Originally published September 2011 / Revised October 2019
Physicians and patients alike find treatment decisions can become particularly difficult in end-of-life care. Ethical factors and clinical judgments can collide with beliefs, values, and hopes.
While it is undisputed that a physician must respect a capable patient's known wishes not to receive a particular procedure or treatment, it is less clear whether a patient (or the family or substitute decision-maker) has the right to demand a specific treatment. Indeed, disagreements can arise when physicians believe a certain treatment should be withheld or withdrawn because it will not provide any medical benefit, but patients, families, or substitute decision-makers want it.
Medical assistance in dying (MAID) is now legal in Canada, provided certain conditions are met as outlined in the Criminal Code, and in Québec, pursuant to provincial legislation. Physicians may face medical-legal and ethical challenges in responding to requests from patients for MAID.
A substitute decision-maker is a person who is legally authorized to make decisions on behalf of the patient. This authority may be granted through a legal document such as an advance directive, by legislation, or by the courts.
In all Canadian jurisdictions, treatment decisions are based on the patient's known wishes, best interests, or both. This applies to do-not-resuscitate (DNR) orders, which may be considered for patients at the end of life. At least one court in Ontario has determined that consent is not required to write a DNR order.1 However, it is advisable that doctors considering a DNR order should discuss the implications with the patient or the patient's substitute decision-maker if the patient is not mentally capable (competent). The discussion should be captured in the patient's medical records.
A physician's recommendation for a DNR order should be well-thought-out. The reasoning and criteria used to reach the recommendation should be clear and supported by a substantial body of opinion in the medical profession. Physicians considering a DNR order may wish to consult with physician colleagues to determine the level of support for the recommendation.
The Canadian Medical Association has issued a policy statement providing healthcare professionals with guiding principles for life-saving and -sustaining interventions.2 As well, the ethics committee in the institution may be able to assist the team and the patient or family in these circumstances.
It is important to note that some regulatory authorities (Colleges) and many hospitals have issued guidance on how to manage DNRs. Physicians are expected to follow their College and hospital directives.
Case 1: DNR order requires consultation
A 41-year-old woman who is mentally challenged is diagnosed with stage IV breast cancer. The patient has extensive metastases in the bone, spine, and lung. After 2 years of aggressive therapy, she is admitted to hospital for pain management.
Her family physician unilaterally decides that resuscitation would be medically futile and writes a do-not-resuscitate order in her medical record. Ten days later the patient dies. Her sister, who is the substitute decision-maker, is upset because she was not consulted about the DNR order. She complains to the medical regulatory authority (College).
Although the College agrees that resuscitation would have been medically futile, it cautions the physician to speak with the patient's substitute decision-maker about why he would place a DNR order in the medical record. The College further states that the physician's reply to the College's letter reflects his perspective that he did not need to consult with the family, ". . . and (this) does not meet the policy of the hospital nor the standard expected by the College."
Case 2: DNR order too widely interpreted
A 73-year-old woman with insulin dependent diabetes mellitus has a myocardial infarction. After discharge from the coronary care unit she re-infarcts while on the ward and goes into cardiogenic shock. Her physician discusses resuscitation with the family members and they agree there should be no CPR in the event of an arrest. The doctor writes a DNR order in the medical record and discontinues her insulin. She slips into a coma as a result of hyperglycemia. Once this is recognized, insulin is restarted and she regains consciousness. Unfortunately, she dies several days later. The family complains to the College and begins a legal action.
The College determines that the physician interpreted the meaning of DNR too widely and cautions him. "Do-not-resuscitate" does not mean withholding all treatment. In the legal action, expert support cannot be found for the physician's care and a settlement is paid to the patient's estate by the CMPA, on behalf of the physician.
Withdrawal of medical treatment
When determining the goals of continued treatments and what is likely to be achieved, physicians should try to reach a consensus with the patient, substitute decision-maker, or appropriate family members. When consensus cannot be achieved, physicians, the healthcare facility, or both, may need to initiate an application to the court (or an administrative body) or seek intervention from the local public guardian's office.
Recently when Canadian courts have ruled on cases concerning end-of-life decisions, the trend has been to give increased consideration to the views of the patient and the substitute decision-maker. For example, the family's culture and religion may affect the type of treatment and when it is provided. Treatment discussions can often include spiritual and other family advisors, as well as physician colleagues.
In 2013, the Supreme Court of Canada made a ruling in the case of Cuthbertson v. Rasouli that clarified some aspects of end-of-life care in Ontario. The Court said that under Ontario's consent and capacity legislation, physicians must obtain consent from the patient or the patient's substitute decision-maker before life support can be withdrawn. In its decision the Court also clarified that when the substitute decision-maker and the physician(s) disagree on whether life support should be discontinued, the appropriate course for physician(s) is to apply to the Consent and Capacity Board. The board is a decision-making body for such disputes and currently exists in Ontario and the Yukon.
Medical assistance in dying
On June 17, 2016, amendments to the Criminal Code came into force rendering medical assistance in dying (MAID) legal everywhere in Canada provided certain conditions are met.3 The Criminal Code now provides an exception to the criminal prohibition against assistance in dying for individuals who are eligible for health services funded by a government in Canada, who are at least 18 years of age and capable of making decisions about their health, have a grievous and irremediable medical condition, have made a voluntary request for MAID, and who provide informed consent. Individuals have a “grievous and irremediable medical condition” if they have a serious and incurable illness, disease or disability, are in an advanced state of irreversible decline in capability, and if their condition causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable. In addition, the medical condition must be such that the patient’s natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time they have remaining. In those circumstances, only a medical practitioner or nurse practitioner can provide assistance in dying.
