Academic journal article University of New Brunswick Law Journal

Consent and Conflict in Medico-Legal Decision-Making at the End of Life: A Critical Issue in the Canadian Context

Academic journal article University of New Brunswick Law Journal

Consent and Conflict in Medico-Legal Decision-Making at the End of Life: A Critical Issue in the Canadian Context

Article excerpt


New technologies are, in many ways, making life more efficient and more productive. Ironically, these same technologies are making life more complex and precarious. In particular, medical technologies--in vitro fertilization, transplantation, stem-cell therapies, advanced life-support techniques--are proving to be a double-edged sword by increasing treatment options and expectations while simultaneously exciting ethical concerns about how they affect our humanity and personhood. Additionally, and importantly for this paper, we now face the ambiguous circumstance where advances in medical technology have extended our life-preserving capability (that is, our ability to maintain a functioning body), but have failed to increase, to the same extent, our healing capability (that is, our ability to restore functionality or cure the underlying debilitating condition).

Patients, families, treating physicians, and lawyers are increasingly presented with complex issues and difficult decisions that tangle healthcare desires, legal rights and duties, and ethical values. Physicians, troubled when competent patients refuse treatment deemed vital (a well-entrenched right (1)), are doubly challenged when confronted with incompetent patients represented by substitute decision-makers (SDMs) demanding treatment deemed "medically futile." (2) Inevitably, when the way is unclear and the parties disagree as to the right course of action, the law must intercede. At the risk of insinuating lawyers into every aspect of life (and death), it seems obvious that the legal profession has an important role to play at the endgame of life.

Although few people adequately discuss their end-of-life desires, and fewer still execute advance directives (ADs), intractable disputes over withholding or withdrawing life support are relatively rare. (3) However, given the increasing longevity and advancing age of populations and the ongoing life-sustaining/cognition-restoring deficit, such disputes will become more prevalent with the result that lawyers will more frequently be called upon to represent families or health authorities when treatment disputes arise. Given that these disputes are a source of tremendous distress for all involved, (4) as tragically demonstrated by the nine-year legal battle for control over Yerri Schiavo's future, (5) lawyers have an obligation--to medical and judicial institutions, to clients and their families, and to themselves--to understand the legal and ethical issues implicated.

Given the above, this paper explores the current legal state in Canada of three core aspects of managing end-of-life situations, with reference to the United Kingdom (U.K.) where appropriate. (6) First, it briefly considers the consent model that has developed in Western medical practice, focusing on its capacity element, which is particularly significant in end-of-life settings. Second, it explores the position of ADs, which extend consent powers beyond the loss of capacity (and death). Third, it explores the operation of "best interests" assessments, an essential concept for shaping end-of-life decisions when the patient lacks capacity and has no applicable AD. In the course of exposing and critiquing these concepts, it highlights the ethical values that back them. (7)

The analysis is structured around the following statutes: the Alberta Personal Directives Act, (8) the Manitoba Health Care Directives Act, (9) and the Ontario Health Care Consent Act (10) and Substitute Decisions Act (11) (which combine to govern this area). These constitute a reasonable sample of Canadian jurisdictions and might together be considered representative of Canadian practices. (12) Four recent end-of-life cases emanating from these jurisdictions will also be considered: Scardoni v. Hawryluck, (13) Re Grover, (14) Jin (next friend of) v. Calgary Health Region, (15) and Golubchuk v. Salvation Army Grace. (16) The paper concludes by offering some practical suggestions for medical law practitioners giving advice in these highly emotive situations. …

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