Determining Best Interests in End-of-Life Decisions
Jones, Sarah, University of Toronto Faculty of Law Review
I. INTRODUCTION II. THE CONSENT AND CAPACITY BOARD III. SUBSTITUTES FOCUS ON THE PATIENT'S VALUES AND BELIEFS IV. THE BOARD'S INABILITY TO PROCESS THE FAMILY'S EVIDENCE V. RE:DP CORRECTLY WIDENS THE SCOPE OF BEST INTERESTS BEYOND CLINICAL INTERESTS VI. TWO STEPS TOWARDS BRIDGING THE GAP BETWEEN THE HOSPITAL'S AND SUBSTITUTE'S POSITIONS VII. CONCLUSION
It is hard to visualize a more private and emotional moment than a family and friends huddled around an ailing patient "in a hospital. Individuals in the unenviable position of ascertaining how the incapacitated patient would have wanted to die are faced with a profound decision. It is not a decision that will soon be forgotten.
As Justice Abella wrote in a case concerning a Jehovah's Witness' decision to reject a blood transfusion, such a decision "engages the most intensely complicated constellation of considerations and its consequences are inevitably profound." (1)
In Ontario, where a family and a hospital disagree about how an ailing patient should be treated at the end of her' life (where the ailing relative is not able to speak for herself), the parties turn to the Consent and Capacity Board to resolve the dispute. The Board has decided a multitude of end-of-life cases since its creation in 1996.
This paper considers the role the Board plays in adjudicating emotional disputes between families and hospitals. The Board's governing legislation does not provide guidance on how to weigh evidence presented by the family (generally emotional evidence of the patient's character) against the evidence presented by the health care professionals (generally clinical outcomes). Appellate courts have indicated that weighing this evidence is a role for the Board, yet they have refrained from providing guidance:
The task of determining where a patient's best interests lie when they [factors referred to in the legislation] tend to support different overall conclusions may be of considerable difficulty and complexity. [...] The difficult balancing exercise is for the Board, and not for the court, to perform ... (2)
This passage indicates that the Board's role is "balancing" rather than determining the winning argument. The Board's balancing does not appropriately weigh the family's values and beliefs. The lack of legislative guidance has led to a situation in which the Board is unable to digest the emotional appeals of families, who have no further evidence to sway the Board. This paper argues that the Board should validate the evidence presented by the family and substitute by empowering the evidence rooted in care and relationships.
The first section in this paper sets out the legislative authority of the Board. The second section reviews the existing decisions and demonstrates the Board's difficulty weighing the family's evidence along side the hospital's clinical evidence. While many health care decisions are based exclusively on clinical calculations, this section argues that exclusively rational reasoning is not suitable for end-of-life decisions. The question then remains how the emotional evidence can be appropriately valued.
The third section sets out the reasoning in the 2010 Board decision Re:DP and suggests that this decision provides a means of empowering the role of the family without altering the existing statutory scheme. However, while Re:DP empowers the family's position, it does not provide a successful means for Boards to balance the relationship-based evidence presented by the substitute decision maker and family and the clinical evidence presented by physicians. In light of this problem, the fourth section suggests that the solution is not to reject the principle of best interests, but rather to improve the communication between the hospital and family. (3) This section sets out two steps for the Board to take when evaluating the incommensurable evidence presented by the hospital, the family and substitute. …