Interview: Voluntary Stopping of Treatment
Voluntary Stopping of Treatment: Lawyer Clancy Catelin explains
This blog was first posted on May 10, 2024, by Dying With Dignity Canada as part of a series about advance care planning.
A patient has the right to refuse or stop any treatment at any stage of their health care, even if such refusal or withdrawal proves detrimental to their health or leads to their death. We asked Clancy Catelin, an associate lawyer at Rosen Sunshine LLP in Toronto, to help clarify some healthcare options that are not commonly known or discussed. Clancy’s answers refer to Ontario law where she practices; please refer to the laws in your jurisdiction for matters regarding VSC and VSED.
Can you explain Voluntary Stopping of Care (VSC)? When does a patient commonly make this choice?
People who wish to allow their life to end naturally sometimes refuse or discontinue care which includes health care to prevent or cure illness. This may be referred to as Voluntary Stopping of Care (VSC) and could include stopping any medical treatments that might prolong life such as respiratory support, artificial nutrition and hydration, and includes voluntary stopping of eating and drinking.
Autonomy is one of the most important ethical principles in healthcare. This means that we can make our own decisions based on our own values. If our value is to extend life, then there are many treatments that may extend our lives, even without a prospect of curing the underlying condition. If we wish to hasten death under certain conditions, then we can refuse or stop care and treatments even if others don’t believe it is in our best interest.
For example, if I am dying of cancer and I develop a secondary infection, I could refuse the care to treat that infection with the intention of hastening my death.
Can you explain Voluntary Stopping of Eating and Drinking (VSED)? When does a patient commonly make this choice?
Eating and drinking are necessary to maintain life. Support with eating and drinking is considered “daily living assistance”, where artificial nutrition and hydration are considered medical treatment.
Some patients may voluntarily stop either form of eating and drinking as a means of hastening death. However, because support with eating and drinking is not a medical treatment, there is still some grey area about enforcing these wishes when someone becomes incapable of doing so themselves.
In Ontario, the Health Care Consent Act, 1996, (“HCCA”) does not contain an explicit provision requiring that a healthcare provider obtain consent before giving daily living assistance, but a Power of Attorney for Personal Care document does include nutrition. This is another good reason to complete this document to make it very clear that this person has the authority to make decisions about your eating and drinking if VSED is part of your end-of-life plan. [See blog post on Attorney for Personal Care and Substitute Decision-Maker]
Can an Attorney for Personal Care (APC) or a Substitute Decision-Maker (SDM) stop treatment or care for a patient if they have lost the capacity to communicate? Can you tell us about the Margot Bentley case and how it relates to this question?
An SDM stands in the place of the person when they can no longer speak for themselves – that includes providing, refusing, or even withdrawing care. If your wishes state that you want to refuse food and hydration to hasten death, your SDM can express this for you.
However, how we define “treatment” in the law has become a complex issue. Treatment requires consent, but what if something is not considered treatment, such as eating and drinking as daily living assistance?
Margot Bentley was a woman in British Columbia diagnosed with Alzheimer’s disease who had written a living will stating that she did not want to be kept alive by artificial means, including nourishment and liquids.
Ms. Bentley was a nurse who had spent her career treating people with the same condition and had intimate knowledge of what she could expect at her end of life. She was also a vocal advocate for autonomy at end of life and her family was well informed of her wish not to have her life prolonged. You could not ask for a person with a more informed position regarding their care.
Despite this, she was routinely offered food and spoon fed by the staff of her nursing home. Their position was that they were obligated to provide the necessities of life, which include food and liquids and to not provide it would be abuse or neglect. The Criminal Code imposes legal duties on individuals in certain circumstances to provide the “necessaries of life”, unless they have a “lawful excuse”. As Ms. Bentley’s family tried to enforce her living will, their relationship became very tense with the nursing home, such that the nursing home had a police order in place preventing Ms. Bentley’s family from taking her from the nursing home.
Ms. Bentley’s family took the nursing home to court, arguing that “prompting” her to eat or drink by holding food or water to her mouth was battery, which is a legal term commonly used when medical treatment is provided without consent.
The court found that Ms. Bentley was consenting through her actions by opening her mouth and consuming the food or liquid presented to her. The staff did not force her to consume it or provide it by tube or other invasive means. The court was also not comfortable relying on the living will as an expression of Ms. Bentley’s prior wishes to override her wishes in the moment because it was not specific enough and did not meet the legal requirements for an advance directive.
What do you wish people would know about this process and their rights?
I have a few tips for people who are considering their end-of-life care and preparing an Advance Directive:
The more specific your directions, the better. When your circumstances change, update your Advance Directive.
Explain your values and wishes as this could help others interpret and advocate for them.
You don’t need to limit your directions to medical care; consider your wishes for other aspects of personal care. Personal care decisions include decisions related to health care, nutrition, shelter, clothing, hygiene, or safety.
If you are placing a family member in care, ask about that facility’s policies with respect to end-of-life care; some healthcare facilities prohibit end-of-life care such as medical assistance in dying.
