Doctor Averts Euthanasia Trial
For someone facing the prospect of being sent to trial on a charge of murder, Nancy Morrison appeared remarkably calm. As she stood to one side of a packed courtroom in Halifax last Friday morning, the 42-year-old respirologist spoke amiably with one of her defence lawyers. She smiled as she opened a brightly colored card - a message of good luck from one of her patients. In the end, it proved to be a very fortunate day for Morrison. In a terse, 16-minute oral ruling, Nova Scotia Provincial Court Justice Hughes Randall declared that the Crown had failed to provide sufficient evidence to commit Morrison to stand trial on the charge of first-degree murder - or any lesser offence - in relation to the November, 1996, death of Paul Mills, a terminally ill cancer patient. A few minutes later, the woman who had become the unwilling focus of a national debate over euthanasia following her arrest last May stood on the court-house steps and expressed her relief. "I'm very pleased," she told reporters, "but it's not the end. I've got further hurdles to jump."
What Morrison was referring to was the possibility that the Crown will resort to a rarely used provision - the preferred indictment - to proceed with a charge against her, despite Randall's ruling. The judge reached his decision after a five-day preliminary hearing into the prosecution's contention that the physician killed Mills by giving him lethal injections of potassium chloride and nitroglycerine after he was taken off life support at the intensive care unit of Halifax's Victoria General Hospital, now part of the city's Queen Elizabeth II Health Sciences Centre. Lead prosecutor Craig Botterill said the Crown is considering three options: appealing Randall's ruling to a higher court, sending the matter to trial through a preferred indictment, or doing nothing - in which case Morrison would face no further threat of criminal prosecution.
Beyond the courtroom, the Morrison case reignited a much larger national debate over the morality of so-called mercy killing, especially as it concerns physicians and their patients. In particular, it highlighted the fact that, under Canadian law, no distinction is made between killings motivated by compassion and those perpetrated by, say, a Paul Bernardo. Randall's decision, said Joel Pink, Morrison's lead defence lawyer, sends a clear message to parliamentarians that they need to amend the law to prevent other physicians from enduring similar legal ordeals. Added Pink: "They should sit down and take a long hard look at how to protect the doctors who care and support their patients through this terrible, terrible dying process."
With Randall's dismissal of the charge, a publication ban covering testimony about the "dying process" Mills endured was no longer in effect. The preliminary hearing - one part medical drama and one part legal whodunit - provided a fascinating glimpse into the medical endgames for pain-wracked dying patients that until now had been snugly hidden behind hospital bed curtains.
Under Canadian law, and according to ethical guidelines endorsed by the Canadian Medical Association, it is acceptable to withdraw terminally ill patients from life-support systems such as respirators if that is the patient's wish - or in consultation with family members in cases where the patient is incapable of consenting. Once life support is removed, medical staff are free to administer opiate and sedative drugs to ensure the patient's comfort in minutes or hours of death. There are no upper limits to the dosages - they can be increased as much as is required to relieve pain. And that can be done even though it is recognized that a secondary effect of those drugs may be to hasten death.
In Morrison's case, the police and Crown attempted to prove that she had crossed a clear ethical boundary by administering two drugs - nitroglycerine and potassium chloride - that had no value as painkillers but were widely known to induce sudden death by stopping a patient's heart.
Long before Nancy Morrison ever encountered Paul Mills, the 65-year-old Moncton resident was a tremendously ill individual who, by most accounts, had defied the odds by surviving as long as he did. Mills was first admitted to Moncton Hospital on April 8, 1996, where he was diagnosed with cancer of the esophagus. The following day, he underwent his first five-hour operation, during which his esophagus was removed and his stomach surgically stretched upwards about 12 inches and sewn in where the esophagus existed, thus allowing food to pass directly from his mouth to his stomach. After this procedure, two-thirds of his stomach effectively died and had to be removed in a second delicate operation performed on May 14. "It was only due to the great talents of the surgeons in Moncton that he survived" this procedure, Dr. Drew Bethune, a thoracic surgeon at the Queen Elizabeth II, told the preliminary inquiry.
Over the next six months, Mills endured eight more operations, six of them after being transferred to the Victoria General on Sept. 29. The surgeries were painful, complex - and in some cases, life-threatening. By mid-October, he was described by medical staff as being depressed and confused; he told at least one nurse he wanted to die. Mills required a respirator to breathe and during one three-week period - from Oct. 15 to Nov. 6 - he lost 41 lb. From the time of his 10th and final operation on Oct. 28, until his death on Nov. 10, he remained on a steady diet of Dilaudid, a synthetic painkiller that is five to eight times as powerful as morphine. "He was an incredibly sick, critically ill gentleman," said Elizabeth Bland-MacInnis, who served as Mills's bedside nurse in the intensive care unit. "The last few weeks of his life were certainly torturous."
On Nov. 6, a recurring chest infection that Mills had first contracted in July was declared incurable. Three days later, Bethune met with members of Mills's immediate family. They agreed he should be taken off life-support systems and that no steps should be taken to restart his heart if it stopped. By the morning of Nov. 10, Mills was no longer receiving antibiotics or food. A priest arrived at the bedside to perform last rites.
