Friday, October 25, 2013

Ontario Powers of Attorney for Care: The Courts' Role in End-of-Life Care Decisions

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally.  Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.
Our focus thus far in this week's series has been on the practical considerations in making an Ontario Power of Attorney for Personal Care. In this final instalment, we will now shift gears to look at the issues that can arise with end-of-life care decisions, and the role the Court assumes in such matters.

Where there is no appointed Attorney for Care, whose opinion counts?

A lack of clarity as to your end-of-life care wishes can seriously compromise your autonomy in making personal choices, and potentially create serious rifts among loved ones left to fill in the blanks on what is at best, well-intentioned guesses. The case of Terri Schiavo serves as a cautionary tale of the devastating consequences that can result where an Attorney for Care has not been appointed.

In February of 1990, Terri Schiavo suffered a full cardiac arrest that temporarily deprived her brain of oxygen, leaving her in a persistent vegetative state. As Terri had not appointed an Attorney for Care, her husband became her legal guardian pursuant to Florida laws, and took on the role of decision-maker for her medical care. He contended that Terri had expressed to him that she would not want to be kept alive through artificial means and accordingly would not want to be dependent on a feeding tube. Terri’s parents, however vehemently denied this to be their daughter’s wishes, arguing that as a devout Catholic, she would have instead held strong beliefs in the sanctity of life. A very bitter and public feud ensued between the parties when in 1998, Terri’s husband petitioned the Court to have her feeding tube removed.

The end-of-life care decisions of Terri Schiavo soon became a matter of public discourse with everyone from President George Bush to the Vatican weighing in on what was “appropriate”. What should have been a personal decision reflecting the values of Terri Schiavo, instead became a hot topic that divided the nation, “pitt[ing] culture-of life conservatives against right-to-die civil libertarians”[1]. In a highly unusual step, the “Schiavo Bill” (which later came to be known as the “Palm Sunday Compromise”) was passed to allow for Terri’s case to be reviewed by the Federal Court. However, despite this extraordinary measure and the countless appeals to both the court of law and the court of public opinion, Terri Schiavo’s feeding tube was removed on March 18, 2005. She sadly died shortly thereafter.

In reflecting on the ordeal, Michael Schiavo’s attorney infamously stated, ““no family…having to go through the death process for a loved one should have the added worry that a panel of judges is going to order an ambulance to come or that politicians are going to interfere with the death process that your loved one has chosen and has almost completed.” In what can only be described as a tragedy all around, the case of Terri Schiavo stands testament to the need for clarity in advance care planning.

Reconciling a Patient’s right to self-determination with a Physician’s ethical duty:

Pursuant to section 10 of the Health Care Consent Act, a health practitioner is required to obtain consent prior to administering any treatment on a patient. Such authorization may come directly from the patient, or, where the patient is deemed to be incapable it may be obtained from the appointed substitute decision-maker. As discussed earlier, an appointed Attorney for Care is to reach personal care decisions on your behalf on the basis of your directives, or where no such guidance is available, or simply impossible to follow, on the basis of what is held to be in your best interests.   

While the legislative framework surrounding consent to medical treatment is clearly defined, challenges arise when it is considered in context with a health care professional’s duty towards his or her patient. A modern translation of the Hippocratic oath that guides physicians includes a promise “to keep the good of the patient as the highest priority.”  Accordingly, health care providers in Ontario are able to seek recourse by way of making an application to the Consent and Capacity Board, where they have reason to believe that a substitute decision-maker is not acting in accordance with a patient’s best interests. Serious issues arise however where a medical opinion as to what is “good” for the patient cannot be reconciled with a substitute decision-maker’s assessment of “best interests”.

