Law and Ethics

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Rasouli Decision in Canada: What does it mean for Health Care Professionals?

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Michael Gordon

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In North America, although Canada and the United States are separate countries, and each State and Province have their own areas of jurisdictional responsibility, both countries share the legal formulation that Supreme Court rulings set precedential interpretations of the law. Jurists, lawyers and legislators on both sides of the border often draw freely from each other's jurisprudence. Thus, the recent Rasouli decision by the Canadian Supreme Court should make physicians and policy makers on both sides of the border look carefully at the ruling's implications.¹ It would then be prudent for those given the mandate to protect at the same time the integrity of responsible, ethical and professionally sound health care to avoid the potentially negative impact this current ruling can have on patients at the end of life and those whose professional duty is to assure the most humane care possible.

As gracefully and forcefully explained and commented on by one of Canada's foremost ethicists, Arthur Schafer, the potential implications for the future of health care are profound. To quote, "The Supreme Court of Canada's 5-2 decision in Rasouli is a clear victory for the family. Sadly, it is a loss for common sense and common humanity. It is also a blow against physician integrity and potentially damaging to the Canadian health-care system."² As Schafer explains in his article, "The salient facts in this case are these: Hassan Rasouli has been unconscious and on life support since October, 2010. He is in a near-vegetative state with no realistic prospect for recovery. Although his body will inevitably deteriorate further, he can be kept alive, almost indefinitely, in a hospital intensive-care unit: He needs a tube down his throat so that he can breathe, a catheter in his bladder, large central tubes for fluids and medications, frequent surgical removal of infected skin tissue to prevent gangrenous infections, suctioning of his lungs to remove fluids that would choke him".

As Schaffer notes, "Mr. Rasouli's physicians propose that he should be given palliative care instead of life support. Continued ICU treatment is not merely "futile"; it is actively harmful. It can keep him alive, of course, but life is not an absolute value. Physician ethics does not permit procedures which on balance are harmful to the patient. Mr. Rasouli's wife, Parichehr Salasel, insists that her husband, as a devout Muslim, would want to be kept alive, even in these circumstances. She is his substitute decision maker (SDM or in American parlance Proxy for Health Care Decisions) and she refuses to consent to his discharge from the ICU and transfer to a palliative care program.

The judicial nuances and arguments in this case are not as important as the ultimate decision which was that according to the Supreme Court life support can be discontinued only with the consent of the patient or the SDM (proxy). Of equal interest of "rights" of patient autonomy is the hard fact that according to Schaffer, "in Canada, care in an ICU costs almost $1-million a year, per patient. Understandably, the number of ICU beds is limited and admission is strictly controlled." The numbers in the United States would be higher as almost all health care costs in the United States are substantially higher than their comparable cost in Canada.

The salient argument of Schaffer and one which appears already to resonate through the medical community as well as the administrators of hospitals is that, "The purpose of critical care is to save the life of the patient until the patient can recover to be discharged. The ICU is not intended for patients who can never recover. At present, critical-care doctors err on the side of admission. If they later discover that continued life support is futile, then the patient is discharged and receives palliative care instead."

If that equation is no longer assured, it could be that there will be a reluctance on the part of ICU physicians to admit patients who have small or marginal chances of ICU benefit if the risks are that treatment will have to be maintained long past the ability of the health care system to provide a degree of meaningful return to function—the use of religious standards could potentially endanger the integrity of the health care system; what limits can one then put on any religious belief that demands continued medical treatment no matter what the anticipated clinical outcome—modern medicine can keep organs going for a very long time.

As Schafer points out and something that is not addressed adequately by this current ruling but which is one of the foundational ethical principles on which modern medical practice is built is distributive justice. As he notes, "One person's provision is another person's deprivation." It is not hard to imagine a situation where a clinical situation was like Rasouli when the decision was made to admit him to the ICU. What if he had to been deprived of that admission and chance of recovery because another patient like Rasouli is now and whose family demanded continued treatment despite what many would deem to be futile or at least clinically non-beneficial treatment. One can imagine the implications of a patient dying because of ICU deprivation because of someone whose use of the ICU is outside it designated mandate.

Schafer's final conclusion is, "Cases such as those involving Mr. Rasouli…are comparatively rare. With sympathetic discussion and dialogue, a consensus can usually be reached. But in those cases where agreement is impossible to achieve, physicians are entitled to exercise their professional judgment. If the family disagrees, they can appeal to the courts." That is what happened in this case and the result is now part of the new equation of health care decision making.

The potential consequences remind me of a conversation I had some years ago with an American obstetrician and gynaecologist who said he had given up obstetrics because of the number of legal negligence cases he was handling at any given time. As he indicated, "Not having a perfect baby is always followed by a negligence or malpractice charge and even if at the end I am vindicated, the stress on my life in addition to my enormous malpractice insurance premiums are just much for me. I will just do gynaecology" Even for those who believe that births should be "natural" and promote the greater use of midwives, when things go wrong, it is physicians who provide the salvage. If they no longer will take on that role….it is the public, the potential mother and child who will be the victims.

