The cases before the court of Shalom Ouanounou and Taquisha McKitty[i] focus on the declaration of brain death and the withdrawal of life-sustaining treatment without consent. I will not address the issue of declaration of brain death as that lies outside my scope of practice, but rather will comment on consent issues as they relate to end-of-life decision-making.
The law makes clear that consent is a sufficient condition for the withdrawal or withholding of life saving treatment by competent patients either in the moment or by way of advance directives, and may be made by substitute decision-makers in the case of incapable patients.[ii] [iii] The law is also now clear that with consent, albeit by the individual and not by advanced directive nor by a substitute decision-maker, is a sufficient condition for medical assistance in dying (MAiD).[iv] Whether a physician or hospital can legally withdraw potentially life-sustaining treatment without the consent of either the patient or the patient’s substitute decision-maker is currently part of the issue under debate. It remains unclear whether a patient’s substitute decision-maker can require the maintenance of life-sustaining treatment against medical advice.
I suggest the following issues related to consent to consider. If a person can legally request and consent to MAiD against medical advice then why would a person (granted in the cases mentioned above via a substitute decision-maker but in keeping with expressed wishes while capable) not be permitted to request life-sustaining treatment against medical advice? Capable wishes are not determined by evaluation of the outcome chosen. People have the right to make choices against medical advice.
Consent to MAiD does not hinge upon availability of healthcare resources, value judgment about quality of life or determination of best interests by the physician. For capable patients it is not for the physician evaluating the MAiD decision-making process to judge when a patient’s suffering has become unbearable and life has lost meaning and purpose; this is a deeply personal and private choice.
Why then would that be any different for consent to maintain life-sustaining treatment. For patients with known advanced wishes while capable that a substitute decision-maker wishes to abide by, shouldn’t assessment of that decision also not hinge upon availability of healthcare resources, value judgment about quality of life or determination of best interests by the physician?
A health care provider’s bias towards willingness to provide MAiD may be mediated by various factors which may or may not include lack of religious belief, diminished empathy, and lack of sufficient knowledge of symptom management for a particular condition. No different could these biases impact a health provider towards unwillingness to accept consent for maintaining life-sustaining treatment.
As a community we need to be aware of all the issues pertaining to the two sides of the same coin of consent and end-of-life decision-making.
[ii] Malette v. Shulman (Ont. H.C.J.), 1987 CanLII 4096 (ON SC)
[iii] Malette v. Shulman (Ont. C.A.), 1990 CanLII 6868 (ON CA)
[iv] Carter v. Canada (Attorney General) 2015 SCC 5