Ethics and Health Care: End of Life and Critical Care Decisions: Legal and Ethical Considerations Helga D. Van Iderstine
Legal Framework Breach of Fiduciary Duty Battery Negligence Breach of standard of care Lack of informed consent
Breach of Fiduciary Duty Physician patient relationship one of trust, and utmost good faith in the discharge of the provision of health care. Claims typically involve Breach of confidence Failure to advise Taking advantage of the physician patient relationship for the benefit of the physician
Battery Non consensual touching/bodily contact No person has the right to touch another without their consent A person has the right to bodily security Person has the right to determine what medical treatment, if any, they will permit
Battery Medical context Occurs when consent to treatment is neither implicitly nor explicitly provided Or where there has been an explicit refusal to a procedure Examples: Amputation of wrong limb Administration of blood products or other treatment contrary to the express wishes of a patient Intubation or other lifesaving procedures contrary to request of patient
Negligence Duty Breach of duty standard of care Damages Causation
Standard of Care Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability. Crits v Sylvester( 1956 ) 1 DLR ( 2d) 502 at 508
Consent Lack of informed consent Aspect of the negligence and is not an aspect of battery Consent to treat is implied or expressed Issue is whether the patient was fully informed about the treatment prior to providing consent
Lack of Informed consent The fundamental issue raised by a claim framed as lack of informed consent relates to the patient s right to know and make decisions about treatment by being fully informed
Lack of Informed Consent Two part test a. physician must inform patient And if not properly informed b. would the reasonable person in the patient s circumstance have consented to the treatment
Lack of Informed Consent So before embarking on treatment physician must disclose material and special and unusual risks Patient s questions are to be answered If there has been no discussion about consent or if there has been an insufficient discussion the Court applies a reasonable person test to determine objectively whether a patient in similar circumstances would have consented to the treatment having been fully informed
Battery/Lack of informed consent Battery Physician treats without consent or contrary to patient s express instructions not to treat Lack of Informed Consent Consent to treatment is provided Not advised fully of risks associated with treatment Would reasonable person in similar circumstances consent
Other forms of action Charter violation security of person freedom of religion Human rights violation Breach of Contract
Injunction Must be a serious question to be tried Plaintiff must demonstrate there will be irreparable harm if the injunction is not granted Balance of convenience must favour the granting of the injunction
Golubchuk 84 year old man Four years earlier suffered fall Severe head injury No advance care directive Son obtains Court order appointing him substitute decision maker Insists on surgery Patient requires left parietal/frontal/temporal lobectomy to survive.
Progress June 2003 October 2007 Lives in Chronic Care home Tracheotomy inserted Feeding tube inserted Non ambulatory No communication Little or no awareness of environment Frequent admissions to hospital for UTI, pneumonia, bacteremia
Admission to hospital October 26, 2007 Develops pneumonia Severe respiratory distress Fluid retention Heart block Fails to respond to antimicrobial therapy Developing septic encephalopathy, respiratory failure and shock
Conflict Attending physician raises end of life issues Family requests life support be provided Only available in ICU
Negotiation Attending consults ICU staff who decline admission to ICU but agree to re-assess if condition changes November 7, 2007 condition deteriorates, ICU is consulted and ICU physician agrees to short-term ICU admission to assess for reversibility End of week, there is no substantial improvement it appears that a patient cannot improve to a point of leaving ICU but can be sustained with continued ventilator, intermittent pressor/inotropic support Also requires continued active medical management for electrolyte imbalances and renal failure Discussion with family about worsening medical condition and prognosis Patient has a near complete loss of consciousness, rarely opening eyes
Religion The family wants to consult with Rabbi who advises continued care The expressed opinion of the Rabbi and the family is that they and the caregivers must do all they can to preserve life Includes continued support in the ICU
Ethics Consult November 15, 2007 ethics consult, recommends continued discussions with family so that they are kept informed of the decision to withdraw care and why Patient begins to develop sepsis and worsening bed sores - Senior attending starts on service - Additional tests are performed indicating severe pulmonary hypertension (apparently incompatible with prolonged life) and chronic borderline cardiogenic shock
Second opinion Family conference held with senior attending, ICU staff and nurses to discuss withdrawal of life support and worsening medical condition - The family asks ICU attending to speak to a physician of their choice about medical issues and with another physician who is a family friend - Done The family believes that termination of therapy is contrary to their religious views and that a failure to implement any therapy or withdrawal of therapy is murder
Negotiation, consultation, third opinion November 27, 2007 another family conference. Family is told patient is not recoverable. ICU attending tells the family that the burden of therapy outweighs the benefit and that he intends to withdraw treatment. The family requests a second ICU opinion. The Head of the ICU is consulted who concurs with the current attending (and two other attending who had cared for the patient). The Head of ICU advises the family that the patient will be removed from ventilator support. The family asks for a further opinion, this time from another physician of whom they are aware (an emergency physician). Arrangements are made to bring that physician into the ICU. He agrees with the decision to withdraw treatment.
