Are Doctors above the Law?  The case of Wawrzyniak v. Livingstone

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:

1. Was the DNR order and the physician’s decision made for a “preventive . . . or other health-related purpose”  under the HCCA?
2. 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:

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.

1. Alternate resuscitative measures;
2. Palliative care; and or
3. 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.