In the Wawrzyniak decision,1 the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?
The medical team looking after the patient concluded that the patient was most certainly not going to medically benefit from any resuscitation. In their view, such treatment would only cause undue suffering and harm. The doctors unilaterally signed a do not resuscitate order (“DNR”) and placed it in the patient’s chart. When the doctors signed the DNR there was no emergency precluding them from seeking directions from the Consent and Capacity Board within the framework set up under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (HCCA) to resolve disputes with the Substitute Decision Makers (SDM).2 During this process, the physicians could not reach the daughter, so they left her a voicemail that did not indicate the reason they called.3
The daughter came to visit her father and found him alone in respiratory distress. She pleaded with the medical staff. She told them that her father was supposed to receive CPR4 on a full code basis. But because of the DNR order in his chart, the health care professionals declined to give the patient CPR. He died soon after.
The daughter sued.5 She sought damages under the Family Law Act6 and damages for mental injuries caused by the doctors’ alleged breach of their fiduciary duties to the patient and his daughter. The court dismissed the claims against the doctors.
For the purposes of this blog I would like to focus on the part of the claim dealing with the alleged breach of duty of care and fiduciary duty owed by the physicians to their patient.7
Ontario’s legislature codified much of the common law regarding health care decisions and the rights of patients to refuse or accept treatment under the HCCA. Section 1 (c) describes the purposes of this Act as, “….to enhance the autonomy of persons for whom treatment is proposed….” In practice, there is an increasing number of cases where health care professionals do not agree with their patient’s choices. The physicians in these cases generally argue that death is imminent and the quality of life makes extraordinary measures taken to prolong life problematic. Hovering outside the case law is the issue of the strained financial resource in healthcare.8 To deal with this issue the HCCA provides both the physicians and the SDM with an opportunity to present their dispute to an administrative tribunal called the Consent and Capacity Board (CCB). The concern with this case is that it stands for the proposition that doctors do not have to submit the dispute to the CCB. If that proposition holds, doctors will be able to unilaterally decide to withhold treatment and end run the CCB notwithstanding that the patient and/or SDM still want the patient to live.
Paragraph 11 of Wawrzyniak explained the plaintiff’s argument with respect to the standard of care,
“The plaintiff alleges that the defendants failed to meet the standard of care …in two respects. First, by failing to obtain her consent, as her father’s substitute decision-maker, to the writing of the “do not resuscitate” order, removing CPR from her father’s plan of treatment, and withholding administration of CPR which, she contends, fall within the meaning of “treatment” in the HCCA….”(emphasis added)
The definition of treatment is key. The term is used both in the HCCA in describing patient autonomy and by the physicians to rationalize their perspective. Let’s review the arguments about “treatment”.
By way of background, there are two relevant statutes that deal with the situation when a person becomes incapable. Under the Substitute Decisions Act,9 a person may appoint a person to be their attorney for personal care and act on their behalf when they become incapable of articulating what they want to be done in end-of-life matters.10 In Wawrzyniak, the father appointed his daughter as his attorney for personal care/ his SDM. Under the HCCA,11 the SDM is authorized to give or refuse consent to health treatment on behalf of the grantor. And, as explained by the court, in paragraph 2 of Wawrzyniak,
“The HCCA provides that a health practitioner who proposes a treatment for a person shall not administer the treatment without the person’s consent or, if the person is incapable, the consent of the person’s substitute decision-maker.’
The court rejected the plaintiff’s argument that the doctors’ refusal to perform CPR falls under the definition of “treatment”. By saying that refusal to offer CPR does not constitute treatment, the court agreed with the physicians that the HCCA did not apply. This meant no SDM approval was required and there was no obligation to present the dispute before the CCB. In my view, the court’s holding in this regard was flawed, because failure to offer CPR necessitated alternative treatments dealing with palliative care issues. Since palliative care constitutes treatment that the SDM certainly had a right to refuse, arguably, failure to apply to the CBB also fell short of the standard of care required of physicians.
So let’s dive into the court’s reasoning, which was based on its analysis of s. 10 of the HCCA and the decision of the Supreme Court of Canada in Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2013 SCC 53 (S.C.C.)
