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Appeal Board finds physicians must obtain consent for DNRs

The recent decision of an appeal board over end-of-life care underscores the requirement for physicians to obtain consent for do-not-resuscitate (DNR) orders, says Toronto health lawyer Lonny Rosen.

He notes, however, that a committee of the physicians' governing body twice found that the physicians' actions were appropriate.

"Based on this decision, the Health Professions Appeal and Review Board apparently views a DNR order as a plan of treatment for which consent is required," Rosen tells AdvocateDaily.com, referring to  E.G.J.W. v M.G.C.,  2014 CanLII 49888 (ON HPARB).

Rosen, partner at Rosen Sunshine LLP, makes the comment as the board finds that doctors at Sunnybrook Health Sciences Centre violated the law by imposing a do-not-resuscitate order on an elderly patient against his family’s wishes, reports the National Post.

Douglas DeGuerre died from cardiac arrest at the hospital as his daughter, Joy Wawryzyniak, tried to convince medical staff to help the seriously ill 88-year-old man, and health workers declined to take steps to save him, says the newspaper

The man's family had originally consented to a DNR directive, but requested “full code” after a double-leg amputation, says the article. Doctors later changed the chart to instruct staff not to attempt resuscitation in event of cardiac arrest, saying that doing so would only increase the patient’s suffering, says The Post.

"No one told the daughter about the change, but physicians were not obliged under the Sunnybrook policy to obtain consent for DNRs," says the newspaper.

The dispute, also the subject of a lawsuit, dramatizes a debate over who has ultimate power in such cases – doctors or patients’ families when it comes to whether CPR should be performed during cardiac arrest, says the article.

Rosen tells the online legal news service it's important to note that the governing body of these physicians, the College of Physicians and Surgeons of Ontario, did not find that they broke the law; rather that it found they acted reasonably.

The College's inquiries, complaints and reports committee (ICRC) also ruled that the doctors acted with good judgment, saying that life-preserving measures would be futile and would only exacerbate the man's suffering, the newspaper reports.

Rosen says it's interesting that the Health Professions Appeal and Review Board twice found that a decision made by two different panels of the same College committees wasn't within the range of available decisions.

"There seems to be a disconnect between the ICRC of the body that governs physicians and the body that reviews the ICRC's decisions when it comes to this type of case," he says.

In light of its recent ruling, the Health Professions Appeal and Review Board has directed the College to re-open disciplinary proceedings against the physicians, bring its own policies in line with the Health Care Consent Act, as well as ensure that hospitals understand their legal obligations, reports the newspaper.

Rosen says no disciplinary proceedings have yet been contemplated, as the ICRC is a screening committee, which determines whether there are grounds to believe that a physician has committed an act of professional misconduct.

“Although the circumstances in this case are exceptional, the misconduct alleged is serious,” the board said in its recent ruling. “The importance of this complaint transcends the conduct of the [doctors]. It is incumbent on the College to ensure that doctors understand their legal obligations … The public must have confidence that [consent laws] are understood and respected.”

Rosen says it's clear that doctors have to comply with the Health Care Consent Act – they always have had to – and now they have to be guided by this recent decision. They also have to be guided by the Rasouli decision, a Supreme Court of Canada ruling that partially answered the question of who has the final say about when medical staff should halt treatment.

It said the hospital could not remove Hassan Rasouli from a respirator without the consent of the family and, if the parties disagreed, the matter should be resolved by the province’s Consent and Capacity Board, says The Post.

Ontario’s Health Care Consent Act requires doctors to get agreement from “substitute decision makers” and ask the Consent and Capacity Board to resolve disputes, says the newspaper.

Rosen says this latest case serves as an important reminder that physicians, as a best practice, should discuss and get consent for any plan of treatment, including a DNR order.

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