BACKGROUND INFORMATION

Is the court in a position to intervene to require medical doctors to undertake particular treatment?

In Legal Liability of Doctors and Hospitals in Canada(4th Ed.) (Thomson-Carswell), the learned authors, Ellen I. Picard and Gerald B. Robertson, make this statement regarding "futile or inappropriate treatment":

"As we have seen, once a doctor-patient relationship is formed, the doctor's obligation is to treat the patient. However, this does not mean that the doctor has a duty to provide (and the patient a correlative right to receive) whatever treatment the patient may request. If a patient requests treatment which the doctor considers to be inappropriate and potentially harmful, the doctor's overriding duty to act in the patient's best interests dictates that the treatment be withheld.A doctor who accedes to a patient's request (or demand) and performs treatment which he or she knows, or ought to know, is contra-indicated and not in the patient's best interests, may be held liable for any injury which the patient suffers as a result of the treatment.

Likewise, there is no legal duty to perform treatment which the doctor reasonably believes to be medically futile, that is, treatment which offers no prospect of therapeutic benefit for the patient.However, many commentators have emphasized the potential dangers and problems underlying the concept of medical futility, particularly if it is interpreted broadly and used to justify the withholding of treatment for socio-economic and value-laden reasons.It is essential that strict limits be placed on this concept.Useful guidance is to be found in the report of the Special Senate Committee on Euthanasia and Assisted Suicide, which recommended that 'futility' in this context should be construed very narrowly to mean 'treatment that will, in the opinion of the health care team, be completely ineffective.'"

The question of whether the court exercising inherent jurisdiction can order a doctor to treat a patient in a manner contrary to the judgment of the doctor may not have been before a Canadian court.But see the case of Rotaru v. Vancouver General Hospital Intensive Care Unit,2008 BCSC 318.

In this case, the Honourable Mr. Justice Burnyeat (Feb/08) referred to Picard and Robertson in para. 11, and held as follows:

"[15] It should be noted that this decision does not involve the consideration of whether medical advisors can be prohibited from withdrawing forms of treatment or life-support systems.Accordingly, what is requested in this Petition can be distinguished from the situation that was before Schulman J. in Golubchuk v. Salvation Army Grace General Hospital et al, 2008 MBQB 49 (CanLII), 2008 MBQB 49.Rather, the Petition raises the issue of whether, after certain treatment has ceased, the Court is in a position to order that the treatment resume where the medical advisors state that it is in their bona fide clinical judgment that the former treatment is contra-indicated.It is the position of the Respondents that the Court cannot require a medical advisor to act in a manner contradictory to the fundamental duty which that medical advisor owes to the patient.

[16]When faced with a similar situation, the Lord Justices in Re J, supra, were of the view that they could not conceive of any circumstances in which it would be other than an abuse of power to require a medical practitioner to act contrary to the fundamental duty which that practitioner owed to his or her patient. The statements to that effect set out in clear and strong language the position taken in Re J, supra. I agree with that view.

[17] It should also be noted that the Court in Re J was dealing with the jurisdiction of the Court in the exercise of its inherent power to protect the interest of minors. I do not assume that there is a similar inherent jurisdiction available to the Court when dealing with patients who are not minors or that this inherent jurisdiction exceeds the traditional authority assumed by the Court when dealing with minors.

...

[19] As well, this is not a situation where other medical advisors have formed a quite different opinion about what treatment of Ms. Priboi is advisable.This is also not a situation where a medical advisor to Ms. Priboi is asking the Court to make an order that a particular course of treatment be undertaken where that course of treatment is opposed by those close to the patient.Without assuming that this decision would be different if contrary medical advice was in evidence, I am not in a position to accede to the relief sought by the Petitioner.Rather than dismiss the Petition, the hearing of the Petition is adjourned generally.

[20] However, I will order that all of the medical records available at Vancouver General Hospital will be made available to a licensed medical practitioner so that the Petitioner will be in a position to receive an independent view of what is in the best interests of her mother. I will remain seized of any application by a licensed medical practitioner regarding his or her recommended treatment of Ms. Priboi or of the further hearing of the relief sought by the Petitioner in this Petition. In the circumstances, the parties will bear their own costs of this application."

Denying Treatment

A patient or SDM acting pursuant to legislative framework (or if none applicable, common law principles) can decide that treatment should be withheld or withdrawn because it is futile. More often it is healthcare providers who want to end treatment, while the family wants it continued. Physicians may conclude that treatment is useless because the patient cannot benefit, while families urge that basic life functions can be maintained or restored, and that this patient's life, even if one of biologic existence only, should be preserved.

QUESTIONS:

1. What considerations should go into determining "best interests"?
2. How should we deal with ethical concerns?
3. There have been few lawsuits about access to healthcare, so they offer limited assistance. See if you can find information on the B..C. lawsuit involving Dr. Brian Day which as of late 2018 was still working its way through the court system.