In this paper, I review Canadian law in relation to the unilateral withholding or withdrawal of Potentially life-sustaining treatment, and I look at such questions as whether physicians are legally permitted to unilaterally put a do-not-resuscitate (DNR) order on a patient's chart. I explore who has the legal authority in Canada to decide on withholding and withdrawal of potentially life-sustaining treatment, and I conclude that unilateral withholding and withdrawal is a violation of the strong social commitment to dignity as it is understood and reflected in the law by the Supreme Court of Canada. I then offer a concrete proposal for institutional policy with respect to unilateral withholding and withdrawal of treatment in light of the law.
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References
1.
Criminal Code, R.S.C. 1985, c. C-46, s.215(1)(c).
2.
Criminal Code, R.S.C. 1985, c. C-46, s.219.
3.
R. v. Brooks (1902), 5 C.C.C. 372 (B.C.S.C.).
4.
Child and Family Services (Manitoba) v. R.L., (1997), 123 Man. R. (2d) 135 (C.A.).
5.
Sawatzky v. Riverview Health Centre Inc. (1998), 167 D.L.R. (4th) 359 (Man.Q.B.).
6.
Airedale Trust v. Bland, [1993] 1 All E.R. 821 (H.L.).
7.
Re London Health Sciences Centre v. K.(R.) (1997), D.L.R. 724 (Ont. Gen. Div.).
8.
Consent requirements in cases involving incompetent individuals whose prior wishes are not known (either because the individuals never were competent or they never conveyed their wishes), are grounded elsewhere but lie beyond the spatial scope of this paper. I would simply note here that the assault analysis is also inadequate for these cases and that a best interests analysis (rejecting the notion that health care providers have privileged knowledge and abilities with respect to assessments of best interests) can be developed from Supreme Court of Canada jurisprudence. See, for example: B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1. S.C.R. 315 [hereinafter Sheena B.].
9.
Schloendorff v. Society of New York Hospital, 105 N.E. 92 at 93 (N.Y. Ct. App. 1914).
10.
Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.).
11.
Reibl v. Hughes (1980), 114 D.L.R. (3d) 1 (S.C.C.).
12.
Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 at 135.
13.
Rodriguez v. British Columbia (Attorney General), [1933] 3 S.C.R. 519 [hereinafter Rodriguez] at 588.
14.
Rodriguez v. British Columbia (Attorney General), [1933] 3 S.C.R. 519 [hereinafter Rodriguez] at 588.
15.
Lavigne v. Ontario Public Service Employees Union (OPSEU), [1991] 2 S.C.R. 211 at para. 58
16.
Sheena B. supra note 8. See also Godbout v. Longueil (City), [1997] 3 S.C.R. 844, Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307.
17.
R. v. Big M, Drug Mart Ltd., [1985] 1 S.C.R. 295 at 337.
18.
A startlingly large and remarkably varied set of definitions of the term “futility” is provided by Sue Rubin in her book. Readers who would like a thorough discussion of futility are directed to: Rubin S. When Doctors Say No: the battleground of medical futility. Indianapolis: Indiana University Press, 1998.
19.
Readers who would like a thorough discussion of futility are directed to: Rubin S. When Doctors Say No: the battleground of medical futility.Indianapolis: Indiana University Press, 1998.
20.
See, for example, WeijerC.CPR for patients in persistent vegetative state: futile or acceptable choice?CMAJ1998; 158: 491–493.
21.
See Rodriguez at 588, 598, and 606 for a review of these cases (e.g., Malette v. Shulman 67 D.L.R (4th) 321 and Nancy B. v. Hôtel-Dieu de Québec 86 D.L.R. (4th) 385 (Que S.C.) and adoption by the Supreme Court of Canada of the approach taken in these cases.
22.
The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. [hereinafter Charter].
23.
These policies would, of course, have to be consistent with the Charter. Particular attention would need to be paid, in drafting these policies, to the courts’ decisions in such cases as Eldridge v. British Columbia (Attorney General) (1997), 151 (D.L.R. (4th) 577 (S.C.C.), Auton (Guardian ad litem of) v. British Columbia (Attorney General) [2002] B.C.C.A. 539 and Chaoulli c. Québec (Procureur général) [2003] J.Q. no.4036 (Que. C.A.) both on leave to the Supreme Court of Canada.
24.
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 117.
25.
See, for example, R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 28, Rodriguez, supra note 13 at 588, R. v. Plant, [1993] 3 S.C.R. 281 at 292, R. v. Amway Corp., [1989] 1 S.C.R. 21 at 36, Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at 813 per Justice Cory in dissent but endorsed by the majority of the Court in Rodriguez at para. 25, and Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [hereinafter Law].
26.
Law 1 S.C.R. 330 at para. 53.
27.
See, for example: MacklinR.Dignity is a useless concept. BMJ2003; 327: 7429; Pullman D. Dying with dignity and the death of dignity. Health Law J 1996; 4: 197.
28.
It is important to note here that the tensions in the euthanasia and assisted suicide debate referred to by Darryl Pullman (ibid.) between “basic” and “personal dignity” do not arise in the context of unilateral withholding and withdrawal, as the consequence of disallowing unilateral withholding and withdrawing treatment is the opposite of the consequence of allowing euthanasia and assisted suicide.
A proxy directive is a form of advance directive through which an individual, while competent, sets out who she or he wishes to have make decisions in the event that she or he becomes incompetent to make decisions for her or himself. In provinces or territories without clear legislation or common law on proxy directives, there can be some uncertainty over who has the decision-making authority. Where it is not clear, guidance should be sought from the institutional legal adviser.
32.
It must be noted here that individuals cannot demand through an advance directive that which they could not demand if competent.
