The COVID-19 pandemic has thrown much of what we take for granted on its head. If recent reports are accurate we can potentially add to that list an individual’s right to control their own medical treatment as codified in the Health Care Consent Act (the “HCCA”).
There have been reports in the news recently about advanced planning currently underway about what would happen to the provision of health care if the worst case scenario for COVID-19 should occur and the hospitals are overwhelmed. Included amongst these reports are discussions that certain provisions of the HCCA may temporarily be suspended as part of a new triage system which would allow medical professionals to prioritize who received treatment.
Section 10 of the HCCA codifies that a health care practitioner shall not carry out any “treatment” for a patient unless the patient, or someone authorized on behalf of the patient, has consented to the treatment. The Supreme Court of Canada in Cuthbertson v. Rasouli, 2013 SCC 53, confirmed that “treatment” included the right not to be removed from life support without the patient’s consent even if health practitioners believed that keeping the patient on life support was not in the patient’s best interest. In coming to such a decision the Supreme Court of Canada notes:
“The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.”
The proposed changes to the HCCA would appear to be in direct contradiction to the spirit of this statement, allowing health care practitioners to potentially determine treatment without a patient’s consent based off of the triage criteria that may be developed. This “treatment” could potentially include whether to keep a patient on a lifesaving ventilator.
Hopefully the recent downward trend for COVID-19 cases holds and the discussion about any changes to the HCCA remains purely academic. If not however, and changes are made to the HCCA which could remove the requirement to obtain a patient’s consent before implementing “treatment”, you can be certain that litigation would follow. If this should occur it will be interesting to see how the court reconciles any changes to the HCCA with the historic jurisprudence, for as Rasouli notes beginning at paragraph 18 many of the rights that were codified in the HCCA previously existed under the common law, such that any changes to the HCCA alone may not necessarily take these rights away for a patient.
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When sick, elderly or injured patients are hospitalized, the hospital usually has a discussion with the patient or their substitute decision-maker about end-of-life decisions. In particular, there usually is a difficult discussion about the extent to which the patient is to be resuscitated in the event of heart stoppage. Often, the patient wants to be allowed a natural death, with no heroic measures to prolong life, such as intubation or other artificial life supports. Such decisions can be made for a number of reasons, such as the person’s religious beliefs, a desire to avoid the pain and possibly harmful effects of resuscitation efforts, or a concern about quality-of-life post-resuscitation.
(It has been argued that calling the decision a “DNR” is stigmatizing, and should be called an “Allow Natural Death” order instead.)
If a decision to forego resuscitation is made, a “Do Not Resuscitate” (“DNR”) order is completed. The decision is noted on the patient’s file, and often on the whiteboard by the hospital bed.
Difficulties can arise, however, when the person is not hospitalized at the time. If the person is at home and suffers an incident, the attending paramedics may have no way of knowing about any DNR decision. Ontario does not have any form of registry for DNR decisions, so paramedics have no way of searching on-line for DNR decisions.
In an interview with CBC Judy Nairn, Executive Director of Hospice Waterloo Region, suggested that people at home with concerns about their DNR order being honoured should put it on their fridge door: paramedics always look their first.
The news report referred to a 67-year-old woman who was so concerned that her DNR wishes be respected that she wears her DNR request around her neck.
It is not enough just to make the decision about resuscitation efforts. It is important to take steps to ensure that the decision, once made, is respected and acted upon.
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 For this reason, the frail and elderly should also always keep contact information and details of any medical conditions and medications on their fridge.