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4.4 A Legal Perspective - Written by Sherri Walsh, LLB

You have advised me that the MLPD is looking for more effective ways to legally ensure patients’ rights. One option you have contemplated is the creation of a “Will to Live” template. You describe this as a document which persons could fill out indicating their desire to obtain treatment. I understand you would like me to comment on the effect of this document, from a legal perspective.

You know from the work that I have done with you in the past that as the law currently stands in Manitoba, an individual does not have the right to require resuscitation. Patients have a clear right to refuse treatment of any sort, however, with respect to DNR orders, the Manitoba Court of Appeal has stated that:

“Neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where in his or her judgment, the patient is in an irreversible vegetative state. Whether or not such a decision should be issued is a judgment call for the doctor to make having regard to the patient’s history and condition and the doctor’s evaluation of the hopelessness of the case.” 22

This statement made by the Court in 1997 in a case involving a baby who had been abused by his parents has been interpreted by physicians to mean that they may unilaterally withhold resuscitation where, in their opinion, that is the appropriate course to follow.

Although the court’s decision in the Child and Family Services of Central Manitoba case is problematic from a legal perspective, for a number of reasons, it does represent the law in this area to date, at least in Manitoba. While the court’s comments were directed at a patient who was in an irreversible vegetative state, its rationale for saying that consent of the patient was not required was based on principles which would have a broader application to all patients, whatever their physical condition. The Court of Appeal said that a doctor only needs to obtain consent where a course of treatment involves touching. According to the court’s decision in Child and Family Services of Central Manitoba, placing a do not resuscitate order on a patient’s chart and refusing to resuscitate do not constitute treatment because they do not involve touching. Therefore consent is not required to be obtained when a doctor wishes to place a DNR order on a patient’s chart.

As I have set out in the paper I prepared for you in October, 2000 there are many reasons why this decision at law could and should be challenged. Other courts, including the Supreme Court of Canada have said that the law on consent is based on something other than touching, for example, on notions of autonomy and human dignity. Further, the Manitoba Court of Appeal did not consider the effect of either the Canadian Charter of Rights or human rights legislation. Certainly I have always been of the opinion that the rights guaranteed to all Canadians in the Charter and in the Manitoba Human Rights Code would form the basis for a compelling argument that doctors ought not to be able to make unilateral decisions with respect to the placement of do not resuscitate orders.

As well, one judge of the Manitoba Court of Queen’s Bench, Madam Justice Holly Beard, in Sawatzky v. Riverview Health Centre Inc.²³ stated that in many instances courts have recognized and developed new rights under the Charter and that whether this issue was one of those cases, should be determined after a trial and a full examination of the law including a discussion involving rights guaranteed under the Charter and human rights legislation. In that same case, Justice Beard acknowledged that many of the decisions that doctors make are qualitative and that there is much room for individual disagreement on the correctness of such decisions. In Sawatzky, the matter before Justice Beard was an application to grant what is known as an interlocutory injunction. The application requested that the do not resuscitate order that had been placed on Mr. Sawatzky’s chart against his wishes, be withdrawn pending a full legal hearing. Mr. Sawatzky passed away before the matter could go on to trial and so no full legal hearing of the issues surrounding the placement of do not resuscitate orders and patients’ rights, has yet been heard in Manitoba. At the very least, however, the Sawatzky decision does stand as a precedent for obtaining an interlocutory injunction requiring a do not resuscitate order to be withdrawn from a patient’s chart where a dispute between the patient and medical professionals, arises, on a temporary basis, pending a full legal hearing.

From an ethical perspective, the policies that physicians in Canada may use to provide guidance in governing themselves where a do not resuscitate order is, in their opinion, warranted state such things as “there is no obligation to offer a person futile or non-beneficial treatment”;²⁴ and “treatments that offer no benefit and serve only to prolong the dying process should not be employed. When appropriate, an effort should be made to explain non-provision of futile treatments with patients and families.”²⁵

As I discussed in my October 2000 paper, the concept of futility involves great controversy. The controversy essentially turns on how one defines futility. That is, is it a purely medical decision or is it a decision which involves considerations that are personal to the individual patient. The argument of ethicists such as Dr. Françoise Baylis is that quantitative futility, that is, treatment that is not medically possible is something which doctors have expertise in determining while qualitative futility, that is, treatment that is considered “not worth doing” is based on more personal considerations that involve an individual’s own sense of the quality of their life.

It is here that the option you have identified in terms of ensuring patients’ rights, the “will to live” template may have a useful role to play. As Rhonda Wiebe has correctly pointed out, the “will to live” template is the opposite of a living will or advance directive. The latter document can be legally binding. But it must be clearly stated that any “will to live” document, while it may have a useful function, will not be legally binding.

