Withholding and Withdrawal FAQ

What does "withholding potentially life-sustaining treatment" mean?

Withholding potentially life-sustaining treatment means not starting treatment that has the potential to sustain the life of a patient-for example, not starting cardiopulmonary resuscitation (CPR) when a patient's heart suddenly stops beating.

What does "withdrawal of potentially life-sustaining treatment" mean?

Withdrawal of life-sustaining treatment means stopping treatment that has the potential to sustain the life of a patient-for example, stopping artificial nutrition and hydration for a patient in a persistent vegetative state.

Is the withholding and withdrawal of potentially life-sustaining treatment legal in Canada?

Any competent person should have the right to refuse treatment of any kind and to insist that treatment already begun be discontinued either temporarily or permanently.

Law Reform Commission of Canada Report, Working Paper 28 Euthanasia, Assisting Suicide and Cessation of Treatment, (Ottawa: Minister of Supply and Services Canada, 1982)

Yes, both are legal. They have the same legal status. In the 1993 Supreme Court of Canada case, Rodriquez v. British Columbia (Attorney General), ([1993] 3 S.C.R. 519), Justice Sopinka, writing for the majority of the Court, made three statements to the effect that there is a common law right to refuse even potentially life-sustaining treatment:

That there is a right to choose how one's body will be dealt with, even in the context of beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses constitutes battery, and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn (at page 588).

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a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued (Ciarlariello v. Schacter, [1993] 2 S.C.R. 119).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.)).

Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient's instructions to discontinue treatment. To continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery (Ciarlariello and Nancy B., supra).

Can I say I want a treatment and then change my mind about wanting it?

Yes you can. You are always allowed to change your mind about your medical care and demand that treatment already started be stopped. If your refusal is free and informed and you are still competent, your wishes should be respected and the treatment should be stopped.

As a healthcare provider, must I respect treatment refusals by patients/substitute decision-makers?

The answer to this question depends upon several variables: whether the patient is competent, has an advance directive, is a minor.

As a healthcare provider, can I withhold or withdraw potentially life-sustaining treatment without the consent of the patient/substitute decision-maker?

The law in Canada on the withholding and withdrawal of potentially life-sustaining treatment by a healthcare provider without the person's consent (or the person's substitute decision-maker) is not clear. Recently, two cases have come before the courts which have considered this issue.

In the first case, R.L., the Manitoba Court of Appeal decided a case involving a child in a persistent vegetative state. The physicians wished to enter a Do-Not-Resuscitate (DNR) order on the child's chart, the parents disagreed, and legal action ensued. The trial judge agreed that a DNR order was in the child's best interests and authorized the placement of the order. On appeal, the Court of Appeal agreed that the DNR order was in the child's best interest but found that consent from the parents of an infant was not necessary for the physician to enter a DNR order on the child's chart. On a broader note, the Court wrote:

[N]either 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 a persistent vegetative state. Whether or not such a direction 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. The wishes of the patient's family or guardians should be taken into account, but neither their consent nor the approval of the court is required.

[Child and Family Services of Central Manitoba v. R.L. (1997), 154 D.L.R. (4th) 409 (Manitoba Court of Appeal)]

In the second case, Mr. Sawatzky, an elderly man with Parkinson's disease and numerous other health problems, was a patient in the Riverview Health Centre. His physician placed a DNR order on his chart without notifying him or his wife (who was also his substitute decision-maker). Mrs. Sawatzky objected to the order. She retained legal counsel and commenced a proceeding to try to prevent the hospital from keeping the order on her husband's chart. The judge sent the parties away with instructions to gather more information. Mr. Sawatzky was transferred to a different institution that was prepared to accept him as a patient without a DNR order on his chart.

At the end of the day, what do these cases mean for patients and healthcare providers? Unfortunately, these are the only cases in Canada on the issue of unilateral withholding and withdrawal of potentially life-sustaining treatment and they are binding only in Manitoba. Furthermore, these cases have been the subject of considerable academic debate. Some claim that the R.L. case is wrong in law. Others claim that these cases are correct in law and correctly represent the law throughout Canada. Case summaries for R.L. and Sawatzky are in this site's library.

Clearly the Supreme Court of Canada or the provincial and territorial governments need to address and resolve this issue. Until this happens, in any particular case, if there is a disagreement between healthcare providers and patients/families about treatment options, and if agreement cannot be reached through a process of dispute resolution, then legal advice should be sought.

What do healthcare provider associations say about withholding and withdrawing potentially life-sustaining treatment?

The Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care, Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association, and the Catholic Health Association of Canada

This statement deals primarily with conflicts between the person receiving care (or his or her proxy) and healthcare providers. The statement offers guidance for the development of policies for preventing and resolving ethical conflicts about the appropriateness of initiating, continuing, withholding, or withdrawing treatment.

Making Decisions About CPR, Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada

This resource was jointly developed to identify issues that should be considered when making decisions about CPR (cardiopulmonary resuscitation).

Position Statement on End-of-Life Issues, Canadian Nurses Association

The Canadian Nurses Association believes in the client's right to refuse treatment. CNA supports the right of a competent person to refuse or withdraw consent to any clinically indicated treatment, including life-saving or life-sustaining treatment.

Where can I find more information on withholding and withdrawing treatment?

The End of Life Project's library is a good place to start your search for more information. This link will take you directly to the section on withholding and withdrawing potentially life-sustaining treatment.