The Criminal Code also provides for a number of safeguards, including the requirement that the request be made in writing, signed and dated by the patient before two independent witnesses, that another independent medical or nurse practitioner has provided a written opinion confirming that the patient meets all of the eligibility criteria, that the patient has been given the opportunity to withdraw the request and that the patient benefited from a reflection period of 10 clear days between the day the request was made and the day assistance in dying is provided. Further safeguards have also been adopted in the form of reporting obligations. Provincial legislation, and regulatory authorities (Colleges) and hospital policies may supplement the safeguards provided in the Criminal Code.
In Québec, legislation addressing end-of-life care, including MAID in specific circumstances, came into effect on December 10, 2015.4 Helpful guidelines on end-of life care were also issued by the College in Québec.5 The Québec end-of-life legislation provides for its own eligibility criteria and safeguards that are similar to those set out in the Criminal Code. One notable difference is that under the Québec legislation, only physicians can administer aid in dying; it is not possible for a physician to prescribe the medication to be self-administered by the patient and nurse practitioners could not administer aid in dying. The court in Québec recently found the requirement in the Criminal Code that death be reasonably foreseeable and the end-of-life requirement in the Québec legislation to be unconstitutional.6 The court gave the federal and Québec governments until March 2020 to amend their legislation. Until that time, physicians should continue to apply the requirements in the legislation as currently worded.
In most provinces and territories, patients can provide direction for their future care if they become incapacitated or are unable to communicate their wishes. Known as advance directives (including living wills), these may give explicit instructions on consent or refusal of treatment in specified circumstances. They may also be used to appoint or designate an individual to make substitute decisions about consent or refusal of treatment in the event the patient becomes incapacitated.
Advance directives are to be interpreted by the patient's substitute decision-maker. Substitute decision-makers are generally obligated to follow these directions, unless they know of other wishes expressed by the patient.
In some provinces and territories, advance directives may be contained in powers of attorney for personal care. Physicians should be familiar with any applicable legislation in their jurisdiction.
Physicians should note that MAID cannot be requested by way of advance directives.
When providing end-of-life care, communicating early and effectively is the best approach. In addition to communicating with the family and substitute decision-maker, it is equally important for physicians to communicate with the rest of the care team. Discussions with the care team, substitute decision-maker, and family members should be documented in the medical record.
Assessment of the goals of care should be compassionate and patient-centred, and performed routinely and repeatedly. Physicians should carefully choose the words they use to convey the seriousness of the illness and the options for care. A number of publications provide suggestions for wording that may help to avoid a feeling of abandonment or a tug-of-war with patients and their families.7
Advance care planning, which is an organized approach to communication, allows individuals and families to understand, reflect upon, and discuss the goals, values, and beliefs for future healthcare decisions, particularly in the event of the patient being unable to communicate in the future.8
When end-of-life issues arise, physicians should remember:
- The best interests of the patient are paramount.
- The capable patient has the right to consent to or refuse medical treatment, including life-sustaining treatment.
- Thoughtful and timely advance care planning, discussion, and documentation of a patient's wishes and healthcare goals can help avoid misunderstandings.
- Physicians should be familiar with any relevant laws and regulatory authority (College) policies concerning end-of-life care, and the withholding or withdrawing of life-sustaining treatment, and medical assistance in dying.
- When considering placing a do-not-resuscitate order in the medical record, or acting upon a do-not-resuscitate order, consent from the patient or substitute decision-maker is advisable. It may also be helpful and appropriate to consult with physician colleagues and the patient's family to determine support for the order.
- Decisions about withholding or withdrawing life-sustaining treatment that is considered futile or not medically indicated should be discussed with the patient, or the substitute decision-maker on behalf of an incapable patient. When consensus is not achieved despite discussions with the substitute decision-maker, the family, and others such as ethics consultants, patient advocates, and spiritual advisors, it may be necessary to make an application to the court (or an administrative body) or seek intervention from the local public guardian's office.
- Physicians considering a request for medical assistance in dying should be familiar with the eligibility criteria set out in the Criminal Code, with applicable provincial legislation, and with applicable regulatory authority (College) guidelines.
- Physicians should be familiar with the role of advance directives (including living wills).
- End-of-life decisions should be carefully documented in the patient's medical record.
Physicians are encouraged to contact the Association for advice on issues pertaining to end-of life care. The CMPA should be contacted when there is a disagreement on recommended treatment decisions for end-of-life care and when a physician receives a request for medical assistance in dying.
- Wawrzyniak v Livingstone, 2019 ONSC 4900 (CanLII)
- Canadian Medical Association, "CMA Statement on Life-Saving and -Sustaining Interventions." Retrieved on February 19 2014 from: http://policybase.cma.ca/dbtw-wpd/Policypdf/PD14-01.pdf
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016).
- An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001.
- Collège des médecins du Québec. Practice Guide: Medical aid in dying [Internet]. Montréal (QC): le Collège; September 2015 [cited 2015 Dec 24]. Available from: http://www.cmq.org/publications-pdf/p-1-2015-09-10-en-aide-medicale-a-mourir.pdf?t=1450967914917. Please note that this guide is only available in the secured website of the CMQ
- Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
- See: Pantilat, S., "Communicating with Seriously Ill Patients: Better Words to Say," Journal of the American Medical Association (2009) Vol. 301, no.12 p1279-1281; Also see: Workman, S., "A communication model for encouraging optimal care at the end of life for hospitalized patients, Quarterly Journal of Medicine (2007) Vol. 100 p791-797
- Cook, D., Rocker, G., Hayland, D., ‘Enhancing the quality of end-of-life care in Canada," Canadian Medical Journal 2013 Vol. 185, no.16