Where the document can be useful and persuasive is in informing a health care professional as to a patient’s wishes. It will not, however, affect the legal and ethical right that doctors now have, to refrain from providing treatment they think is futile. Rhonda Wiebe has identified specific areas for the template’s content such as: a desire to obtain a second opinion where a do not resuscitate order is being contemplated; and the fact that the document would provide an opportunity for a patient to state in very clear terms what he or she finds acceptable in terms of quality of life. Therefore, if a physician wishes to take the patient’s own desires into consideration the document will be extremely helpful. It may also be helpful in any dispute resolution process which a given health care institution may have in place.

I note with interest an article written by Dr. John McKenzie which was published in the March, 2001 issue of Inter-Com, the Canadian Medical Association – Manitoba Division’s newsletter. The article was published in a series entitled Preventing and Dealing with Ethical Conflicts. The article addresses the situation when mutual decision-making fails. Dr. McKenzie refers to a policy developed by the Canadian Medical Association entitled Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care, a copy of which I enclose. He states in the article that the process outlined in the statement says that if, “(a) after reasonable effort, agreement or compromise cannot be reached through dialogue, [the doctors should] accept the decision of the person with the right or responsibility for making the decision.”²⁶ Dr. McKenzie goes on to identify that unfortunately just who is the person with this right or responsibility may not be at all clear and may well be disputed. He identifies that the most controversial of situations is where a treatment is demanded but refused by the care team because “it offers no reasonable hope of recovery or improvement, or because the person is permanently unable to experience any benefit” (citing the CMA Joint Statement on Resuscitative Interventions Update 1995).

Dr. McKenzie states that in these situations “the care team needs to ask who is assessing the value placed on continued life and what values lead to the judgment that a person is permanently unable to experience any benefits. These are not medical but ethical values, as are the decisions based upon them.” He then goes on in his article to identify that an institution needs to have a formal process for dispute resolution whether it is by mediation, arbitration or adjudication. Therefore, depending on what the dispute resolution process of a given institution or regional health authority is, the “will to live” template can be a useful document to be considered. The document might also be useful in terms of attempting to have it admitted into evidence in any dispute resolution process that goes to court.

Again, however, I stress that because patients do not have a legally binding right to obtain resuscitation, unlike their legal right to refuse treatment of any sort, any document evidencing their wishes with respect to receiving resuscitation, while potentially persuasive, will not have a legally binding effect.

In order to enhance the document’s potentially persuasive effect, I suggest that you be governed by the considerations which form the basis for the provisions of the Health Care Directives Act, S.M. 1992, c.33. For example, just as a directive must be in writing, I think that the “will to live” made by an individual should be both in writing and dated. Further, I think it should be signed by the maker or some other person at the direction and in the presence of the maker. In the latter case, the person signing shall not be a proxy if one is appointed to make decisions in the “will to live”. Further, the maker should acknowledge the signature in the presence of a witness who again should not be the proxy appointed in the “will to live”. The witness should then sign the “will to live” as witness in the maker’s presence.

In terms of other means of ensuring patients’ rights in this area, as I have already identified, there is precedent in Manitoba to obtain a temporary injunction pending a full legal hearing where a dispute over the placement of a do not resuscitate order, arises. As well, you may recall that I was originally retained by the MLPD shortly after the Court of Appeal rendered its decision in Child and Family Services of Central Manitoba to address this very issue. You will find on file a letter that David Martin sent to the then Attorney General the Honourable Vic Toews dated October 15, 1998 where the MLPD’s concerns about the Court of Appeal’s decision were raised. The letter concluded by asking that the Attorney General look into this area of the law and consider doing one of the following:

1.	referring the matter, pursuant to The Constitutional Questions Act of Manitoba, to the Court of Appeal or the Court of Queen’s Bench for a hearing or consideration; or
2.	bringing a legislative review in order to implement statutory protections for the security of citizens.

These are still options which should be considered and which you may want to address with the current Attorney General.

Finally, as you know, the Manitoba Law Reform Commission is considering looking into this issue and its recommendations if it does take on the matter, may include legislative reform.

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22	Child and Family Services of Central Manitoba v. L.(R.) & H.(L.) (1997), 154 D.L.R. 4th 409 Man.C.A. [hereinafter Child and Family Services of Central Manitoba]
23	Sawatzky v. Riverview Health Centre Inc. (1998) 167 D.L.R. 4th 359 Man.Q.B. [hereinafter Sawatzky]
24	Canadian Medical Association et al "Joint Statement on Resuscitative Interventions" (1995) 153 Can.Med.Ass. J. 1652A - 1652C at 1652B
25	Canadian Medical Association et al "Joint Statement on Resuscitative Interventions" (1995) 153 Can.Med.Ass. J. 1652A - 1652C at 1652B
26	Inter-Com - March 2001, p.14.

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