For those of us who do eldercare and long-term care, what we can do is try to promote advance care planning in a way that assures that people address their future wishes and values and make sure SDMs and proxies will carry out their wishes and they really do understand the implications of their decisions. If one cannot be sure a proxy will indeed carry out the instructions it might be necessary to appoint an impartial person rather than a family member so that the emotional impact of what are often heart-wrenching decisions can be made according to ones' expressed wishes and values.

References

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Law and Ethics

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Blogs

Keyword

end-of-life

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Many people have come to view cardiopulmonary resuscitation (CPR) as a routine intervention following cardiac arrest, and they insist on CPR for their loved ones even when the physician explains its likely futility. Physicians who refuse a family member’s request to perform unwarranted CPR risk becoming the center of media, legal, and disciplinary scrutiny. Although CPR is largely perceived as a benign life-saving intervention, it inflicts indignity and possibly pain on a dying patient and should not be used when it is unlikely to succeed or to benefit the patient if successful. The growing acceptance of do-not-resuscitate orders for patients with advanced cancer has not spread to families of patients suffering from the late stages of other degenerative or terminal illnesses. Having blunt discussions about the true consequences and risks of CPR might foster greater willingness to abstain from administering CPR to patients unlikely to benefit.

This article was originally published by HMP Communications LLC (Annals of Long-Term Care: Clinical Care and Aging), 05/16/2011.

Michel Silberfeld, MD, FRCP, Department of Psychiatry, University of Toronto, Toronto, ON.

The requests for mental capacity assessments are increasing in number and variety. It is incumbent upon those who perform these assessments to ensure that they properly understand mental capacity. Mental capacity has a legal policy framework and is linked to specific legal criteria for capacity. Doing mental capacity assessments means understanding both the framework in which those assessments are carried out and the task of coming to a legally meaningful opinion.
Key words: mental capacity, allocation of rights, human potential, autonomy, adversarial process.

The Toronto Regional Geriatric Program (RGP) Elder Abuse Network
Rory Fisher, MB, FRCP(Ed)(C) (Chair), Madeline D'Arpino, RN, Tracey Dion, RT, Sherry Glazier, MSW, RSW, Rola Moghabghab, RN, MN, Elizabeth O, BSc.OT, Anne Stephens, BScN, MEd, GNC(C), Lynn Zimmerman, MSW, RSW.

The problem of elder abuse has been highlighted by the Ontario government's recent strategy. Considerable information is available about elder abuse but there is a lack of connection between this knowledge and the day-to-day activities of healthcare professionals. The Toronto Regional Geriatric Program therefore has developed an elder abuse workshop for frontline staff. In this workshop, elder abuse is defined, types of abuse are discussed, prevalence is addressed, victims and abusers are profiled and case discussions of an interactive nature take place. A post-workshop package is provided. The next step will be to develop a "train the trainer" model.
Key words: elder abuse, workshop, Ontario government, Regional Geriatric Program.

Michael Gordon, MD, FRCPC
Vice President Medical Services
and Head Geriatric and Internal Medicine,
Baycrest Centre for Geriatric Care,
Head, Division of Geriatrics,
Mt. Sinai Hospital,
Professor of Medicine,
University of Toronto,
Toronto, ON

Leigh Turner, Ph.D|
Baycrest Centre for Geriatric Care

Ethics Education in the Geriatric and Long-Term Care Setting
Baycrest Centre for Geriatric Care now has an innovative program in ethics education. Developing a well-rounded educational program in bioethics, intended to benefit all levels of staff within the geriatric and long-term health care setting, was a considerable challenge. With few models to emulate, this program was undertaken to provide the staff with the knowledge and means to respond to important ethical challenges in an appropriate manner. The system of unit-based ethics rounds, which has been implemented over the last several years, has been very successful and may serve as a prototype for other long-term care and geriatric facilities.

The Unit-based Model
The standard hospital model for providing assistance in resolving ethical issues includes an ethics committee that offers a consultation service. This structure, which exists at Baycrest, has been in existence for about a decade in the long-term care system, following its introduction to the acute care system years before.

Michael Gordon, MD, FRCPC
Vice President Medical Services and
Head Geriatric and Internal Medicine
Baycrest Centre for Geriatric Care
Head, Division of Geriatrics
Mt. Sinai Hospital
Professor of Medicine
University of Toronto

Cardiopulmonary resuscitation (CPR) is commonly perceived as a miraculous treatment that averts death. For many, the understanding of CPR comes from television and movies where, inevitably, death is cheated by heroic resuscitation. North Americans especially have, since its discovery more than thirty years ago, been fascinated with CPR.¹ CPR, however, is not always an appropriate or humane medical procedure. For defined segments of the elderly population, especially those requiring long-term institutional care, it may be a last, undignified rite of passage in a world that has become mesmerized by technology. It is for the benefit of this elderly population that we must strive to tailor our resuscitation policies in order to realistically serve their needs, without exposing them to ineffective CPR attempts. The goal of institutional policy should be to define the framework by which we can provide appropriately humane care without denying CPR to those members of older populations who can, within reason, hope to benefit from it.