At 12:30 p.m., Mills was taken off the respirator. Dr. Barry Cohen, an internal medicine resident working in the ICU that day, told the preliminary inquiry that the normal response in such circumstances is for the patient to gasp for breath, the breathing rate to slow down and the heart to stop, signalling the patient's death. In Mills's case, said Cohen, "he continued to live and persist in a distressed state." In her testimony, Mills's bedside nurse described his condition in more graphic terms. Under Pink's cross-examination, Bland-MacInnis agreed that Mills's gasping and struggling for air was "a horrible and hideous scene." In her 11 years as a nurse, she said, "I had never seen a patient suffer to the degree that Mr. Mills did."
Mills immediately received dramatically higher doses of Dilaudid, morphine and other painkillers. Medical records show that at 12:35 p.m. he began receiving 100 mg per hour of Dilaudid - 10 times the 7 a.m. dosage. By 2:25 p.m., the dosage had escalated to 500 mg per hour. (In most instances, the drugs were being administered by Bland-MacInnis, following the verbal and written orders of two physicians - neither of them Morrison - to adjust the levels according to the patient's comfort levels.) Several medical witnesses called by the Crown agreed under cross-examination that those represented extraordinary amounts of narcotics, more than anything they had ever seen administered to a patient. Yet, they acknowledged, the drugs appeared to have no effect.
Bland-MacInnis testified that at 2:50 she had a discussion with Morrison about how nothing seemed to be alleviating Mills's suffering. Two minutes later, she said, Morrison returned to the bedside with a 10-cc syringe of clear fluid. When she asked Morrison what was in the syringe, Bland-MacInnis said she was told it was nitroglycerine to end the patient's suffering. When even the injection of nitroglycerine directly into the IV line failed to have any telling effect, Bland-MacInnis made what she recalled in court as a "facetious comment." She said she could not imagine what it would take to end Mills's suffering, unless it was KCl - potassium chloride - a naturally occurring compound that stops the heart if doses are high enough.
According to Bland-MacInnis, Morrison returned to Mills's bedside at 2:59 with another 10-cc syringe. When she asked Morrison what was in that syringe, she says she was told that it was KCl. Morrison again injected the syringe directly into the IV line, said Bland-MacInnis. Within a minute, the bedside monitor registered an absence of electrical activity in the patient's heart. Paul Mills was dead.
Shortly after 3 p.m., Cohen returned to the ICU from a half-hour lunch break. Informed of Mills's demise, he filled out the routine death certificate, listing the cause as a refractory thorax abscess - in other words, the chest infection finally killed Mills. The medical chart recorded that day made no mention of nitroglycerine or potassium chloride injections.
Four days later, however, Bland-MacInnis made a late chart entry, documenting what Morrison did during the final minutes of Mills's life. She said she did so on the advice of her unit manager, another nurse. Crown prosecutor Botterill asked her why she had taken so long to make the notations. "I was completely stunned by the events that transpired that afternoon," replied Bland-MacInnis. "Two drugs had been administered that I had personally never seen given in a situation like that before." She said she was also initially reluctant because she had no concrete proof of what was in the syringes other than what Morrison had told her. Under cross-examination, she admitted she had no way of knowing if Morrison had diluted the drugs and what concentrations were actually administered.
The court also heard from Helena MacKinnon, the charge nurse on duty the day Mills died, and nursing supervisor Paula Poirier. MacKinnon said she saw Morrison at the ICU medicine cabinet on the afternoon of Nov. 10, holding a vial of nitroglycerine in one hand and one of nipride - used to lower blood pressure - in the other. She said Morrison told her she was looking for something to drop the patient's blood pressure. Poirier testified that, after speaking with both MacKinnon and Bland-MacInnis, she contacted several senior hospital officials about the incident. She also spoke to Morrison and at one point asked her why she had administered KCl. According to Poirier, the doctor replied: "Oh my God, I don't know why."
The testimony of the nursing staff, and especially that of Bland-MacInnis, was crucial to Botterill's case; it provided the only firsthand evidence that a crime had been committed. The prosecutor tried to buttress that evidence by calling Geoffrey Barker, the chief of critical care medicine at Toronto's Hospital for Sick Children, as an expert witness. He testified forcefully that potassium chloride had no value as a medicine for relieving pain or discomfort in terminally ill patients. Administered in the alleged manner, he said, it was a fair assumption that "it's being used to hasten death."
The defence strategy became apparent during the cross-examination of Barker. Under the gentle prodding of Toronto lawyer Brian Greenspan - Pink's co-counsel on the defence team - Barker, like other witnesses before him, confirmed that the amounts of narcotics and sedatives given to Mills on Nov. 10 were "outside his experience" and were, in fact, potentially lethal in their own right. He also said that the fact the drugs had no apparent depressant effect on the patient's breathing or blood pressure was not what he would have anticipated. Finally, he agreed with Greenspan that it was "a real possibility" that the reason the drugs were having no affect was that the catheter tip from the IV had moved out of a blood vessel - and therefore the drugs were being delivered into a body cavity, from which it would take considerable time for them to be absorbed into the body. Neither the Crown nor the defence presented any evidence to suggest whether or not anyone had actually tested the IV line to see if it was working.
