Futile or fruitful: the charter and the decision to withhold or withdraw life-sustaining treatment.

1. Introduction Whether from a tragic accident, or a long and protracted illness, there can come a point where health care practitioners, spouses, parents or other family members must decide whether potentially life-sustaining treatment should be withheld or withdrawn from a patient no longer competent or capable to consent. Often a consensus is reached based on knowledge of the wishes of the patient through an advanced directive or some other previous expression of their wishes. Other times, a consensus is reached through recognition that further treatment is of no benefit to the patient. All involved agree it is in best interests of the patient to withhold or withdraw life-sustaining treatment. In Canada, it has been acknowledged that physicians pull the plug on incompetent patients daily without any interference from the law. (1) In the United Kingdom, the Intensive Care Society estimates 15,000 people die annually in intensive care wards and that most result from the withdrawal or limiting of treatment. (2) The question one is left with is what happens when the recommendation of the health care practitioner conflicts with the expressed wish or advanced directive of an incompetent patient, or that patient's substitute decision-maker? Although provinces and territories in Canada have enacted statutes governing issues of consent, advanced directives, and/or substitute decision-making for incompetent patients, the question of who has the final authority when a demand for life-sustaining treatment is made has not been answered by statute. (3) When substitute decision-makers or family members disagree with the recommendation of a health care practitioner, aside from an informal dispute resolution system that may exist under hospital policy, the only recourse appears to be the courts. Although case law suggests this decision is to be made by the doctor, it remains unresolved as to whether there could be a rights-based argument in favour of life-sustaining treatment. In the English case of Burke (4), a rights-based argument succeeded at trial but was later overturned on appeal. (5) In Canada, although Charter (6) implications of end-of-life decisions have been raised on interlocutory applications (7), a full Charter argument has not been made. This paper examines whether a Charter argument would be futile or fruitful in challenging a decision to withhold or withdraw life-sustaining treatment. The author considers other Charter cases, the Burke and Burke CA decisions, and case law from Canada and Australia. This paper focuses on challenging a decision to withhold or withdraw life-sustaining treatment from an incompetent or incapable patient. It is generally accepted a competent or capable patient can refuse life-saving (8) or life-sustaining (9) treatment. The issues related to whether a competent patient can refuse to consent to the withdrawal of treatment requires separate exploration. 2. The State Of The Common Law (a) Canada In Canada, the starting point for the authority to withhold or withdraw treatment of an incompetent patient is the case of R.L. (10) In this case a child, apprehended because of alleged abuse, was in a persistent vegetative state (PVS). Child and Family Services, based on their governing statute, obtained an order allowing them to provide consent for the doctors to impose a do not resuscitate (DNR) order on the child. The parents appealed the order. The Manitoba Court of Appeal held that neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction, where in his or her judgment, the patient is in an irreversible vegetative state. (11) As for the wishes of the parents, or the child's Guardian, their wishes should be taken into account, but their consent or approval is not required. (12) A slightly different conclusion was reached in London Health Sciences. (13) In this case, the patient was an 80-year-old man on life support. …

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