"Legal Framework

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"Legal Framework

  1. 1. Legal Framework & CasesLegal Framework & Cases AffectingAffecting Critical Care in OntarioCritical Care in Ontario Joan M. GilmourJoan M. Gilmour,, B.A., LL.B., J.S.M., J.S.D.B.A., LL.B., J.S.M., J.S.D. Osgoode Hall Law School, York UniversityOsgoode Hall Law School, York University ““The Grey Matter: Critical Care, Ethics and the Law”The Grey Matter: Critical Care, Ethics and the Law” Pre-Conference Workshop, November 10, 2008Pre-Conference Workshop, November 10, 2008
  2. 2. ConsentConsent and the Health Care Consent Actand the Health Care Consent Act Must have prior consent to treatment, andMust have prior consent to treatment, and consent must be informed and voluntary;consent must be informed and voluntary; Common law; now largely codified inCommon law; now largely codified in Health Care Consent Act (HCCA);Health Care Consent Act (HCCA); Person must havePerson must have capacitycapacity to consent,to consent, i.e. able to (i) understand relevant info. &i.e. able to (i) understand relevant info. & (ii) appreciate reasonably foreseeable(ii) appreciate reasonably foreseeable consequences of deciding or not (s.4);consequences of deciding or not (s.4); Emergency exception (s.25)Emergency exception (s.25)
  3. 3. CapacityCapacity Health care provider proposing trt. decidesHealth care provider proposing trt. decides re capacity (in first instance) (s.10);re capacity (in first instance) (s.10); Presumption of capacity (s.4 (2);Presumption of capacity (s.4 (2); Capacity can be trt-dependent and comeCapacity can be trt-dependent and come & go over time (s.15);& go over time (s.15); If patient is incapable, then substituteIf patient is incapable, then substitute decision maker (SDM) consents to ordecision maker (SDM) consents to or refuses treatment.refuses treatment.
  4. 4. Substitute Decisions ActSubstitute Decisions Act Power of attorney (POA) for personalPower of attorney (POA) for personal carecare (made by person concerned; low %(made by person concerned; low % of population have one);of population have one); Who can make (min. age; test forWho can make (min. age; test for capacity);capacity); Re health care: POA can say whoRe health care: POA can say who decides, what to decide, or both;decides, what to decide, or both; Also,Also, guardianshipguardianship (court order).(court order).
  5. 5. Substitute Decision-Making in theSubstitute Decision-Making in the HCCA: Guidance PrinciplesHCCA: Guidance Principles S.20: Who decidesS.20: Who decides for another: lists SDMs infor another: lists SDMs in order of priority – appted by ct, person (POA) ororder of priority – appted by ct, person (POA) or Consent & Capacity Brd (CCB), then descendingConsent & Capacity Brd (CCB), then descending degree of relation; last resort = Public Guardiandegree of relation; last resort = Public Guardian & Trustee (PGT);& Trustee (PGT); S.21S.21:: How to decideHow to decide for another: (i) follow priorfor another: (i) follow prior capablecapable wisheswishes if apply & person was at leastif apply & person was at least 16; (ii) if none, SDM to act in best interests;16; (ii) if none, SDM to act in best interests; S.5: WishesS.5: Wishes: can be expressed in any form.: can be expressed in any form.
  6. 6. Determining Best InterestsDetermining Best Interests HCCA s.21(2)HCCA s.21(2) SDM shall consider:SDM shall consider: Prior capable values and beliefs;Prior capable values and beliefs; Incapable person’s wishes;Incapable person’s wishes; Treatment factors: Is the trt likely toTreatment factors: Is the trt likely to - Improve condition or well-being;Improve condition or well-being; - Prevent deterioration;Prevent deterioration; - Reduce extent or rate of deterioration; +Reduce extent or rate of deterioration; + Effect of non-trt on person;Effect of non-trt on person; Weigh benefit & risk of harm from trt;Weigh benefit & risk of harm from trt; Least restrictive or intrusive trt for this benefit?Least restrictive or intrusive trt for this benefit?
