Withholding Treatment in End-of-Life Cases
The Supreme Court of Canada’s seminal decision in Cuthbertson v. Rasouli, 2013 SCC 53 made it clear that physicians must obtain consent in order to withdraw life-sustaining treatment, even where the physicians believe the treatment to be futile or harmful to the patient. Following Rasouli, however, an important question remained unanswered – are physicians obliged to obtain consent to decline to provide life-sustaining treatment that they believe to be medically inappropriate. Put differently, are patients or their substitute decision-makers (“SDM”) able to demand the provision of life-sustaining treatment?
Recent Cases Regarding Withholding of Life-Sustaining Treatment
This question was recently brought to light in the context of a two controversial end-of-life cases.
DeGuerre and Sunnybrook Health Sciences CentreIn this case, a decision to withhold end of life treatment was considered three separate times by the Inquiries Complaints and Reports Committee (“ICRC”) of the College of Physician and Surgeons of Ontario (“CPSO”). The case involved an 88-year old gentleman, Douglas DeGuerre, who passed away at Sunnybrook Hospital in September 2008 from complications of congestive heart failure and renal failure.
Mr. DeGuerre was admitted to hospital with a large pleural effusion, thought to be the result of congestive heart failure. His medical history included numerous concerns including end-stage kidney disease, coronary artery disease, type 2 diabetes, hypertension, and COPD. After a family meeting, the physicians responsible for his care placed a “do not resuscitate” (“DNR”) order in the patient’s medical chart. Several weeks later, Mr. DeGuerre underwent surgery to remove both of his legs above the knee, and following the surgery, his daughter (who was his SDM) asked that he be designated as “full code”, so that all steps would be taken to save his life in a medical emergency. Following surgery, Mr. DeGuerre’s condition deteriorated rapidly and the physicians responsible for his care unilaterally placed a DNR order in his medical chart, noting that he was in the final phase of his life and that further aggressive therapy such as cardiopulmonary resuscitation (“CPR”), would not provide any lasting benefit and only increase his suffering. Later that day, Mr. DeGuerre was found by his daughter to be in respiratory distress, and medical staff did not intervene despite requests for help. Mr. DeGuerre went into cardiac arrest and died.
Mr. DeGuerre’s daughter made a complaint to the CPSO regarding the incident and, according to the Toronto Star, also filed a $1 million dollar lawsuit against the Hospital and physicians involved.
Disposition of College ComplaintThe ICRC initially took “no further action” with respect to the complaint. However, Mr. DeGuerre’s daughter requested a review of the decision by the Health Professions Appeal and Review Board (“HPARB”). HPARB found the ICRC’s decision to be unreasonable and sent it back to the ICRC for reconsideration. However, the ICRC reconsidered the complaint and again took no action. Another appeal to HPARB ensued, with HPARB making a similar finding: that the ICRC’s decision was unreasonable. In this decision, HPARB directed the ICRC to reconsider the matter for the following reasons:
The ICRC gave scant consideration to the Health Care Consent Act (“HCCA”) and the consent to treatment requirements set out therein when it took the view that the doctors acted in compliance with hospital policy, and arguably with CPSO policy.
The HCCA explicitly applies to cases involving the withholding of treatment.
The complaint in this case was not simply that the doctors made a DNR order, but that a plan of treatment calling for “full code” was changed unilaterally by the doctors without prior discussion with or the consent of the SDM. In HPARB’s view, the doctors were required to obtain consent from the SDM before making this change, despite their view that the treatment was futile. In the absence of forthcoming consent, the physicians were required to invoke the dispute resolution mechanism under the HCCA (i.e. apply to the Consent and Capacity Board of Ontario).
