|
Withholding and Withdrawal of Potentially Life-sustaining Treatment
|
|
The law in Canada is clear that medical treatment may only be provided where the healthcare provider has been given a valid consent by the person to be treated if he or she is competent or, if not, then by the person's substitute decision-maker, except in emergency situations.
The legal status of the withholding and withdrawal of potentially life-sustaining treatment varies according to the competence and associated features of the person from whom the treatment is to be withheld or withdrawn.
Click any of the links below to learn more about the withholding and withdrawal of potentially life-sustaining treatment.
|
|
Used with the permission of the Robert Pope Foundation
|
|
"It should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one's own body. This includes the right to be free from medical treatment to which the individual does not consent. This concept of individual autonomy is fundamental to the common law … ."
[Ciarlariello v. Schacter (1993), 100 D.L.R. (4th) 609 at 618 (Supreme Court of Canada)] | |
|
Treatment refusals by competent adults
If a competent adult voluntarily makes an informed decision to refuse potentially life-sustaining treatment, healthcare providers must respect that adult's treatment refusal.
The right of competent adults to refuse consent to treatment, even potentially life-sustaining treatment, was explained in a 1993 Supreme Court of Canada decision:
Canadian courts have recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued (Ciarlariello v. Schacter, [1993] 2 S.C.R. 119). This right has been specifically recognized to exist even if the withdrawal from or refusal of treatment may result in death (Nancy B. v. Hotel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que. S.C.); Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.)).
To read more about these cases, click the links to their summaries.
|
 |
|
Treatment refusals by incompetent adults with valid advance directives
If an adult patient is no longer capable of giving or refusing consent to treatment, and the patient has a valid advance directive, then the directive should be followed.
Also relevant here is common law. Common law recognizes the right of a competent person to refuse treatment and have that treatment refusal respected in the event that he or she should become incompetent:
A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient's right to forgo treatment, in absence of some overriding societal interest, is paramount to the doctor's obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient's life or health, and regardless of how ill-advised the patient's decision may appear to others.
[Fleming v. Reid (1991), 4 O.R. (3d) 74 at 85-86 (Ontario Court of Appeal)] |
|
|
Treatment refusals by incompetent adults who do not have a valid advance directive
If an adult patient is not capable of giving or refusing consent to treatment, and the patient does not have a valid advance directive, healthcare providers must identify the patient's substitute decision-maker and speak to that person about the treatment decision to be made.
If the patient's prior wishes are known, and the substitute decision-maker is acting in accord with the patient's prior expressed wishes, healthcare providers must respect the treatment refusal by the substitute decision-maker. If the patient's prior wishes are not known, and the substitute decision-maker is acting in the best interests of the patient, healthcare providers must respect the treatment refusal by the substitute decision-maker.
If healthcare providers are concerned that the substitute decision-maker is not acting in accord with the patient's prior expressed wishes (where known), or is not acting in the patient's best interests (where prior wishes are not known), the healthcare provider should seek legal advice on this matter.
You can read more about the legal issues discussed regarding treatment refusals in these case summaries.
|
|
|
Treatment refusals by mature minors
The status and scope of the right of competent mature minors to refuse potentially life-sustaining treatment remains somewhat unclear in most of Canada. Some provinces also address the issue of consent by minors in legislation. For example, see Manitoba Child and Family Services Act, S. M. 1985-86, c. 8. Under the common law, a mature minor is a person under the age of majority (18 or 19 depending on the province or territory) who is considered to be capable of understanding the scope of their illness and the consequences of accepting or rejecting treatment for that illness. It is likely that minors who understand the nature and consequences of the decision to refuse treatment will have their refusals enforced by the courts if the courts believe that the refusal is in the minors' best interests. Apart from those limited circumstances, however, it is not clear what will be done with respect to mature minors' refusals.
You can read these case summaries to find out more about treatment refusal by mature minors.
|
|
|
Treatment refusals by parents/guardians for incompetent minors
Under provincial child protection legislation, the common law, and the Canadian Charter of Rights and Freedoms, parents must act in the best interests of their children. If the healthcare provider believes that a parental or guardian decision to withhold or withdraw potentially life-sustaining treatment would be in the best interests of the child, then the treatment must be withheld or withdrawn. However, if the healthcare provider believes that treatment would be in the best interests of the child, then the provider must contact the appropriate authorities and seek authorization from the state (whether that be child and family services or a court) for the treatment.
The Supreme Court of Canada considered the common law status of refusals of treatment for incompetent minors in the case of Sheena B. Justice La Forest noted that:
The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being. In Hepton v. Maat, our Court stated: "The view of the child's welfare conceives it to lie, first, within the warmth and security of the home provide by his parents." This recognition was based on the presumption that parents act in the best interest of their child. The Court did add, however, that "when through a failure, with or without parental fault, to furnish that protection, that welfare is threatened, the community represented by the Sovereign, is, on the broadest social and national grounds, justified in displacing the parents and assuming their duties." [footnotes omitted]
B(R) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315
Thus, under the common law, parents have the authority to refuse potentially life-sustaining treatment on behalf of their children. However, this authority is limited in that it will be overridden by the state if the decision is not in the best interests of the child. |
|
Click here to find out more about withholding and withdrawing potentially life-sustaining treatment in Canada.
|
|
