What are Manitobans saying about DNR Orders?

What is the current public “radar” regarding the rights of persons with disabilities? What about the rights of patients? What if patients, (a group traditionally viewed as passive and helpless) disagree with the course set for them by physicians (who are supported by an institutional hierarchy)? What are those involved in the formal discourse of ethics at the academic and institutional level articulating about the practice of DNR Order placements?

George Webster and Pat Murphy, two medical ethicists on staff at the St. Boniface Hospital, responded to the Lavallee decision made in the Manitoba Court of Appeal by writing an article for the Winnipeg Free Press. They expressed a concern about the state of affairs in which the Court ruled that physicians need not seek the consent of patients or patient advocates in placing DNR Orders. According to Webster and Murphy, this decision flies in the face of current thinking and practice in healthcare decision making where medical decisions are made as a result of consultation by doctors with their patients. Furthermore, they stated:

There is an essential reciprocity between care giver and patient that characterizes a healing relationship. The suggestion that physicians can act unilaterally has far-reaching and disturbing implications. [37]

Murphy and Webster articulated a concern that has been voiced extensively in both the disability community and among bio-ethicists. This concerns the jurisdiction of expertise. Put more plainly, the problem lies in the decision to withhold or withdraw treatment based on “medical” expertise; however, the ending of a life is not simply a “medical”one, but also lies in the realm of the “ethical.” Doctors can make expert judgements about medical decisions, but decisions to not continue life communicate value preferences. Webster and Murphy describe these as “moral choices, not just judgements of fact.” The conclusions they draw lead them to state:

“Questions about benefits of treatment, quality of life, and futile therapy are ethical decisions that touch on our understanding of life, life’s purpose, and societal obligations to those among us who are most vulnerable and in need of protection.” [38]

Barney Sneiderman, a Professor of Law at the University of Manitoba, also wrote a response in the Health Law Journal to the recent court decisions made regarding DNR Orders. ^[39] In his opinion, the Manitoba Court of Appeal decision did not intend to restrict its judgement to the particular scenario presented in C.F.S. v. Lavallee. The legal basis of the ruling is grounded in the distinction between treatment and non treatment. Treatment (in other words, a physician touching the patient) requires consent. Non treatment (no contact with the patient’s body) , Sneiderman argues, is an action which can be decided unilaterally by the physician. Whether or not a patient is in a vegetative state such as the Lavallee baby is beside the point. It follows logically that if it is solely the physician’s prerogative to refrain from treating a patient, it matters not whether the patient (let alone a patient’s surrogate) insists on treatment. Furthermore, Sneiderman states:

“The only relevant concern is the reasonableness of the medical decision to forego life support measures, and that can be contested only after the fact.” [40]

Sneiderman cites the Manitoba Medical Association’s position on futile therapy:

“Patients have a legal right to refuse treatment, but they don’t have a right to demand treatment.”

It is interesting to note that he cites the March 1998 Manitoba College of Physicians and Surgeons Guideline entitled, “Do Not Resuscitate (DNR) and Supportive Treatment Orders.” This document states the following:

“Regardless of the expressed opinions of patient and family, physicians are not required to provide or continue interventions which could be considered futile.” [41]

The term “futile” is defined as “treatment that offers no benefit and serves only to prolong the dying process.” ^[42] Sneiderman recognizes the vagueness of this definition and the questions it raises, such as “Benefit for whom? What would the time frame of the prolonging of a dying process be?” and so on.

Sneiderman also brings forth the argument about the allocation of resources. He asks:

“If one must administer aggressive treatment to hundreds of patients in order to benefit but one, is that benefit outweighed by the expenditure of ineffective and burdensome treatment upon the other ninety nine? Does it represent a cost-effective application of scarce medical resources to devote so much time and effort with so little result?” [43]

His own response is that for the one patient out of the hundred, the cost of prolonging treatment is, arguably, worth it. But financial considerations, as cold and pragmatic as they may seem, influence the scenario. Sneiderman states the following concern:

“There is a fear, not totally unwarranted, that physicians on their own initiative or at the behest of health care administrators, will begin to make treatment recommendations and decisions based on the financial interests of the health care institution, rather than the best interests of the patient. The fact that this motivation may be unconscious does not make it any less pernicious; it may make it more dangerous because it is harder to detect.” [44]

Sneiderman also acknowledges the difficulties with the concept of futility, which is far from “cut-and-dried.” Any decisions to withhold or withdraw treatment are not, he states, purely medical decisions; they implicate value judgements about when it is no longer worthwhile to keep a patient alive.