The judge pointed out that, broadly, the goal of the HCCA is to enhance the autonomy of persons for whom treatment is proposed. Then in paragraph 184, the court acknowledged that section 10 of the HCCA requires physicians to obtain consent for the administration of a treatment. However, that requirement does not arise unless a treatment is proposed.
That being established, the court posed two questions:
- Was the DNR order and the physician’s decision made for a “preventive . . . or other health-related purpose” under the HCCA?
- Did the DNR order and Dr. Chapman’s decision constitute “anything that is done” for a health-related purpose within the definition of “treatment” in the HCCA?
With respect to the first question, the court concluded that there was no health-related purpose to providing CPR given the doctors’ conclusions that CPR would almost certainly not benefit Mr. DeGuerre. It would only cause harm because the patient would certainly suffer from the administration of resuscitative measures, including through painful fractures of bones, bleeding, hemorrhaging, and injuries to his internal organs for a preventive purpose.
With respect to the second question the court referenced the decision in Rasouli for the proposition that a physician is not always required to offer a treatment, and whether a physician is required to offer a treatment depends on the physician’s professional assessment of whether the treatment offers a medical benefit.12 The doctors did not believe that CPR offered any medical benefit to the patient.13
Let’s examine the argument that the doctors failed to meet the requisite standard of care. Let’s review some relevant excerpts of the decision:
Paragraph | Observations |
104 ….. [The College of Physicians and Surgeons of Ontario ](CPSO) Consent to Medical Treatment policy that was in effect on September 22, 2008 states that the duties set out in the policy are codified in the HCCA, and that physicians are encouraged to consult with the HCCA in order to familiarize themselves with all the legislative provisions. |
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107 The CPSO policy states that patients have the right to receive life-sustaining treatments that may be a benefit to them and that take into account their goals, values and beliefs. According to the CPSO policy, when it is not clear whether treatment might be a benefit, the choice should be made on the side of providing life-sustaining treatment. The CPSO policy states that when it is clear from available evidence that treatment will almost certainly not be a benefit or may be harmful to the patient, the physician should refrain from beginning or maintaining such treatment. …. |
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108 The CPSO policy states that physicians are not obliged to provide treatments that will almost certainly not be of benefit to the patient. |
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109 The conflict resolution measures in the CPSO policy are stated to apply where it becomes evident in the course of making decisions for end-of-life that there is disagreement over appropriate treatment between patients or substitute decision-makers and healthcare providers. The CPSO policy statement refers to the HCCA as a statute which provides a structure for managing conflicts about treatment decisions for incapable patients that cannot be resolved in other ways. Physicians are told that they should be aware of the relevant legislative processes. |
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110 The CPSO policy statement addresses the circumstance where consensus is not achieved: If the patient or substitute decision-maker, or family if there is consent, insists on a course of treatment that the physician feels will not be of benefit to the patient, the physician may offer to transfer care of the patient to another facility or care provider who is willing to provide that treatment. This option should be considered only after alternative methods of conflict resolution have been exhausted. In following such a course, the physician must comply with the College’s policy on Ending the Position-Patient Relationship. |
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170 I find that each of Dr. Chapman and Dr. Livingstone followed proper procedures when they conducted their examinations of Mr. DeGuerre on September 22, 2008. Their professional assessment that Mr. DeGuerre’s death was imminent, and that the administration of CPR would almost certainly not benefit Mr. DeGuerre and only cause harm is amply supported by the evidence. |
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Let’s review the framework set out in the HCCA.14
Part I of the HCCA prioritizes autonomy of the patient in consenting to treatment. This stands in contrast to the CPSO’s prioritization of the medical profession’s view of whether the treatment would certainly not be a benefit to the patient. The CPSO perspective apparently views “benefit” only in terms of medical benefit. Interesting – because if patient autonomy is paramount that would seem to make medical benefit a secondary priority. Clearly – health care professionals’ understanding of medical benefits supersede those of a patient. The inescapable conclusion is that the HCCA places another variable in the equation regarding the choice of treatment. The CPSO policies seemingly ignore a patient’s right to view even a small amount of additional time being alive as beneficial. Perhaps we can look to other legislative initiatives to get a better picture.
