Letter to the College of Physicians and Surgeons of Manitoba
June 25, 2008
Dr. Bill Pope, Registrar
College of Physicians and Surgeons of Manitoba
1000-1661 Portage Avenue
Winnipeg, MB R3J 3T7
Dear Dr. Pope:
The Manitoba League of Persons with Disabilities (MLPD) has a committed and enduring involvement in issues surrounding decision-making about end-of-life, particularly but not exclusively as they pertain to persons with disabilities. MLPD has undertaken research exploring legal, policy and societal perspectives on the impact of the placement of Do Not Resuscitate (DNR) Orders, and also achieved intervener status in Sawatzky v. Riverview Health Centre, Inc (1998) in support of an injunction to remove the DNR Order from Mr. Sawatzky’s medical charts.
The Ethics Committee of the MLPD has reviewed the College of Physicians and Surgeons of Manitoba’s recent Statement regarding the Withholding and Withdrawing of Life-Sustaining Treatment. We draw your attention to two fundamental errors in the Statement:
1. The decision to define the “minimum goal of treatment” in terms of the patient’s abilities or potential to have abilities. This definition unfairly creates a class of people whose perceived or presumed disabilities disqualify them from their equal right to publically funded life-sustaining medical treatment. The Statement’s “minimum goal of treatment” lays out a set of normative criteria to use in judging the quality and value of the lives of persons needing life-sustaining treatment for the purpose of deciding if such treatment is to be provided or not to be provided. If these criteria are intended to serve the purpose of allocating limited medical resources, this should at minimum be clearly acknowledged.
This “minimum goal of treatment,” if followed through to its logical conclusion, overtly excludes many Manitobans with cognitive disabilities, communication disorders, or mental health issues that preclude them from articulating their awareness of their “sense of self” to the satisfaction of a physician who serves as a gatekeeper to the resources that might keep them alive. As such, the Statement rightly offends today’s understanding of fundamental human and equality rights as articulated in constitutional and other legislation.
Beyond the fundamental error of the “minimum goal of treatment,” its terminology is also questionable in terms of origin, definition and intent. If “minimum goal of treatment” is a medical term, what are its measurable indicators? There is no reference to EEG or other diagnostic tests. The Statement describes the term’s clinical definition as a level of cerebral function that enables the patient to achieve awareness of self; and achieve awareness of environment; and experience his/her own existence. This is problematic for anyone trying to understand the intent of these qualifiers because the assessment implied is not medical but philosophical in nature and cannot be achieved by clinical measurement. However, the College states that the final determination of what constitutes self awareness can be left in the hands of a physician who has little or no broader training in the broader philosophical ethics inherent in this definition. It is our contention that these decisions must rest in the purview of the individuals, the citizens of Canada, and our understanding of human rights and Charter principles.
2. The assignment to physicians of the final authority to with-hold or withdraw life-sustaining treatment. We hold that respect for the value our society places on autonomy demands that the individual whose life is at stake must share in such final authority. Beyond the individual, the family and the society in which the individual lives also deserve some share in this final authority. Ultimately, when consensus cannot be achieved, the courts who interpret the values our society has embedded in our laws must carry final authority. Physicians have historically been mandated and trained to have the clinical competence to treat and preserve life. They are not constituted to be the final arbiter to decide when the lives of their patients will end.
Beyond the fundamental error of the assignment to physicians of the final authority to with-hold or withdraw life-sustaining treatment, the Statement is also mistaken in its understanding that the courts support that physicians have such broad final authority.
This is reflected in the Statement as follows:
The Manitoba Courts have recognized that physicians have the authority to make medical decisions to withhold or withdraw life-sustaining treatment from a patient without the consent of the patient or the patient’s family.
The College bases its argument on the judgments of the Manitoba Court of Appeal in Child and Family Services of Central Manitoba v. Lavalee and Justice Beard’s decision in Sawatzky v. Riverview Health Centre. However, a closer examination of the latter case indicates that Justice Beard recognized that the facts in Sawatzky and Lavalee are not the same. Furthermore, Justice Beard states in paragraph 38 that:
…In the case of non-consensual medical decisions, be they decisions to provide, withdraw or refuse care or treatment, there is a role for the courts to play in making factual determinations and advising of the legality or illegality of disputed decisions before the patient is dead. The very suggestion that there is the option of a claim in negligence raises the fact that doctors can, and on occasion, do make mistakes. Further, many of the decisions that they make are qualitative and there is much room for individual disagreement on the correctness of the decision. Such findings would surely guide the doctors as she/he makes these decisions.
