11 Dec Michael Waite quoted in The Lawyers Weekly on terminal care laws
This article originally appeared in the December 12th, 2014 issue of The Lawyers Weekly. Any other use (reprint in a newsletter, for example) requires further permission requests.
‘Unsettled’ terminal care laws at issue in Alberta
A recent Alberta court battle over end-of-life care has left legal experts disagreeing about whether the law is settled in answering the thorny legal question of a doctor’s right to withdraw life-sustaining treatment from patients without the consent of their family or loved ones.
In Chalifoux v. Alberta Health Services  A.J. No. 1216, Justice Debra Yungwirth of the Court of Queen’s Bench authorized the removal of a mechanical ventilator from a severely disabled infant, despite the mother’s wish to continue treatment.
The court heard that the baby was born with a typically fatal genetic defect that, among other things, prevented her chest from accommodating her lungs. Medical experts, including an independent physician retained by the mother, testified that the baby had no hope of improvement or recovery and appeared to be in pain.
After receiving notification that the health care team intended to cease providing mechanical ventilation to the baby, the mother Roseanne Chalifoux sought an injunction against the hospital.
In written reasons released Nov. 3 following an oral decision in August, the judge sided with the hospital in deciding that efforts to prolong the infant’s life were not in her best interest and removing her from life support was the “kindest” option available. The judge denied the request for an injunction and used her authority under the province’s Family Law Act to authorize the hospital to remove the ventilator and implement a palliative treatment plan.
However, Justice Yungwirth also refused to accept the hospital’s position that it had the right to remove the ventilator without seeking court permission, which it based on the Manitoba Court of Appeal’s 1997 decision in Child & Family Services of Central Manitoba v. L(R).
“It appears that no court in Alberta has gone as far as endorsing the position taken by the Respondents in this regard,” wrote Justice Yungwirth.
Dalhousie law professor Jocelyn Downie sees the decision as the latest in a trend toward judgements acknowledging uncertainty in this area of law.
She noted that while the law clearly requires health care providers to seek court permission to provide treatment against the wishes of a patient’s substitute decision-maker, there is no clear decision on whether it must do the same in cases where physicians wish to withdraw or withhold treatment.
“We have cases going both directions across the country,” she said, adding that she disputes the position taken by many physicians that common law gives them the right to cease treatment.
“My position is that (doctors) recognize they don’t have unilateral authority with respect to treating against the patient’s substitute decision-maker’s wishes, so too, the logic applies that they don’t have the authority to withhold treatment.”
The exception is in Ontario, where a decision by the Supreme Court of Canada in Cuthbertson v. Rasouli  S.C.J. No. 53 found that health care providers had to either obtain the permission of the substitute decision-maker or get permission from the province’s Consent and Capacity Board to remove life support from a severely brain-damaged man.
As that case didn’t address common law issues, it offers little guidance to provinces without similar boards, said Downie.
But Alberta lawyer Michael Waite, who teaches health law at the University of Calgary and chairs the Canadian Bar Association’s health law section, believes the law, at least in Alberta, is settled around the issue of the rights of health care providers.
He said a “line of Alberta cases” has effectively determined that health care teams have the right to proceed without consent in “the very exceptional cases where care is being requested that is futile, not in the patient’s best interests and not clinically indicated,” despite the fact the Manitoba decision has not been explicitly endorsed.
“Just because a court in Alberta has not made the express statement that doctors have the unilateral right to withdraw treatment without consent doesn’t mean that it isn’t the law,” he said.
Adding that “consent is a shield, not a sword,” Waite said that when patients aren’t being offered treatment — even if it is end-of-life care —there’s no decision to be made requiring consent.
Waiting for higher court decisions to resolve this issue is problematic, Downie warned. Along with being expensive and daunting for families, cases frequently end up being moot because patients don’t survive long enough to get a decision.
Describing it as “a terrible way to make law,” she hopes cases like Chalifoux will pressure legislators to address end-of-life issues through legislation and the creation of bodies like Ontario’s Consent and Capacity board.
Waite questions how effective such boards would be, arguing they can be just as slow as the court system and their decisions remain subject to appeal. He suggests policies and procedures that help build consensus around treatment are most useful. “My view is that the focus should be on preventing these disputes.”
While Edmonton health care lawyer Jonathan Rossall agrees that specialized expert panels might be more effective than the court system for adjudicating disputes, he argues that the issue of resource allocation must be considered.
“I think it’s the elephant in the room in these kinds of cases but in Alberta, as in all other provinces, we have limited resources to apply to health care,” he said. “I just wonder when someone is going to have the courage to stand up in court and make that argument.”