The defence got a further boost when New Brunswick forensic pathologist John MacKay testified about the results of an autopsy last November after the Crown ordered Mills's body exhumed. MacKay said that, because of their chemical properties, there was never any chance of the autopsy revealing whether Mills had received nitroglycerine or potassium chloride. But he confirmed to Greenspan that, given the amounts of Dilaudid and other painkillers introduced into Mills's IV, some trace of the drugs should have shown up in his liver. None did.
In his summation, Greenspan told Judge Randall there was only one rational explanation for why the massive doses of narcotics had no effect and did not show up in the autopsy: the IV line was not working. And if those drugs were not getting through, he said, neither could "the alleged KCl or nitroglycerine." There was simply no evidence, he argued, that Mills had died from anything other than natural causes. When it came to the allegations against his client, said Greenspan, "whatever the intention was, the act didn't occur."
In making his ruling, Randall did not refute or discount Bland-MacInnis's accounts of the alleged nitroglycerine and KCl injections. But he did cite several key pieces of evidence, including the testimony indicating that Mills had received "astronomical" amounts of other drugs; that the autopsy revealed no traces of Dilaudid or the other painkillers; and the possibility that the IV had dislodged. He said "the totality of the evidence" was such that "a properly instructed jury would not convict the accused on first-degree murder" or on lesser offences such as manslaughter or administering a noxious substance.
The preliminary inquiry did not consider in any detail how the hospital administration reacted in the days after Mills's death. Those actions reveal an intriguing clash between legal and medical imperatives and demonstrate how the medical fraternity - and an image-conscious hospital - will sometimes close ranks to protect its own.
After receiving reports of what Morrison had allegedly done on the afternoon of Nov. 10, the hospital ordered what is known as a peer review committee - made up of three ICU physicians - to investigate. After they concluded that what she had done was outside normal ethical medical practices and unacceptable, the hospital's most senior medical officials decided not to report the circumstances of Mills's death to the College of Physicians, or to the provincial coroner's office, or to the police. Instead, they opted to suspend Morrison from practising in the ICU for three months.
In letters to Richard Hall, director of ICU services, several senior medical staff warned that, when the details eventually came to light, the hospital would be accused of engaging in a coverup. Respirologist Art MacNeil took more decisive action. In a statement given to two Halifax police officers on March 27, 1997, MacNeil - who was only identified at the time as Dr. X - alleged that Morrison had performed "active euthanasia" by injecting a dying patient with nitroglycerine and potassium chloride. MacNeil, who was not in the ICU the day Mills died, said he based his knowledge largely on the peer review committee's report.
At the preliminary hearing, defence lawyers characterized MacNeil's statement as "hearsay." They also stopped the Crown from introducing the peer review report as evidence, convincing the judge that it represented confidential and privileged communications on the part of their client. And in questioning various police officers, the defence stressed that when 60 police officers raided the Queen Elizabeth II and arrested Morrison on May 6, 1997, they did so on the basis of two pieces of evidence: MacNeil's statement and a death certificate stating that someone had in fact died in the ICU on the day in question. The next day, they charged Morrison with first-degree murder. From the outset, Pink raised questions publicly about why the police had arrested Morrison before interviewing even one witness to the alleged crime.
In fact, the size of the police action last May, along with the nature of the charge against Morrison, provoked a wave of public support for the physician. A week after her arrest, Donald Schurman, president and CEO of the Queen Elizabeth II, received a letter signed by the hospital's ICU doctors stating that they wanted to "reassure the hospital administration and the community at large that we know Dr. Nancy Morrison to be a caring and competent physician." Ironically enough, Art MacNeil was among the nine doctors who signed that letter. Meanwhile, 5,000 people signed a petition demanding that the Crown drop its prosecution of Morrison.
In November, Botterill said the Crown had decided "it was not in the public interest" to proceed with a first-degree murder charge, and would prosecute Morrison on the lesser charge of manslaughter. But in yet another twist, hinting at a profound disagreement on the prosecution side, the police refused to proceed on the lesser charge, meaning that the first-degree murder charge stood until its dismissal by the judge last Friday. In the days ahead, as the Crown considers whether to challenge Randall's ruling with a preferred indictment or an appeal to a higher court, such calculations of the public's interest will loom ever larger.
Paul Mills was taken off life support at 12:30 p.m. on Nov. 10, 1996. Court testimony revealed that, by the time he died 2 1/2 hours later, Dr. Nancy Morrison and two other doctors had prescribed extraordinary doses of medications in their attempts to ease his agony:
as much as 500 mg per hour of Dilaudid, a narcotic painkiller; recommended dosage is two to four milligrams every four to six hours. A prosecution expert acknowledged the dose given Mills was potentially lethal.
230 mg of Versed, an anesthetic and sedative; usual dose is five milligrams.
40 mg of morphine, a narcotic painkiller; usual dosage is five to 10 mg every four hours.
12 milligrams of Ativan, a sedative; recommended dosage is 0.5 to two milligrams.
Maclean's March 9, 1998