Injunction November 29, 2007, the family is advised that the withdrawal of life support will take place the following day November 30, 2007, the family obtains an ex parte injunction on the basis of Affidavits from son, daughter and Rabbi, ordering continuation of medical care and life support December 10, 2007 return to Court to argue the merits of the injunction. The family has no medical experts. Affidavits filed on behalf of physicians, nurses and hospital The Court adjourns to determine issues
Order Plaintiff obtains medical experts from a neurologist and an ICU physician in the United States who suggest the patient may have locked in syndrome and that his neurological status is not as bad as has been portrayed The injunction is granted and terms are that the physicians and ICU staff are restrained from removing life support, ventilation, tube feeding, medication which is needed to support life - The Order requires physicians to provide blood transfusions, CPR, antibiotics and other supports to sustain life
Standard of Care The defendants obtain neurological assessment and a neuropsychological assessment, both of which confirm the patient to be in a minimally conscious state Definition is important because of College of Physicians and Surgeons Statement released in February 2008 outlining steps for withdrawal of treatment
EFFECT ON CAREGIVERS Three months after the Order, three of six ICU physicians at the hospital resign or otherwise refuse to continued care of the patient feeling they are inflicting severe harm without any hope or benefit Within another month, the remaining three physicians decide to tender their own resignations or refusal to participate in the care of the patient for the same reason
Letter to media One physician writes to an open letter to the media: This week, I have come to the ethical line in the sand that I had previously set out and never crossed. This is in the form of an escalation of care in my patient who is in a permanent minimally conscious state dependent on a ventilator with no hope of ever leaving Intensive Care. Until the last few days, the level of care was essentially unchanged for the last number of months since his admission. In spite of this extended period of aggressive medical care, this individual has had a slow declining level of health, and has what I would consider an insurmountable problem with wound infections and result in sepsis and renal failure. The patient now had required an escalation of medical support to sustain life which I felt would only increase suffering and provide no benefit. The family demand escalating therapy and have a Court Order enforcing same, under which I have been advised that my obligation was open to interpretation. I subsequently gave notice that I could no longer act as this patient s attending physician. I did not resign from the Intensive Care Unit. I believe that it is important to provide ongoing care to patients in the WRHA and do not want to see the Intensive Care Unit close I have been faced with an almost impossible decision do potential legal consequences and threat of jail take precedence over my duty not to inflict further harm to the patient
Letter of resignation When I originally determined that continued artificial life support of this unfortunate man was inappropriate, I made a very reasoned and informed decision to terminate mechanical ventilation with a view to maintaining comfort and dignity, but above all to avoid iatrogenic harm I can see no benefit at all in continuing to support to PG. Much of the invasive care that we provide in the ICU is intrinsically uncomfortable or even painful. Application of invasive ICU interventions, including intubation, mechanical ventilation, catheterization for inappropriate reasons i.e., not in the best interests of the patient is considered unethical at best and criminal at worst As far as I am concerned, what we have been ordered to do to PG in the absence of a rational and potential medical benefit, is tantamount to torture. I believe that all healthcare workers involved know that we are harming PG. There is clearly some variability to the extent to which we feel morally responsible for this given that it is done under the duress of a Court Order. However for myself I do not feel this Court Order absolves me of moral culpability for our actions. Given that I believe that continued support of this patient is tantamount to torture, I cannot ethically follow the mandates of the Court Order governing his care. I will not be forced to be the instrument of a man s torture.
Family Religion is to be respected Life is sacred Must do everything to preserve life Families have the right to decide about the medical treatment provided Family is under enormous stress Family distrusts medical system and care provided Feel that medical system is trying to kill their father