Tracey Tremayne-Lloyd
and Lonny J. Rosen
Tremayne-Lloyd Partners
Toronto, Ontario

Introduction
Genuine and personal care, trust and friendship often characterize the relationship between a physician and his or her geriatric patient. In fact, your patient's regard for you may become so strong that a situation arises where you, as an attending physician, may be named as a beneficiary of his or her Will. This may place you in an awkward position, and indeed, if the patient's family complains, may attract College scrutiny. It is not unknown for a family to contest such a bequest on the grounds that the physician exercised undue influence, that the testator was incompetent, or both. The fact that a bequest is challenged, however, does not mean that the gift will be declared invalid.

Undue influence is more than persuasion; it is tantamount to coercion to the extent that another person overbore the volition of the person making the gift.

Undue Influence

Undue influence is more than persuasion; it is tantamount to coercion to the extent that another person overbore the volition of the person making the gift.

Tracey Tremayne-Lloyd and Lonny J. Rosen
Tremayne-Lloyd Partners,
Toronto, Ontario

Introduction
Of all the symptoms associated with illnesses that commonly affect geriatric patients, the most difficult to manage--for the patient and his or her physician--are those that affect the patient's mental faculties. Physicians attempting to treat geriatric patients who suffer the onset of mental illness, must deal with such issues as the patients' capacity to consent to treatment and their ability to participate in the management of their symptoms, including the regular taking of prescribed medication. While physicians always had tools embedded in provincial mental health legislation to assist them in the care of their mentally ill patients, these tools offered practically no alternative to committing patients to a psychiatric facility, something physicians have been loath to do.

After years of confusion within the mental health system, provincial governments in Mani-toba, Saskatchewan, British Columbia and now Ontario, have passed amendments to their mental health legislation which could lead to better care for people with serious mental disorders, including the elderly.

One of the main purposes of mental health legislation is to allow a medical practitioner to admit, or recommend for admission, to a psychiatric hospital for the purpose of an assessment, persons viewed by the practitioner as constituting a danger to themselves or others.

Doctor Beware! A Patient's Retained Licence Can Cause the Loss of Yours

Tracey Tremayne-Lloyd and Lonny J. Rosen
Tremayne-Lloyd Partners
Toronto, Ontario

Physicians who treat elderly patients are well aware of how important a driver's licence is to a geriatric patient. The ability to drive represents perhaps the greatest source of independence to an elderly patient. The driver's licence ensures that he can maintain an active lifestyle, keeps up his social interaction and family ties, and that he has the ability to seek support or treatment for his ailments. All of these support systems are crucial to the health and wellbeing of an elderly patient, particularly as his health begins to fail. For this reason, it is particularly difficult for a family physician to contact her local Ministry of Transportation office and report that a patient has become medically unfit to drive. However, in most Canadian provinces, it is the physician's legal obligation to report any patient who has become unfit to drive, even when that report will result in the patient losing his driver's licence and all of its attendant benefits (especially the patient's independence). It is important to remember that while it is the Ministry, and not you the doctor, who will determine whether a patient's licence should be revoked, it is your licence to practice that may be jeopardized if you fail to make the required report.

What Every Doctor Should Know About the Limits of Canada's Provincial Health Insurance Coverage in Foreign Jurisdictions

Tracey Tremayne-Lloyd
Lonny J. Rosen
Tremayne-Lloyd Partners,
Toronto, Ontario

Increasingly, primary care physicians are facing the stress of dealing with the wrath of patients who have incurred staggering and ruinous bills for medical attention while travelling outside of Canada. Notwithstanding the widespread publicity attracted by the amendments to the Health Insurance Act regarding out-of-province claims, enacted in 1992, patients continue to labour under the false impression that if they require emergency medical care outside of Canada, the provincial health insurance plan will pay for that care.

Considering the large number of rapidly aging individuals and their fixed income, an understanding of the provisions and limitations of the provincial health insurance reimbursements for the out-of-country medical services is a vital part of the practice of primary care physicians--particularly physicians who treat a significant number of geriatric patients. Physicians should offer counseling on the risks facing patients with pre-existing medical conditions who are preparing to travel out of the country. This may be considered a basic legal duty for every physician if they wish to avoid the possibility of being sued for negligence in case the patient falls ill and suffers financial ruin as a result of foreign medical bills.

Subscribe to Law and Ethics

Rasouli Decision in Canada: What does it mean for Health Care Professionals?

Assault as Treatment: Mythology of CPR in End-of-Life Dementia Care

Overview of Mental Capacity Assessments

An Elder Abuse Workshop for Healthcare Providers

Baycrest’s Unit-based Ethics Rounds: A Prototype for Long-term Care Facilities

Resuscitation Policies in Long-Term Care Institutions

Estate Matters: The Fine Line Between Friendship and Patient Coercion

Committing Patients Who are a Danger to Themselves or Others

When Loyalty and Duty Clash: Reporting Patients Who are Unfit to Drive

When Malady Strikes Outside Canada