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
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.
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