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Doctors and DNRs

I take these cases very personally.

In my research I came across the case of Douglas DeGuerre.  His daughter, Joy Wawrzyniak, was the power of attorney for personal care.  She wanted a full response  including CPR in case of a heart attack. The doctors ignored her directions.  Instead, they placed a do-not-resuscitate (DNR) note on DeGuerre’s file because the doctors felt that medical intervention would only prolong his suffering.  The doctors did not tell the daughter about the change and felt they were not obliged under the Sunnybrook policy.  Mr. DeGuerre passed away and the legal proceedings started.  As reported in various newspapers and case law,1 the family complained to the College and lost.  They appealed to Ontario’s health Professions Appeal and Review Board. Notwithstanding the fact that the Board and later on the College and disciplinary board rebuking them, the doctors were unrepentant2. The family launched a law suit seeking $1,000,000 in damages.  The trial is pending.  I empathize with the family.  Let me tell you why.

There is a very old joke about a man going up to Heaven and to his surprise it’s a cafeteria.  All the angels are wearing white.  To his surprise there is someone wearing doctor’s greens.  Who is that asked the new arrival.  That’s God said the angel – he thinks he’s a doctor.  In 2005 my late father’s pacemaker’s battery stopped working.  We took him to the hospital and waited for it to be replaced. Dad had the capacity to make his own health care decisions and my sisters and I were appointed as his power of attorney for personal care.  All four of us agreed that there would be no DNR.  Accordingly, a crash cart was next to his bed in case the absence of a working pacemaker led to an attack.  On the third day of his hospital stay the crash cart was gone.  I asked the nurse about it and he tried to take me aside to talk about it.  I pulled him back and said my father was capable and he should be aware of what was going on.  The nurse whispered that there was a DNR on his chart.  “Really?” I asked. “and who authorized the DNR?”  The nurse went and called the doctor. The doctor explained that there was a DNR on the chart.  So once again I asked, “Who authorized the DNR?”  She looked back through the file and blushed.  Not my father, my sisters or I had authorized it.  She had no explanation.  I then warned this doctor that if she did not instantly bring back the crash cart I would immediately proceed on an urgent motion and obtain a court order compelling them to do so.  Furthermore, if anything were to happen to my father I was going to sue her personally as well as the hospital. I also warned her that there should be no slow codes.  The doctor was offended and said no such thing exists.  I laughed and said, “if it does not exist then how did you knew what I was referring to?”  They brought the crash cart back.  This all happened in front of my father.  I remember him smiling and saying, “I am not quite sure what happened, but I liked it.”

I have reflected on this incident a great deal over the last decade.  It’s possible that what happened to my father was a bureaucratic error – a simple mistake. But based on my research3 and professional experience that seems unlikely. Since 2005 there have been many cases4 where doctors, in good faith, have followed their own moral compass and declined to offer treatment because they felt there was no realistic hope of medical recovery.  In my review of similar cases, and paraphrasing some of the arguments, it seems that some doctors will refuse to treat their patients if the doctors believe the patient is not receiving any medical benefit from being kept alive artificially and it’s in the patient’s best interests that he be taken off life support. In these circumstances, these doctors feel that both morally and legally that health practitioners need no one’s consent to withdraw the life-sustaining measures if such measures are not medically warranted. In their view, the sentiment seems to be that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity.  It is the extension of death – not life and they argue is inhumane.

The difficulty with the position taken by the doctors is that it ignores a fundamental principle in Canadian culture and law.  I refer the reader to section 1 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (HCCA) which, in part, describes the purpose of the legislation “to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services..”.  Each of us in Ontario have a legal right to make our own decisions for treatment.  In these sorts of cases the patient is incapable and their attorney for personal care is their substitute decision maker (SDM).  When most people appoint their SDM the presumption is that just like we have the right to make our own decisions about our own treatment, so too should the person appointed have that right.   So what happens when doctors propose a treatment (which includes a withdrawal of treatment) and the SDM refuses to consent? Contrary to the positions taken by doctors in these sorts of cases they may not act unilaterally and decline to treat patients.

The HCCA provides that the SDM is authorized to give or refuse treatment “if the power of attorney confers authority to give or refuse consent to the treatment.”  Doctors may argue that the wishes of the patient are unknown or if known, it is impossible to comply with them. The doctors recommend a treatment and the SDM refuses. In this type of scenario the HCCA provides5 that the doctors may apply to the Board for a determination as to whether the SDM complied with s. 216.   Essentially, under s 21, the doctors argue that the SDM cannot possibly know what the patient would have wanted in these circumstances and under these conditions the best interests of the patient should be determinative.  According to the law the Board may substitute its opinion for that of the SDM. For those looking to a fuller explanation of the process plays out, I refer the reader to Cullity J.’s decision in Scardoni.7  The case law seems clear that the bottom line is that doctors cannot unilaterally decide to refuse to treat a patient in accordance with the SDM’s decisions.  There is a statutory protocol that has to be followed.

So will doctors be held accountable for refusing treatment and not following that statutory process? The results of Joy Wawrzyniak’s law suit will be another interesting chapter in this story.

Footnotes
  1.   I refer the reader to a Sep 04 2014 Toronto Star Article “Sunnybrook hospital broke law by enforcing do-not-resuscitate order, says watchdog” found at  http://bit.ly/thestar-DNR-order , a September 3, 2014 National post article, “Toronto hospital illegally imposed ‘do-not-resuscitate’ order against wishes of dying man’s family: medical board” found at http://bit.ly/thestar-DNR-order  and the case before the Health Professions Appeal and Review Board EGJW v MGC, 2014 CanLII 49888 (ON HPARB), found at http://bit.ly/EGJW-v-MGC
     
  2.   Based on this and other cases the College’s Decision-making for the End of Life policy is currently being reviewed. A revised draft policy sets out professional expectations of physicians and provides guidance on a range of issues relating to quality end-of-life care.  I refer the reader to http://bit.ly/policyconsult
     
  3.   “End-of-life Decision Making: Rasouli appeal to be heard by Supreme Court of Canada,” Estates and Trusts Reports (Articles)201278 E.T.R. (3d) 180 Charles B. Wagner, Dr. Benjamin Porat; Are Halachic Powers of Attorney for Personal Care Binding in Ontario? This article is accessible on line at http://bit.ly/halachic-poas; I also refer the reader to “End Of Life Decisions – Do Doctors Have The Right To Decide?” – See more at: http://bit.ly/end-of-life-decisions
     
  4.   I refer the reader to Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2013 SCC 53, 2013 CarswellOnt 14113; Scardoni v. Hawryluck (2004), 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 69 O.R. (3d) 700, 12 Admin. L.R. (4th) 67 (Ont. S.C.J.); Grover v. Grover, 2009 CarswellOnt 1944 (Ont. S.C.J.).”
     
  5.   HCCA, supra note 3, s. 37.
     
  6.   Para. 21(1)1: If the person (i.e., a substitute decision-maker) knows of a   wish applicable to the circumstances that the incapable person expressed   while capable and after attaining 16 years of age, the person shall give or   refuse consent in accordance with the wish. Para. 21(1)2: If the person does not know of a wish applicable to the circumstances   that the incapable person 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 incapable person’s best interests. Para. 21(2)(b): In deciding what the incapable person’s best interests are, the person   who gives or refuses consent on his or her behalf shall take into   consideration any wishes expressed by the incapable person with respect to the   treatment that are not required to be followed under para. 1 of subs. (1).
     
  7.   Scardoni, supra note 3 at paras. 17-28.
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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