The case of Wawrzyniak v. Livingstone, 2019 ONSC 4900 (CanLII) is a landmark decision that readers may find interesting. It clarifies physicians’ obligations with respect to the writing of no-CPR (cardiopulmonary resuscitation) orders and the provision of CPR in Ontario hospitals. The decision has led to the College of Physicians and Surgeons of Ontario (CPSO) to update their policy addressing end of life care.[i]

Until now, the policy from the CPSO regarding end-of-life decision-making required consent for physicians to withhold CPR, regardless if the physician believed CPR would not be beneficial for the patient, such as those with advanced dementia.[ii] [iii]

The following case from my practice provides context to the significance of this court decision. An elderly man in his mid-90s was a patient on our Seniors Mental Health Inpatient Unit at Mississauga Hospital. He was suffering from advanced Alzheimer’s disease. He had no family and was living in a group home prior to admission. He was admitted because of behavioral and psychological symptoms of dementia with responsive aggressive behaviours. He developed urinary retention and had an indwelling urinary catheter. This resulted in recurrent infection and delirium causing his dementia to progress more rapidly. He was incapable to consent to all treatments and consent was provided by the Office of the Public Guardian & Trustee (PG&T) on his behalf.

Subsequent to treatment for his behavior, he became cooperative with care. He was markedly apathetic and was able to communicate only minimally with little spontaneous speech. He could not partake in any purposeful behaviour and his daily routine was essentially a repetition of receiving care for his hygiene, eating and sleeping. He was a war vet and was on a wait list for admission to the veterans long-term care facility at Sunnybrook. His treatment plan included a CPR order in case of cardiac or respiratory arrest as the PG&T maintains a policy of refusing to provide consent for a no CPR order as part of an advanced directive.

One day while the nurse was setting him up for lunch he suddenly collapsed. He was pulseless, so a code blue was called. Our nursing staff initiated CPR and within minutes the cardiac arrest code blue team arrived, led by a young physician. The code blue team includes a physically robust security guard who provided cardiac compressions causing undoubtedly multiple rib fractures to the patient. The code seemed to last an eternity, but in reality perhaps 10 minutes, when suddenly his pulse returned. The physician explained that it was likely his heart would stop again once the effect of the adrenaline medications wore off. Nonetheless, the patient was intubated and kept alive with respiratory support. He was transferred to the intensive care unit where he never regained consciousness. After several days, consent was provided by the PG&T to withdraw life-support and the patient expired.

My experience witnessing this code blue was emotionally distressing. I was indignant that the body of an elderly man in the end stages of dementia, a progressively terminal illness for which there is no hope for recovery, was put through this high level of trauma. In my clinical opinion, the resuscitation efforts were a futile exercise that caused more harm than good for the patient.

In Wawrzyniak v. Livingstone the Court determined that the withholding of CPR, including the writing of a no-CPR order, is different than the withdrawal of life-sustaining treatment and consent is actually not required. Instead, the Court found that physicians are only obliged to provide CPR when doing so is within the standard of care.

In response, the CPSO has updated its end of life care policy to remove any impression that the College requires consent to be obtained prior to writing a no-CPR order. It also makes clear that the College does not require physicians to provide CPR in instances where doing so is not in accordance with the standard of care.

The policy now states that before writing a no-CPR order in the patient’s record, physicians must inform the patient and/or substitute decision maker (SDM) that the order will be written and why. The language has been simplified and revised to be clear that the obligation is to inform, not to make a recommendation or proposal.

If the patient or SDM disagrees and insists that CPR be provided, physicians must engage in the conflict resolution process as outlined in the policy. However, the amendment allows physicians to make appropriate in-the-moment treatment decisions.

Regarding conflicts between physicians and SDMs, the Court provided the following commentary with regards to an SDM advocating for a treatment deemed by a physician as unreasonable or inappropriate: [408] “With respect to the relationship between a physician and a substitute decision-maker, the physician cannot undertake to put the substitute decision-maker’s interests above those of all others. Such an undertaking would, possibly, conflict with the duty of care owed by a physician to his or her patient.”

I suggest the lack of need for consent for a no-CPR order will actually ease the burden of substitute decision making for incapable seniors with advanced dementia. SDMs often feel they are put in the uncomfortable position of deciding the course of treatment for the patient when asked to provide consent for a no-CPR order. This is not what the role of an SDM was meant to be. The Court’s decision is in keeping with the role of an SDM as defined in the Health Care Consent Act: to make decisions on behalf of the incapable patient for proposed interventions and treatments, not to be responsible to direct the care provided. Rather, that is the role of the physician, now clearly confirmed by the Court.

[i] Dialogue. College of Physicians and Surgeons of Ontario. ISSUE 3, 2019 page 29.

[ii] Planning for and Providing Quality End-of-Life Care. Toronto: The College of Physician and Surgeons of Ontario; 2015 [updated]. Available: https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Planning-for-and-Providing-Quality-End-of-Life-Car (accessed March 9, 2016).

[iii] Downar, J., Warner, M., & Sibbald, R. (2016). Mandate to obtain consent for withholding nonbeneficial cardiopulmonary resuscitation is misguided. CMAJ: Canadian Medical Association journal= journal de l’Association medicale canadienne.