubchuk is in an irreversible vegetative state, then treatment is futile," said Shafer. "He could potentially be in this irreversible state for a very long time. If so, would the Orthodox Jewish community want to see tens or hundreds of thousands of people in Canadian hospitals kept alive for decades by ventilators and other machines? Is that how they want us to spend our scarce medical resources?...

"Ariel Sharon, who appears to be in an irreversible vegetative state, may be getting this kind of treatment, but if every Israeli got this kind of treatment, the whole state budget would be used up. Should every Jew really be kept alive like Ariel Sharon?"
 
 
ORTHODOX MAN IMPROVES AS DOCTORS BATTLE FAMILY OVER LIFE SUPPORT
 
By Rhonda Spivak, published in Ha’aretz, Feb. 2, 2008
http://www.haaretz.com/print-edition/news/orthodox-man-improves-as-doctors-battle-family-over-halting-life-support-1.238512
 
WINNIPEG, Canada - The family of an 84-year-old Orthodox Jew who is on life support says his condition has improved substantially after hospital doctors unsuccessfully tried to pull the plug on him over two months ago on the basis that there was no hope for recovery.

Miriam Geller says that her father, Sam Golubchuck - who is unwittingly at the center of a precedent-setting court case - is now "being weaned off life-support," and "is awake and holding our hands."

"The nurses have him up in a cardiac chair every day, a couple of times a day for two to three hours" and "a physiotherapist comes in regularly to do arm and leg exercises," she added.

Golubchuck is alive today only because his family was successful in getting an emergency ex parte injunction (without notifying the hospital) from Justice Perry Schulman that prevented the doctors from removing him from life support, a move that would have violated the family's wishes and religious beliefs. At a hearing on December 11, 2007, the hospital and doctors maintained that Golubchuck had minimal brain function.

Following that hearing, the family's lawyer, Neil Kravetsky, sought to file affidavits by Dr. Daniel Rosenblatt, a critical care physician in New Jersey, and Dr. Leon Zacharowicz, a neurologist from New York, that dispute the hospital's position.

"This appears to be the first case in Canada where a hospital has actually fought with a patient to take him off life support," Kravetsky told Haaretz last month. "Other cases haven't gone this far because the family has given in and the patient has died."

After a hearing on January 11, 2008, Justice Schulman allowed Kravetsky to refile edited versions of these affidavits so they could be admissible as evidence.

In his affidavit, Dr. Zacharowicz said that even according to entries in Golubchuck's medical chart made before December 11, "There is no evidence whatsoever that he is brain dead, close to brain dead, or dying, from a neurological point of view."

Zacharowicz concluded, "The decision of any medical professional to disconnect this clearly alive patient - whom medical records indicate is returning neurologically to his baseline, pre-admission clinical condition - is incomprehensible to me."

Justice Schulman will be allowing lawyers for the hospital to cross-examine Rosenblatt and Zacharowicz on their affidavits and to file additional affidavits in response. He has not made any final ruling in the case.

Lawyers for the hospital maintain that it is the sole right of the team of physicians to decide when to withdraw life support, and that this decision ought not to be in the hands of the courts.

On January 30, Manitoba's College of Physicians and Surgeons released new guidelines that became effective February 1. They state that the final decision to pull the plug on a patient lies with the physician.

The guidelines say that the minimum goal of life sustaining treatment is for patients to recover to a level at which they are aware of themselves, their environment and their existence.

In the event a physician and a family do not agree as to whether the minimum goal has been met, the guidelines provide that the treating physician must consult with one other physician and then communicate the decision to the family.

In the event that a patient could achieve the "minimum goal" but the physician concludes treatment should be withdrawn anyway, the physician must provide the patient's family written or verbal notice 96 hours before life support is stopped.
Kravetsky called the new guidelines "terrible."

"It's extremely suspicious that after taking three years to prepare these guidelines, the college would release them now and direct doctors to follow them immediately when the court is ruling on this very issue," he said.