The controversial case of Samuel Golubchuk is one that brings this issue to the forefront.  Mr. Golubchuk was an 84-year old patient admitted to Winnipeg’s Salvation Army Grace Hospital with pneumonia and pulmonary hypertension. While his pneumonia was eventually cured, he remained in a severely weakened state such that he required life support in the form of a ventilator and feeding tube. As his condition deteriorated, physicians at the hospital took the position that further medical intervention would be futile and treatment ought to be withdrawn. His family however, maintained that doing so would be in violation of Mr. Golubchuk’s Orthodox Jewish beliefs. An interim emergency court injunction against removing life support pending trial was successfully brought by his children. Shortly thereafter, the Manitoba College of Physicians and Surgeons released a statement conferring physicians with the final decision to withdraw life support. 
In the brink of it all, Mr. Golubchuk’s attending physician resigned from the hospital on the grounds of medical ethics. In explaining his reasons, Dr. Anand Kumar stated,

“If we honestly attempt to follow the court mandate to focus on keeping Mr. Golubchuk from his natural death, we will likely have to continue to surgically hack away at his infected flesh at the bedside in order to keep the infection at bay. This is grotesque. To inflict this kind of assault on him without a reasonable hope of benefit is an abomination. I can’t do it.”

Unfortunately, as is often the case with end-of-life care litigation, the Court did not decide the underlying issue as Mr. Golubchuk passed away prior to the commencement of trial.  

Guidance from the Supreme Court of Canada: The Rasouli decision

In reflecting on how to conclude this article, I had initially planned on setting out the many uncertainties that remain in the law of medical consent and decision-making. Ironically, however, late last week, the Supreme Court of Canada released its decision in the case of Cuthbertson v. Rasouli, wherein it provided great clarity and direction on the question of who holds the authority to make end-of-life care treatment choices in Ontario.

On October 18, 2013, the Supreme Court of Canada dismissed an appeal brought by doctors of Hassan Rasouli to unilaterally end his life-support without the consent of his substitute decision-maker. In doing so, the Court addressed two very interesting issues surrounding medical consent.

Substantively, the physicians of Mr. Rasouli contended that the withdrawal of life support that does not provide any medical benefit to the patient does not require consent as it does not constitute a “treatment” as defined in the HCCA

In disagreeing with this position, the Court clarified as follows:

·          “Treatment” and “medical benefit” are two distinct concepts. Treatment is broadly defined as “anything that is done” for one of the enumerated purposes (therapeutic, preventative, palliative, diagnostic and cosmetic) or “other health-related purpose”. Medical benefit on the other hand is a reflection of the standard of care that a physician is to provide a patient in providing treatment.
·          “ ‘[T]reatment’ in the HCCA is broadly defined and therefore should be understood as extending to withdrawal of life support…[which] aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body and is closely associated with the provision of palliative care”
·          While the continuation of life support for a patient may place a physician in an untenable ethical position, such tensions are inherent to medical practice.

Procedurally, the Court was called upon to assess whether the Court or the Consent and Capacity Board (“Board”) was the appropriate forum for bringing challenges to consent decisions. In upholding the statutory framework of the HCCA, the Court held that the Board was the proper place to make determinations relating to consent to treatment for capable and incapable patients:

“[The] legal framework [of the HCCA], which aims at protecting patients’ autonomy and medical interests, has been used to resolve end-of-life disputes in Ontario for 17 years. Access to this established regime should not be closed off, casting these matters back into the courts.

“The HCCA does not neglect the role of health practitioners in the treatment of incapable patients.  First, where there is a prior wish by the patient, the attending physician may ask the Board to find that the wish is not applicable to the patient’s current circumstances (s. 35), or to permit a departure from the wish because the likely result of treatment has significantly improved since the wish was made: s. 36.  Second, if the physician feels that a substitute decision-maker has not complied with the HCCA’s rules for giving or refusing consent to treatment, he may challenge the consent decision by application to the Board: s. 37.  Such a challenge will generally focus on medical considerations within the s. 21(2) best interests analysis.  The physician’s views of what will medically benefit the patient are obviously critical to the Board’s determination of the patient’s best interests.  However, the HCCA gives the Board final responsibility to decide disputes over consent to treatment for incapable patients, based on an objective assessment of whether the substitute decision-maker complied with the requirements of the HCCA.” 
[Para 27]

This decision reflects the great respect the Court gives to the principles of autonomy and self-determination. In essence, it goes to empower substitute decision-makers, including Attorneys for Care, to exercise the authority conferred upon them. 

Simran Bakshi, Student-at-Law, Toronto

[1] Commented by Carl Cameron, chief political correspondent, Fox News

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