It would be interesting to consider the constitutional argument of whether a physician who declines to administer a treatment to a patient has contravened the patient’s Charter rights under section 7 (Life, liberty and security of person) and section 15 (Discrimination).15 Arguably the governmental funding of a hospital and OHIPs paying of physicians, might bring them under the Charter. However, it could also be argued that the Charter would not have application to an operational decision being made by a health practitioner, as the health practitioner is not government or implementing a government program or policy (as in Eldridge16). The Human Rights Code could have application, though. Deciding that some lives are worth less than others on the basis of baseline disability or anticipated post-intervention disability could be discrimination.
The decision in Wawrzyniak is disturbing in another way. In paragraph 73 the court notes, “There was no emergency on September 22, 2008 when the DNR order was written.” Compliance with the HCCA suggests that if the doctors wanted to deviate from the instructions provided by the SDM and have a DNR order they should have applied to the Consent and Capacity Board. After all, section 36(1)(b) of the HCCA states,
“the health practitioner who proposed the treatment may apply to the Board to obtain permission for the substitute decision-maker to consent to the treatment despite the wish. 2000, c. 9, s. 34 (1).”
Conclusion
Wawrzyniak reminds me of an old joke about a person’s first day in Heaven. He is greeted by an angel wearing a white celestial robe who takes the newcomer to Heaven’s cafeteria. Everyone is wearing white celestial robes except for one whose robe is green. The newcomer asks, “who’s that wearing green”? The angel responds, “that’s God, he likes to think he is a doctor”. If Wawrzyniak is good law, then physicians succeeded in ensuring that when it comes to DNRs they alone make end of life decisions. Patients’ autonomy will have been minimized, their end-of-life wishes will now be irrelevant, and the role of the CCB marginalized.
In Wawrzyniak, the doctors did not believe that CPR offered any medical benefit to the patient. But wouldn’t our legislature’s granting autonomy to the patient in treatment decisions, by definition, mean that other factors have to be considered other than just the doctor’s views?
In paragraph 194 of Wawrzyniak, the court references Rasouli and makes the argument that the doctors’ decision not to offer CPR as a treatment option does not qualify as a “treatment” and therefore no consent is required by the HCCA. According to Wawrzyniak, whether a physician is required to offer a treatment depends on the physician’s professional assessment of whether the treatment offers a medical benefit. I have two problems with this conclusion. Firstly, as pointed out by the court in Rasouli,
“The Ontario Court of Appeal… held that withdrawal of life support and administration of end-of-life palliative care were integrally linked and should be viewed as a “treatment package”: 2011 ONCA 482, 107 O.R. (3d) 9 (Ont.C.A.), at para. 52. Since consent to the administration of palliative care was clearly required under the HCCA, it should also be required for the “treatment package” of withdrawal of life support and administration of palliative care.17
As indicated in the Merck Manual,18
A DNR order does not mean “do not treat.” Rather, it means only that CPR will not be attempted. Other treatments (for example, antibiotic therapy, transfusions, dialysis, or use of a ventilator) that may prolong life can still be provided. Depending on the person’s condition, these other treatments are usually more likely to be successful than CPR. Treatment that keeps the person free of pain and comfortable (called palliative care) should always be given.
This is highly significant. When the patient came into the hospital the physicians had several treatment paths or packages that, like in Rasouli, were integrally linked and viewed as a treatment package.
- Alternate resuscitative measures;
- Palliative care; and or
- CPR
The decision whether CPR should be administered is not made only at the moment of cardiac arrest. The option is considered before urgent action is required. Accordingly, that there should be no CPR and the decision for there to be a DNR and administration of end-of-life palliative care were integrally linked and should be viewed as a “treatment package”.
In my view, the refusal to offer CPR is no different than withdrawal of life support. Granted that one requires an act by the doctors (turning off the machines) whereas the other is purposefully doing nothing, but both necessitate palliative care. In my view that same result means both decisions should fall under the definition of treatment.
The second problem I have with the argument (that not offering CPR as a treatment option does not qualify as treatment,) is the HCCA.
