Patient's Right to Consent To Treatment in Ontario - Canada


     By Wagner Sidlofsky LLP

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Moe Maraachli and Sana Nader's recent dispute with a hospital over the fate of their terminally ill child highlights a debate over end of life issues. The author reviews an Ontario case to highlight how Ontario has dealt with the tension of a patientís right to consent to treatment and a doctor's right to advocate for what he/she feels are in the best interests of the patient.

When should hospitals take away a personís 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 motherís personal care and to give or refuse to consent to treatment. Their mother always told them ďwhere there is life there is hopeĒ. So even though the doctor said there was no chance for their mother to recover, and in spite of their motherís pain, the daughters insisted that all efforts be expended to prolong their motherís life. The doctor disagreed because while the ventilator and drugs would sustain the motherís life, the motherís disease was incurable and in the doctorís opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judgeís decision letís 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 patientís 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 doctorís 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 Ontarioís 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 Boardís 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 motherís wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation. The hospitalís 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 motherís 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 patientís 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 daughtersí 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.

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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 ďof 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 personís substitute decision-maker has given consent on the personís 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 recipientís 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 recipientís 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

FN5. See section 80. (1) which states that a party to a proceeding before the Board may appeal the Boardís decision to the Superior Court of Justice on a question of law or fact or both.

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 personís substitute decision-maker has given consent on the personís behalf in accordance with this Act

In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 Ė 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.

ABOUT THE AUTHOR: Charles B. Wagner
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.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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