Where There is Life There is Hope

When should hospitals take away a person’s 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 court¹.  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. Hawryluck².  Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”.   So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life.  The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judge’s decision let’s review the law.  The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A .   Under section 10³ a doctor may not administer treatment unless he has the consent of the patient.  It is arguable whether he needs the patient’s 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 doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.⁴  Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice⁵.   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 Board’s 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 mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation.  The hospital’s 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 mother’s 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 patient’s 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 daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.⁶

In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.