  7. 7. Consent & Capacity BoardConsent & Capacity Board Person concerned can challengePerson concerned can challenge practitioner’s finding of incapacity (s.32);practitioner’s finding of incapacity (s.32); Health care practitioner can challengeHealth care practitioner can challenge SDM’s compliance with s.21 (decisionSDM’s compliance with s.21 (decision making principles) (s.37);making principles) (s.37); SDM or HCP can apply to CCB to clarifySDM or HCP can apply to CCB to clarify wish or to disregard it if likely result muchwish or to disregard it if likely result much improved from when made (ss. 35, 36);improved from when made (ss. 35, 36); Further review by court.Further review by court.
  8. 8. Conflicts in Decision MakingConflicts in Decision Making Decisionally capable patient:Decisionally capable patient: conflictsconflicts with hcp’s about what trt will be provided;with hcp’s about what trt will be provided; Decisionally incapable patient:Decisionally incapable patient: conflictsconflicts between SDM & hcp’s, eg. (i) is SDMbetween SDM & hcp’s, eg. (i) is SDM following HCCA s.21 (prior wishes or bestfollowing HCCA s.21 (prior wishes or best interests); and/or (ii) what trt will/must beinterests); and/or (ii) what trt will/must be provided?provided? Disagr’t amg family (Disagr’t amg family (Janzen –Janzen – competingcompeting guardians proposed) or care team.guardians proposed) or care team.
  9. 9. Developing JurisprudenceDeveloping Jurisprudence Standard of review of SDM decision to consentStandard of review of SDM decision to consent to or refuse trt: correctness (to or refuse trt: correctness (A.M. v. BenesA.M. v. Benes);); Standard of review of CCB: reasonableness reStandard of review of CCB: reasonableness re facts (facts (T(I) v. L(L))T(I) v. L(L)); correctness re law (; correctness re law (StarsonStarson);); What = role/power of PG&T as SDM? Can’tWhat = role/power of PG&T as SDM? Can’t absent self (absent self (SawatzkySawatzky – Man.); statutory interp.– Man.); statutory interp. to determine scope of authority to decide (to determine scope of authority to decide (ReRe L.I.C.L.I.C. – Alta.);– Alta.); What’s a “wish”, and when does it apply?What’s a “wish”, and when does it apply? ((Scardoni v. Hawryluck; Conway v. Jacques).Scardoni v. Hawryluck; Conway v. Jacques).
  10. 10. ““Futile” TreatmentFutile” Treatment Consensus: capable patient can refuseConsensus: capable patient can refuse even life-sustaining trt (even life-sustaining trt (RodriguezRodriguez) (and so) (and so can SDM when authorized eg. if followcan SDM when authorized eg. if follow HCCA s.21 re decision-making –HCCA s.21 re decision-making – Re K &Re K & London Health Sciences CentreLondon Health Sciences Centre);); No similar consensus re “futile” trt i.e.No similar consensus re “futile” trt i.e. SDM (or pt) wants trt to continue but hcp’sSDM (or pt) wants trt to continue but hcp’s say trt can do no good & would evensay trt can do no good & would even actively harm patient.actively harm patient.
  11. 11. Ongoing IssuesOngoing Issues How weigh different considerations in “bestHow weigh different considerations in “best interests” determination? (interests” determination? (Scardoni v.Scardoni v. Hawryluck; JanzenHawryluck; Janzen);); What trt should/must be offered? Extent of MD,What trt should/must be offered? Extent of MD, pt, SDM & judges’ decision-making authoritypt, SDM & judges’ decision-making authority ((SawatzkySawatzky – Man.– Man.; Yeung –; Yeung – N.SN.S.);.); How do/should (individual views abt) religion,How do/should (individual views abt) religion, culture, health care etc. affect decision-making?culture, health care etc. affect decision-making? ((ScardoniScardoni;; YeungYeung).).
  12. 12. And More Issues…And More Issues… How take account of patient’s disability?How take account of patient’s disability? Impact of Charter of Rights and OntarioImpact of Charter of Rights and Ontario Human Rights Code;Human Rights Code; Weight of & limits on medical expertise;Weight of & limits on medical expertise; Role of ethical and other considerations;Role of ethical and other considerations; What does shared decision-makingWhat does shared decision-making mean?mean? Role of & limits on hospital / institution;Role of & limits on hospital / institution; Role of & limits on courts; and others….Role of & limits on courts; and others….

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