The doctors argued that the HCCA’s requirement for patient consent to a proposed treatment does not give rise to a patients’ right to require a physician to provide a certain type of treatment19. Perhaps – but as Chief Justice McLachlin noted in note 2 paragraph 28 of Rasouli, “the HCCA contemplates disputes between physicians and substitute decision-makers over the care of incapable patients, and provides for their resolution by the CCB, an independent, quasi-judicial body with specialized jurisdiction over matters of consent to medical treatment”. Arguably, the dispute settlement mechanism set up under the HCCA was designed to specifically deal with these situations and balance the patient’s/SDM’s right to decide with a physician’s view of the proprietary of treatment.
The legislature drafted the HCCA and set out a framework to enhance the autonomy of the individual in end-of-life decision making. It provides for a framework on how to resolve disagreements between the SDM and physicians with respect to treatment decisions. If offering a “treatment” is only contingent on the physician’s assessment, why did the legislature in the HCCA prioritize patient autonomy in decision making? Why did the legislature propose a framework to deal with SDM and physician disputes about treatment? If Wawrzyniak is good law, it renders the HCCA purported enhancement of the patient autonomy meaningless.
Wawrzyniak appears to validate a physician unilaterally signing a DNR without the SDM’s approval. This permits doctors to usurp patient autonomy based on his/her personal view of medical benefit and end run the CCB. There is no consideration for patients’ autonomy or belief system. We all accept that each one of us is going to die. We all agree that the very best medical intervention only delays the inevitable. So, we really are just talking about the value of how much extra time we are given. Is just a little time worth the medical treatment proposed? That’s the real question.
For those Ontarians who see value in individual choice and appreciate even one more moment of life, the decision is dangerous. Wawrzyniak’s conclusion appears to minimize patient autonomy and undercut the HCCA framework that seeks a balance between the value of providing and facilitating appropriate care for incapable patients and the values of enhancing the autonomy of persons for whom treatment is proposed.
The next case dealing with this matter will be interesting. Hopefully these issues will be better clarified when we see how the Court of Appeal for Ontario deals with these issues.
- Wawrzyniak v. Livingstone, 2019 ONSC 4900, 2019 CarswellOnt 13346/ (Wawrzyniak) ↵
- See paragraphs 73 where the court says, “There was no emergency on September 22, 2008 when the DNR order was written.” ↵
- In paragraph 75 of Wawrzyniak the judge explained,
“75 The plaintiff listened to the voicemail message. She had never met or heard of Dr. Chapman before. She did not detect a sense of urgency because Dr. Chapman’s voice was quiet and calm. The plaintiff was reassured by the part of the message where Dr. Chapman said that nothing particularly had changed. The plaintiff did not know how to reach Dr. Chapman, who had not left a number, and she did not have Dr. Livingstone’s number. The plaintiff knew how to reach the ward, and she phoned the C4 ward and spoke with one of the nurses at 3:08 p.m. The nurse identified herself and said she had no idea what the message was about. The plaintiff did not ask to speak to Dr. Chapman or Dr. Livingstone. The plaintiff was planning on coming to the hospital to visit her father, so she got in her car and drove to the hospital.” ↵
- CPR is an acronym for cardiopulmonary resuscitation. The American Red Cross explains, “CPR stands for cardiopulmonary resuscitation. It can help save a life during cardiac arrest, when the heart stops beating or beats too ineffectively to circulate blood to the brain and other vital organs. With a half-million cardiac arrests each year, CPR increases the likelihood of surviving cardiac arrest, when the heart stops beating or beats too ineffectively to circulate blood to the brain and other vital organs. It’s not just for healthcare workers and emergency responders. CPR can double or triple the chance of survival when bystanders take action….” See https://www.redcross.org/take-a-class/cpr/performing-cpr/what-is-cpr ↵
- See paragraph 89 where the court explains:
The plaintiff claims:
(a) Damages pursuant to the FLA in compensation for the loss of guidance, care and companionship that the plaintiff might reasonably have expected to receive from Mr. DeGuerre if his death had not occurred by the fault or neglect of the defendants in breach of duties owed to Mr. DeGuerre.