Moreover, Justice Perry Schulman, in the most recent Manitoba case dealing with issues of withdrawing and withholding life sustaining treatment, Golubchuk v. Salvation Army Grace General Hospital et al., 2008 MBQB 49. at paragraph 25 says:
Contrary to the assertion of the defendants, it is not settled law that, in the event of disagreement between a physician and his patient as to withdrawal of life supports, the physician has the final say.
In our view, the two fundamental errors of the College’s Statement as outlined above demand the Statement be retracted or struck down by the courts. There are, however, several other very serious problems in the Statement deserving comment.
A.) The lack of a mechanism to compel and ensure physicians to consult with patients, proxies or family members in all decision-making circumstances is significantly problematic. The CPSM Statement states that in situations where a physician concludes that the minimum goal is not realistically achievable and that life-sustaining treatment should be withheld or withdrawn, if there is no consensus with the patient/proxy/representative, the physician is not obligated to continue to reach a consensus before withholding or withdrawing treatment. Previously in the Statement, the College encourages communication practices between physician and patient, proxies and families. However, the lack of obligation to compel consensus by expanded means in this directive sets up an imbalance of power that is counter-intuitive to any notion of mediation between physician and patient.
Furthermore, the College contends that:
If the patient is in a health care facility, the representative may be determined in accordance with that facility's internal policy. In the absence of an applicable policy, or if the patient is in the community, it will be up to the physician to use his/her best judgment to identify a member of the patient’s family who has the support of interested parties to assume this role. [authors’ italics]
Allowing the physician to choose the patient’s representative in a potentially difficult and contentious decision-making process only exacerbates the power imbalance and leaves those who have doubts concerning the physician’s assessment with even less opportunity to play a role in the decision.
B.) Placing the onus to initiate court action on the patient, proxy or family is very unfair and also an error. Patients, proxies and families may not have the financial means to obtain legal counsel and an injunction from the Courts to continue treatment. Such actions are not provided for in the provincial Legal Aid program; hence, there is no ensured equal access to the Courts. It is our view that the College should adhere to the recommendations put forward by the Law Reform Commission of Manitoba that place the onus on Health Authorities to initiate and bear the cost of resolution mechanisms and legal actions.
C.) The use of a definite time frame for decision-making is unnecessary when consensus is required. Neither are time frames for decision-making helpful when consensus is not possible and the ultimate authority of the courts is invoked. Therefore the issue of time frames is moot.
Never-the-less, the unfairness in the statement of setting time frames in some instances but not in others deserves some comment. The College statement states:
WHERE THE PHYSICIAN CONCLUDES THAT THE MINIMUM GOAL IS REALISTICALLY ACHIEVABLE BUT THAT TREATMENT SHOULD BE WITHHELD OR WITHDRAWN, and where, despite all reasonable efforts, consensus cannot be reached the physician may withhold or withdraw life-sustaining treatment, but in the case of a patient/proxy who is still not in agreement with the decision to withhold or withdraw treatment, the physician must provide at least 96 hours advance notice to the patient or proxy.
This presents three distinct concerns. Firstly, the 96 hour time frame allows little time for a patient, proxy or family who may already be traumatized by a health crisis to adequately formulate an argument and convey it in a situation that has at its foundation a power imbalance. Secondly, if court action is required, 96 hours is hardly feasible as enough time to acquire legal counsel and apply for a court injunction. Thirdly, this directive only applies in those situations where a minimum goal is realistically achievable. If the physician determines it is not realistically achievable, there is no minimum time requirement put forward by the College’s Statement at all.
We appreciate that the College’s intent to lend clarity to issues surrounding the withholding and withdrawing of life-sustaining treatment. However, the Statement put forward puts at its hub the sole and final authority of the physician in these matters of life and death. The power to assess the quality of someone else’s life should not remain in the hands of one individual but rather demands a resolution mechanism that is accountable to all involved.
Terry McIntosh, Co-Chairperson
Harry Wolbert, Co-Chairperson