There has been an increasing number of physician-backed cases that challenge our societal norms and which, I think, do more harm than good in the struggle to advance health law and policies in the current system. Last year in Cuthbertson v Rasouli, Sunnybrook Hospital physicians sought to remove life support for a patient against the wishes of the family and, more importantly, were trying to do so without having to go through a neutral arbitrator through the Consent and Capacity Review Board (where disputes between physician and family decisions are normally handled). More recently, physicians from McMaster’s Children’s Hospital sought to compel chemotherapy for a child with cancer, J.J., against the wishes of the parents. In both cases, the courts sided against the physicians. Here’s why they got it right.
The sticking point in these types of cases is who has the best interests of the patient in mind. In these types of health issues, “best interests” has come to mean “best medical outcomes”, and if that is the accepted meaning, then it is clear that physicians are the ones with the medical expertise to decide which interventions are most likely to yield the best outcomes. But patients do not make medical decisions based on what is in their best medical interests alone. Oftentimes, as in the cases above, religion and ideology play an important role. Some patients are more risk averse or risk comfortable than others and those factor into their decisions heavily. Timing and life circumstances may play a role. In some countries, patients may take into account financial considerations. The point is that a patient’s decision (or their parents’) to undergo a health intervention may be based on a wide range of factors, not simply the answer to which intervention produces the best medical outcome. To think that medical considerations are paramount may seem patient-centred, but it’s not.
Opponents to end-of-life regulation — which would make it possible for patients to seek the aid of a physician to end their life at their discretion — fear this type of physician activism. They fear that opening the doors to such regulation may be the first cracks in the ice to allowing cases like Cuthbertson and J.J.’s to succeed in the future. Even if physician-assisted suicide was not a live issue in Cuthbertson v Rasouli, the social climate in which the case was heard underscored the decision. The court said:
Artificial continuation of life will not always be in the best interests of the patient. While the sanctity of life is an important principle of our legal system, it is not absolute; it is subject to exceptions where notions of dignity must prevail. Further, the suggestion that life is an absolute value is contrary to medical and scientific notions of treatment.
Having a regulatory regime which allowed for assisted suicide may not have changed the final outcome, but for the more pessimistic, there is perhaps the fear that end-of-life legislation will allow physicians to take these decisions unilaterally. Whether or not those fears are founded, the general feeling of patients and families losing control over their personal health decisions by physicians taking them to court does not help the cause.
These types of situations are increasing. There is some suggestion that we should bypass the family in cases where a patient has consented to organ donation but the family does not approve. It may provide the best medical outcomes for all, but ignores non-medical factors involved with personal bereavement, or even legal issues of mistaken, vitiated or withdrawn consent. Other physicians are taking patient advocacy to a whole new level. Dr. Brian Day is challenging the very notion of a universal public health system in Canada by suggesting that patient care is best delivered through private, for-profit clinics. In J.J.’s case, the physicians were challenging the Children’s Aid Society and the Public Guardian, the very institutions society has already established to handle these types of cases.
Personally, I do not support the decision of parents withholding chemotherapy or vaccination for their child in the face of the scientific evidence. But I also do not support the use of the courts by the medical community to wrangle control from patients and parents to carry out what they feel is the best medical intervention in what is an otherwise complex, value-laden decision. As I mentioned, the Public Guardian and Children’s Aid Society are better equipped to handle these types of situations. What we need is for physicians and healthcare workers to continue to advocate for the best medical treatments in a way that doesn’t compromise their trust or overstep their expertise and recognize that, perhaps unfortunately, the best medical care may not always be the priority for families and patients.