(b) Damages for severe and lasting mental injuries caused by breaches of a duty of care and fiduciary duty owed by the defendants to Mr. DeGuerre.
(c) Damages for severe and lasting mental injuries caused by breaches of the duty of care and the fiduciary duty owed by the defendants directly to the plaintiff. ↵
- Family Law Act, R.S.O. 1990, c. F.3. ↵
- paragraph10 of Wawrzyniak says as follows:
The plaintiff makes three claims. First, she claims damages under the Family Law Act, R.S.O. 1990, c. F.3 (”FLA”) for her pecuniary loss resulting from her father’s death to compensate her for the loss of guidance, care and companionship that she might reasonably have expected to receive from her father if he had not died by the defendants’ alleged fault or neglect. Second, she claims damages for severe and lasting mental injuries caused to her by breaches of a duty of care and fiduciary duty that she alleges the defendants owed to her father. Third, she claims these damages for breaches of a duty of care and a fiduciary duty that she alleges the defendants owed directly to her.
On a separate note, the daughter sued the physicians for damages she incurred as a result of the alleged breach of fiduciary duty and alleged negligence. The cases that judicially considered this case, for the most part, dealt with the court’s conclusion that a healthcare professional does not owe a duty of care to a non-patient third party, including a close family member or substitute decision-maker. See Ovari v. Brant Community Healthcare System, 2023 ONSC 6933, 2023 CarswellOnt 19044; Bonenfant v. Ponesse, 2021 ONSC 8544, 2021 CarswellOnt 19983: Alafi v. Lindenbach, 2022 ONSC 1435, 2022 CarswellOnt 2754; and Sigurdson et al v. Norbord Inc. et al., 2021 ONSC 5193, 2021 CarswellOnt 10789.
The court’s conclusion that “a healthcare professional does not owe a duty of care to a non-patient third party.” might be qualified. It is true that health professionals do not have a duty of care to family members in providing or withholding treatment to their patients. If they breach their duty of care to their patient, however, they can be liable for resulting nervous shock claims or, of course, Family Law Act claims of relatives. ↵
- In Rasouli the lawyer for the doctors indicated that money was not an issue. But, that some consider it a factor is evident from the court putting the question to the lawyers arguing the case. See Toronto Life Article, “A Life Interrupted: Hassan Rasouli’s journey from an earache to a high-stakes battle over end-of-life decisions” . Some interesting excerpts:
At every step along the way, the doctors’ lawyer Harry Underwood has been careful to insist that he’s making a legal argument about a patient’s best interests, not about the use of hospital resources. But in the Rasouli case, as in any case about removing a person from life support, the question of resource rationing is present, implicitly, in every argument. “It’s the elephant in the room,” says Arthur Schafer, the director of the Centre for Professional and Applied Ethics at the University of Manitoba. In an affidavit Schafer provided on behalf of the Sunnybrook doctors, he argued that allowing futile care for people like Hassan Rasouli could deny other people much-needed care. “One person’s provision is often another person’s deprivation; so the decision to offer a non-beneficial treatment raises the ethical issue of how to allocate scarce medical resources.”
