Life and Death Under the Health Care Consent Act

October 22, 2012 Hull & Hull LLP Health / Medical Tags: 0 Comments

End of life decisions are painful and difficult subjects to face. Nobody wants loved ones to suffer needlessly from terminal illness, but nobody wants to let their loved ones go before their time. This deeply personal tension is playing out in the hospital room of Desmond Watson at Oakville-Trafalgar Hospital even as I write.

Desmond and his wife Maria have been married for 71 years. She has kept a bedside vigil over her husband for nearly three years.  He is suffering from progressive dementia from which the hospital medical team believes he has no realistic chance of recovery. He has shown few signs of consciousness for some time. Their story, featured on the front page of the Toronto Star on October 20, 2012, is simultaneously heartbreaking and inspiring.

Conflict developed between Desmond’s family and his medical team about to what sort of measures should be taken to keep him alive. Maria argued that Desmond is a devout Catholic, and had expressed his beliefs that life is sacred and that he would not want his life support withdrawn. The medical team believes that they are only prolonging his suffering. In order to resolve this intractable conflict, they turned to Ontario’s Consent and Capacity Board (“CCB”) in early 2011.

Desmond had executed a Power of Attorney for Personal Care in 2001, which named Maria his substitute decisions maker. The Health Care Consent Act clarifies the principles which a substitute decision maker must follow when making decisions about treatment. S. 21 sets out that “[i]f the person 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 that wish”. If there is no known applicable wish, or it is impossible to comply with the wish, the decision must be made in the incapable person’s best interests. The Act goes on to provide guidance on how to determine what the incapable person’s best interests are in s. 21(2). One must consider the incapable person’s values and beliefs, the likely effects of treatment or its alternatives, and any wishes they may have expressed while not capable. 

Maria testified that Desmond’s beliefs would mean that he would wish to be kept alive and undergo aggressive treatment. The CCB found that Maria had indeed complied with her obligations under the Act. The CCB decision is available on CanLii (DW (Re), 2011 CanLII 18217 (ON CCB).)

Tragically, the situation the Watsons find themselves in is not unique. As Ontario’s population ages and life-extending technologies improve, these conflicts will only increase in frequency.

To ensure your end-of-life choices are respected, put that wish in writing while capable, ideally in the Power of Attorney itself. 

Ian M. Hull

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