The law as it now stands in Manitoba states that physicians have the unilateral authority to make non treatment decisions. He advocates the use of review panels in those situations where patients and/or patient surrogates do not agree with a doctor’s decision to withdraw or withhold treatment. This panel, he suggests, should have within its representation certain non medical members such as hospital chaplains and patient advocates. He sees this as a kind of remedy to help alleviate public anxiety that patients’ interests are not at the forefront of medical decision making at the end of life. ^[45]

Arthur Schafer, a professor in the Faculty of Philosophy at the University of Manitoba, has offered his own comments regarding end-of-life decisions for patients in hospitals. His statements appear to grow from the opposite end of the spectrum from many in the disability movement. He argues from the viewpoint of those who have decided to end their own medical treatment, and in so doing, determine the end of their own lives. Despite the fact that Schafer does not address the perspective of those who wish, against the judgement of their physicians, to remain alive, his comments are included in order to provide a more comprehensive picture of the widespread views held by ethicists in terms of end-of-life issues and the roles doctors and hospitals play in confronting these issues.

Schafer states:

“There is virtually universal consensus on withholding and withdrawing treatment. No one says that a competent individual should be forcibly kept alive on a respirator or kidney dialysis machine against his or her will, that life is a supreme value and that physicians should always protect life. What was controversial fifteen years ago is now understood as a fundamental human right.” [46]

He speaks of euthanasia as being, in some circumstances, a socially acceptable action.

“Our society, even if we are reluctant to admit it, has accepted another category of justifiable homicide in the death of an individual, besides that of self-defense and war. When a physician allows a patient to die, either by withholding an anti-biotic that permits pneumonia to kill the patient, or by taking them off a respirator, as a society we have recognized that under certain conditions it can be justified to be an agent in bringing about the death of another person, even if it is in an indirect way.” [47]

Schafer does not define the difficulties in assessing what is the most appropriate course of action in determining the continuance or stoppage of treatment. He does, however, make a distinction between euthanasia (the act of ending a life as decided by the attending physician ^[48]) and contemplating the request of a patient to withhold treatment. He poses several questions for this dilemma:

“How do we know it is not the illness speaking? How do we know they [the patients] are genuinely competent? How do we know they have not been coerced by family or doctors?” [49]

Here Schafer flags the potential pressures patients could feel to end their own lives in order to relieve the burden they think they are imposing on others by not dying. The problems of patient-doctor communication, and the complicated dynamics often found in family life present concerns that many in the disability community have raised as well. ^[50] Schafer, however, argues from an opposite perspective of that heard among persons with disabilities. Rather than seeing this issue of coercion on the part of families and doctors as one that might prevent consent for the patient to die, Schafer describes the potential for patients to linger unnecessarily because doctors aren’t straightforward enough with families responsible for making the decision to end a patient’s life.

“It is often the way the doctors phrase the questions that lead to families asking for continued treatment when the clinical outlook is dim. Rather than ask if the family wants to remove treatment, doctors should present the realities of the case (i.e. the patient will never gain consciousness) and ask if the patient would have wanted to remain living. This removes the burden from the family.” [51]

Given all this, Schafer believes that in the last fifteen years of debate over this struggle, the rights of patients have increased, and patients do have more opportunities to determine their own courses of treatment. He states:

“Respect for the patient has increased. The humanity of our hospitals has increased. They are more sensitive..to wishes of patients. Patients feel more secure, more in control.” [52]

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36	IBid.
37	IBid.
38	IBid.
39	Barney Sneiderman. "A Do Not Resuscitate Order for an Infant Against Parental Wishes: A Comment on the Case of Child and Family Services of Central Manitoba v. R.L. and S.L.H." Health Law Journal, Volume 7, 1999. 206-231.
40	IBid, 208.
41	IBid.
42	IBid.
43	IBid. 209.
44	IBid. 227.
45	IBid. 229.
46	Mullens. 251.
47	IBid. 251.
48	It should be noted that the definition of euthanasia is not offered by Schafer. He makes the distinction by stating that the stoppage of treatment on the behest of a patient is a "different problem" from that of euthanasia. IBid. 254-5.
49	IBid. 254-5.
50	This concern will be discussed further in Chapter 5 of this paper - THE VOICES OF PERSONS WITH DISABILITIES.
51	IBid. 272.
52	IBid. 279-80.

Our Last Rights - Contents