Draft policy reshapes how end-of-life care is decided

A draft policy from Ontario’s College of Physicians & Surgeons that directs doctors to obtain the consent of patients or their families before deciding to turn off or withhold life-preserving treatments is timely and promotes much-needed discussions between patients and physicians about end-of-life care, says Toronto health lawyer Mary Jane Dykeman.

The National Post has reported that the College's draft policy "largely reshapes how end-of-life care is decided" as it is a sharp departure from its existing advice – "that doctors should avoid treatments they believe will be of no benefit or harmful to a gravely ill patient."

The draft policy addresses what doctors should do if patients ask for help in committing suicide, and maintains "they should discuss their concerns about pain and other issues, rather than merely indicating assisted-death is against the law," says the article.

Dykeman, partner with Dykeman Dewhirst and O'Brien LLP, says the policy encourages more detailed discussions between physicians and their patients (or substitute decision-makers) before and at the end of a patient’s life.

"These discussions focus on matters such as the need for advance-care planning, addressing the underlying reasons for requests for assisted suicide; palliative care delivered by a broader array of individuals; and obtaining consent for do not resuscitate orders (DNRs)," she says.

Dykeman says the policy follows the extensive public discourse arising out of the Cuthbertson v. Rasouli case decided at the Supreme Court of Canada in October 2013, which focused on the need for patient or substitute decision-maker consent prior to withdrawal of life-sustaining medical treatment.

In Rasouli, the court stated that the only other recourse for a physician who wishes to withdraw such treatment is to apply to Ontario’s Consent and Capacity Board to determine whether the substitute decision-maker is acting in the patient’s best interests as defined under the Health Care Consent Act.

"The other case of note is EGJW v. MGC, where the Health Professions Appeal and Review Board has ruled that consent must also be sought for the withholding of treatment, not just the withdrawal of existing treatment (which may not necessarily mean that a physician must propose treatment he or she believes to be clinically futile)," says Dykeman. "But on the facts of that case, if a decision was already made as part of a plan of treatment under the Health Care Consent Act to proceed with treatment in specific circumstances, in that instance, consent would have to be sought to reverse that decision)."

Dykeman says it's important to note that the draft policy has been released as Canada awaits a ruling of the Supreme Court in A.G. v Carter on whether assisted suicide should be legalized.

"This is also against the backdrop in Quebec of medical aid in dying becoming law (and in force in December 2015)," she says.

The College has asked for feedback on its new draft policy until Feb. 20, 2015 in a variety of ways, including mail, email, discussion forum and online survey.

"This is an opportunity for all stakeholders to have their say," says Dykeman. "There may well be significant legal developments over the next months that will impact the draft policy, but it is a welcome update on an important issue."

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