doctor talking to female patient
HPARB also recommended that the CPSO review and revise its policies to ensure that they are compliant with the HCCA.Following its third review of the matter, the ICRC decided to caution the physicians in writing regarding their failure, in the particular circumstances of this case, to properly communicate with the patient’s SDM when they decided to change the patient’s “full code” status to a DNR order (Note: written cautions are not published by the ICRC, but this decision was nonetheless included in the Toronto Star). The ICRC also ordered the physicians to review the HCCA and submit a written summary to the ICRC regarding what they have learned. The ICRC acknowledged that HPARB indicated in its reasons that the ICRC should consider whether a referral to discipline was necessary, but the ICRC declined to do so and provided a list of reasons as to why it did not believe this was a matter warranting referral.Chang and Toronto East General HospitalA similar case that also recently made newspaper headlines arose out of the Toronto East General Hospital (“TEGH”), where a family sued a physician for unilaterally placing a DNR order on a 94 year old women’s medical chart against the repeated demands of the family that she be listed as “full code”. Ms. Chang was admitted to TEGH with the flu in September 2014. The family claims that the admitting physician tried to convince the family that she would die within a few hours and that any attempts to save her would be a waste of time and resources. The family insisted that all measures be taken to save her life and as a result, she was designated “full code”. Several weeks later, Ms. Chang’s physician advised the family that their mother would likely suffer a respiratory failure in the coming weeks, that she would be transferred from the ICU to a general ward due to space restrictions, and that he would be placing a DNR order in her medical chart. The family refused to consent to this status change, and proposed to have her transferred to a different hospital and to seek a court injunction to prevent the DNR order from taking effect in the interim. The woman died before this could be accomplished.According to the Toronto Star, the family launched a claim for “wrongful death, abuse of power, negligence and breach of fiduciary duties”, seeking $1.2 million in damages following her death. It is not known whether the family has made a complaint to the CPSO.CPSO Policy on Planning for and Providing Quality End-of-Life CareIn September of this year, the CPSO Council approved a policy, Planning for and Providing Quality End-of-Life Care, which sets out the CPSO’s expectations of physicians regarding quality care at the end of life (the “Policy”). The Policy acknowledges that there may be situations in which the physician believes that CPR should not be provided to a patient and, as such, that a no-CPR order should be included in the patient’s medical chart. The following are provided as examples of reasons a physician may form an opinion of this nature: (1) CPR will almost certainly not resuscitate the patient; (2) the patient’s quality of life will be extremely poor should they survive; or (3) there are no further treatment options for the patient’s underlying illness.The CPSO indicates in the Policy that it is of the view that the law is not yet clear on whether consent is required for a physician to make a no-CPR order. However, it goes on to state that:A decision regarding a no-CPR order cannot be made unilaterally by the physician. Where a physician is of the opinion that CPR should not be provided for a patient and that a no-CPR order should be written in the patient’s record, the College requires physicians to discuss this with the patient and/or substitute decision-maker at the earliest and most appropriate opportunity, and to explain why CPR is not being proposed. This discussion must occur before a no-CPR order can be written.According to the Policy, physicians must communicate effectively and compassionately with patients and/or SDMs, in a manner and tone that is suitable to the decisions they are making. If after giving the SDM a reasonable amount of time to consider the physician’s recommendation, the SDM disagrees with the physician and insists that CPR be provided, the physician is required to engage in the conflict resolution process set out in the Policy, which may include an application to the Consent and Capacity Board (the “CCB”). Furthermore, if an event requiring CPR occurs during the course of the conflict resolution process, the physician must provide CPR. The justification for this provision of the policy is provided in an article on the topic in Dialogue, the CPSO’s newsletter: to permit otherwise “would significantly undermine the conflict resolution process and the public may wonder how genuine or sincere the conflict resolution process is when physicians can make a decision at bedside to just not provide CPR.”What Does this Mean for Physicians?Although the CPSO expressed its belief that the case law is unsettled as to whether consent is required in all cases to withhold CPR, it appears that the CPSO has nonetheless set out expectations for physicians in the new Policy. In a recent Council Update, the CPSO stated that the draft version of the Policy contained a requirement that consent be obtained for a no-CPR order, which has since been revised to emphasize “good and effective communication and a robust conflict resolution process.” However, the Policy provides that a no-CPR decision “cannot be made unilaterally by the physician.” Nonetheless, even where a physician believes that life-sustaining treatment would be futile or harmful to the patient, the physician is clearly required to engage patients or SDMs in a discussion before writing a no-CPR order. The physician is required to engage in conflict resolution if the SDM disagrees and insists that CPR be provided. In practice, patients or SDMs will be able to at least insist that physicians go through this process. As noted above, the Policy provides that if an event requiring CPR occurs while the conflict resolution process is underway, physicians must provide CPR. Physicians are left with little guidance as to how long CPR must be continued in these circumstances, as the Policy simply provides that “physicians must act in good faith and use their professional judgment to determine how long to continue providing CPR.”