Medical rationing happens every day, but talking about it is taboo. Officially, there is no room for utilitarianism in the critical care unit. According to the rules of any medical association, the question that must guide a doctor’s actions is “What’s best for the person in front of me?” not “What’s best for the health care system?” or “What’s best for the hospital?” or even “What’s best for all of my patients, as a group?” Unofficially, resource allocation is a serious concern for hospitals and for the health care system as a whole. Sue MacRae, a prominent Toronto-based bioethics consultant who is also a registered nurse, says that medical decisions are often made with limited resources in mind. “It’s rare that a doctor will come out and say, ‘We’re stopping this because it’s costing too much money,’ ” she says. “But I have heard people talk around it. The doctor might say this person is not suitable for ICU care, he’s too sick. And then there’ll be this trailing part of the sentence that says…and this bed is needed for somebody else.” ↵
- Substitute Decisions Act, 1992, S.O. 1992, c. 30. (“SDA”). ↵
- See section 46 (1) of the SDA which provides “A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care. 1992, c. 30, s. 46 (1).” ↵
- 1996, S.O. 1996, c. 2, Sched. A ↵
- see paragraphs 186-229 Wawrzyniak. ↵
- See paragraph 129 Wawrzyniak, “ Dr. Livingstone testified that he thought that the probability of Mr. DeGuerre’s death was close to absolute. He explained that CPR is associated with an extensive list of potential injuries, with a high risk of rib fractures and breast bone fractures. …. he thought there was virtually a one hundred per cent chance that Mr. DeGuerre would have fractures to his ribs and breast bone, with a high probability of bleeding. There was a significant risk of damage to his airways because of the insertion of tubes into his trachea, and this risk was higher for Mr. DeGuerre because he was on two anti-coagulant medications. Mr. DeGuerre was at significant risk of injury to the internal organs, … Dr. Livingstone testified that he did not think any of these interventions would provide benefit to Mr. DeGuerre because the probability of his death was close to absolute, and the probability of very significant injury from interventions causing pain in his final moments was virtually one hundred per cent.” ↵
- Do Religious Patients’ End of Life Wishes Bind Medical Decision-makers? ↵
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ↵
- Eldridge v. British Columbia (Attorney General) 1997 CarswellBC 1939, 1997 CarswellBC 1940, 1997 J.E. 1910, (1997) 3 S.C.R. 624, (1997) S.C.J. No. 86, (1998) 1 W.W.R. 50, 151 D.L.R. (4th) 577, 155 W.A.C. 81, 218 N.R. 161, 38 B.C.L.R. (3d) 1, 3 B.H.R.C. 137, 46 C.R.R. (2d) 189, 74 A.C.W.S. (3d) 41, 96 B.C.A.C. 81, J.E. 97-1910.
The headnote that summarized the constitutional argument reads, in part, ‘The applicants, who were deaf, alleged that the hospitals were violating art. 15(1) of the Canadian Charter of Rights and Freedoms by refusing to provide interpreter services to deaf patients — Effective communication integral to the provision of medical services — Section 15(1) requires governments to take special measures to ensure that disadvantaged groups can benefit equally from government services — Refusal to provide services of sign language interpreter when required for effective communications regarding the provision of medical services, constituted a violation of Art. 15(1) — Violation was not saved by art. 15(1)……The Charter will apply to a private entity if the entity was controlled by government to such a degree that it could be characterized as government or if the entity was performing a particular activity which was normally ascribed to government. Hospitals, in performing medically necessary services under the HIA, carry out a specific governmental objective……As a result, they were required to conform with the Charter. ↵
- see paragraph 11 Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre2013 CarswellOnt 14113, 2013 CarswellOnt 14114, 2013 SCC 53, (2013) 3 S.C.R. 341, (2013) A.C.S. No. 53, (2013) S.C.J. No. 53, 123 O.R. (3d) 560 (note), 235 A.C.W.S. (3d) 548, 310 O.A.C. 19, 364 D.L.R. (4th) 195, 449 N.R. 313, 5 C.C.L.T. (4th) 1 ↵
- See Merck Manual found on line Do-Not-Resuscitate (DNR) Orders – Fundamentals – Merck Manuals Consumer Version ↵
- Some colleagues of mine reviewed this blog and challenged my conclusions by presenting some scenarios of what would happen if we applied my argument of patient autonomy in decision making to its logical end. For example, a person with substance abuse issues comes into the emergency room seeking drugs. The doctor does not feel it’s medically warranted and instead suggests a drug rehabilitation program. Would patient autonomy trump and compel the doctor to provide the patient with drugs? A hypochondriac comes into the Emergency Room and is sure that he has appendicitis. After the testing is done the physician sees that it’s only indigestion. Should the patient’s demand trump the doctor’s diagnosis and unnecessary surgery be conducted? Clearly the answer is no. The safeguard is the HCCA framework allowing the patient/SDM or physician to apply to the CCB. Moreover, there is a world of a difference where patients’ demands for particular treatments are based on patients’ flawed medical information. In cases dealing with genuine end of life issues the physicians’ decision to withhold treatment is often rooted in their perceived priority of quality of life over the value patients have for each moment of life. In my view, it’s on this point that the patients’ perspective should be adhered to. ↵