When should hospitals take away a person’s right to make end of life decisions?
This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre. The parents want their terminally ill child discharged from the hospital to die at home. The hospital refused. The parents lost at the Health Care Consent Board and lost their appeal in court (FN1). Without commenting on this very sad case it once again raises the issue of who has the right to make life ending decisions for people who are not capable of making those decisions themselves. Should it be the parents of a child or the hospital? If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide?
A case in Ontario which dealt with this dilemma was Scardoni v. Hawryluck (FN2). Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”. So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life. The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.
Before analyzing the judge’s decision let’s review the law. The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A . Under section 10 (FN3) a doctor may not administer treatment unless he has the consent of the patient. It is arguable whether he needs the patient’s consent to withdraw treatment. Where the patient is incapable of giving his consent, pursuant to section 10, the doctor needs the permission for the recommended treatment from the Substitute Decision Maker who was designated under the power of attorney for personal care or alternatively by statute. If the Substitute Decision Makers will not consent to the doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.(FN4) Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice (FN5). That is what happened in Scardoni v. Hawryluck. The Capacity Board directed the daughters to follow the advice of the doctor. The daughters refused to go along with the doctor who wanted to take their mother off the ventilator and instead appealed the Board’s decision to the Ontario Superior Court of Justice.
The Scardoni v. Hawryluck case was decided by Justice Cullity. He had to decide whether the Power of Attorney was specific enough to indicate the mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation. The hospital’s lawyer argued that the power of attorney was too vague because the mother could not have known about how painful and hopeless her situation would be. Given that their mother’s instructions were unclear, the doctor argued that the legislation directed the daughters to make their decision based on what was in the best interests of their mother. The doctor argued that it was in the patient’s best interest to withdraw treatment because the mother no longer had any quality of life. While Justice Cullity agreed that quality of life was a factor in determining the best interests of the patient, he still granted the daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.(FN6) In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.
This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.
Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.
FN1. For newspaper reports on this story I refer you to http://www.nationalpost.com/related/topics/index.html?subject=Capacity+Board+of+Ontario&type=Organization
FN2. Scardoni v. Hawryluck 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700
FN3. Section 10 provides that treatment shall not be administered unless the doctor is “of the opinion that the person is capable with respect to the treatment, and the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act
FN4. The principles for making decision by a Substitute Decision maker is set out in section 59 of the Act. A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles: 1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish. 2. If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient’s best interests. Under section 69(3) in determining whether the substitute decision-maker complied with section 59, the Board may substitute its opinion for that of the substitute decision-maker
FN6. Section 10 provides
A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.
In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 – 41. Justice Cullity said as follows:
The first question is whether s. 10(1)(b) imposes an obligation on a health practitioner to obtain the consent of the substitute decision-maker to a decision to withdraw, or withhold, particular treatment. Notwithstanding the inclusion of such proposals in the definition of a “plan of treatment” and the inclusion of such plans in the definition of “treatment,” Mr. Underwood suggested that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. While a proposal of a plan of treatment that includes a withdrawal, or withholding, of one or more particular treatments would be a proposal of treatment within the opening words of s. 10, the obligation “not to administer treatment” would, on this interpretation, apply only to positive steps to be taken to treat the patient’s condition. On this line of reasoning it would follow that a substitute decision-maker’s consent – or, presumably, that of a capable person – to a withholding of treatment is not required by s. 10(1) and, to that extent, in Mr. Underwood’s submission, the Act does not alter the common law..
In other words, arguably, doctors do not need permission to withdraw or withhold treatment.