Transcript Title of Presentation - Providence Health Care

Law & Ethics
Camille Ciarniello
Director, Risk Management and Patient Safety
Providence Health Care
For the Health Care Ethics Seminar
March 30, 2009
Holy Family Hospital | Mount Saint Joseph Hospital | St. Paul’s Hospital | St. Vincent’s Hospitals: Brock Fahrni, Langara, Heather | Youville Residence | Marion Hospice
Objectives
At the end of this session, participants will be able to:
1. describe how the law in British Columbia has
evolved;
2. describe the role of ethics in the formation of BC
laws; and
3. have a practical opportunity to analyse case law
using a legal and ethical lens.
Origin of our laws
• Common law: a law established by following earlier
judicial decisions
• Laws or legal principles that have been established
by courts over the years. May be codified into a
statute or overruled by a statute passed by the
government.
• The traditional legal code of England that developed in the
Middle Ages from custom and precedent, and has been
expanded by subsequent legal decisions. Unlike statutory and
constitutional law, it is not necessarily gathered in written form in
a single place.
• Common law is often contrasted with civil law systems which
require all laws to be written in a code or written collection.
Common law has been referred to as the "common sense of the
community, crystallized and formulated by our ancestors".
Beatty v. Cullingworth (1896) England
• Plaintiff scheduled for abdominal surgery
• Before going in, she told the surgeon that if both
ovaries were diseased he was to remove neither, as
she was about to be married
• The surgeon replied, "You must leave that to me" or
"You may be sure I shall not remove anything I can
help"
• The Plaintiff denied hearing the remark
• The surgeon removed both ovaries
"The object of the common law is to solve
difficulties and adjust relations in social
and commercial life. It must meet, in so far
as it can, sets of fact abnormal as well as
usual. It must grow with the development of
the nation. It must face and deal with
changing or novel circumstances. Unless it
can do that, it fails in its function and
declines in its dignity. An expanding
society demands an expanding common
law.“
Justice McCardie
Prager v. Blatspiel 1924 England
Marshall v. Curry [1933] 3 DLR 260 NSJ
• 52 yo “seafarer” with 30 year history of spinal trauma
• Numerous admissions for urosepsis
• Left inguinal hernia repaired during one 6 month
hospital stay
» Left testicle removed at the same time
without consent as it “might have caused
trouble”
Mulloy v. Hop Sang [1935] 1 WWR 714 (Alt CA)
• Defendant injured his hand in an MVA
• Wrapped it in an old cloth and presented to hospital
• Told the surgeon to “fix it up” but not amputate as he
wanted to see a physician he knew in his home town
• Physician said he would be guided by conditions he
found
• Hand amputated
• Defendant didn’t pay – physician sued!
Parmley v Parmley & Yule [1945] 4 DLR 81 (SCC)
• Plaintiff wished to have two teeth extracted at the
same time as her tonsillectomy
• Physician suggested his brother, a dentist, perform
the extraction and she agreed
• No pre-operative consult took place
• The dentist discussed the procedure with his brother
over tea at their mother’s –
• Dentist removed all of the upper teeth and one molar
Murray v. McMurchy [1949] 2 DLR 442 (BCSC)
• C-section delivery after an extended labour and failed
forceps attempt
• Multiple fibroids discovered
• Physician decided to do a tubal ligation in order to
prevent the Plaintiff from undergoing the hazards of a
second pregnancy
Male v. Hopmans et al [1965] OJ 1138 (HCJ)
• Patient in hospital with knee infection not responding
to treatment
• Risk that the knee joint would be destroyed, or the
infection might spread
• Dr. Hopmans determined that IM and intra-articular
injection of neomycin presented the best option for
recovery
• Known 10-20% risk of hearing impairment with
treatment
Male v. Hopmans con’t
• A week after the commencement of the treatment,
Mr. Male asked what was meant by the warning on
the label of the neomycin
• Dr. Hopmans told him not to worry about it:
“It is in my view not reasonable to infer that the
doctor’s failure to give to his patient an opportunity
two days earlier to elect to discontinue the dosage
then being administered constituted an effective
cause of the plaintiff’s ultimate misfortune”
Reibl v. Hughes [1980] 2 SCR 880 SCC
• 44 year old patient suffering from headaches brought
on by hypertension
• Incidental finding during physical workup of
significant narrowing of the left carotid artery
(unrelated to hypertension)
• Surgeon believed risk of stroke related to narrowing
was 10% in each untreated year
Reibl v. Hughes
• Risk of stroke related to surgery not disclosed to
patient
• Patient suffered a massive stroke following surgery
leaving him impotent and hemiplegic
• Sued in both battery and negligence
• Reibl was 1½ years away from qualifying for a
lifetime pension from Ford
Mason v. Forgie (1986) NBCA
• Chiropractice case
• Mr. Mason suffered a stroke after a neck
manipulation
• Court found that there was no negligence in the
manipulation of Mr. Mason’s neck
• However, Dr. Forgie found liable for not disclosing a
known, albeit remote, risk
Malette v. Shulman (1990) 72 O.R. (2d) 417 (CA)
• Woman severely injured in a car accident and
brought unconscious to ER
• A nurse found a card in the patient's wallet indicating
she was a Jehovah’s Witness and requesting that
she be given no blood transfusions under any
circumstances
• Dr. Shulman of the opinion that a transfusion was
necessary to save her life and personally
administered transfusions to her
Malette v. Shulman
• The right of self-determination which underlies the
doctrine of informed consent also encompasses the
right to refuse medical treatment
• The instructions on the card imposed a valid
restriction on the emergency treatment
• No liability to be held where doctor or other health
provider relies on the card – the patient must accept
the consequences of their decision to carry the card
Health Care (Consent) and Care Facility
(Admission) Act, RSBC 1996, c. 181
Consent rights
4 Every adult who is capable of giving or refusing
consent to health care has
(a) the right to give consent or to refuse consent on any
grounds, including moral or religious grounds, even if the
refusal will result in death,
(b) the right to select a particular form of available health
care on any grounds, including moral or religious
grounds,
(c) the right to revoke consent,
(d) the right to expect that a decision to give, refuse or
revoke consent will be respected, and
(e) the right to be involved to the greatest degree possible
in all case planning and decision making.
Van Mol v. Ashmore 1999 BCCA 6
• 16 year old girl underwent the third in a serious of
surgical procedures to correct a congenital
coarctation of her aorta
• Significant difficulties were encountered during the
operation
• Although the coarctation was repaired, the girl was
rendered a paraplegic and suffered a recurrent
laryngeal nerve injury as a result
Minors
• At common law, a mature minor is considered
capable of giving consent to a procedure in his/her
best interests
• Absent specific legislation limiting that right based on
age, capacity is determined the same as if they were
adult:
– Are they able to understand the information?
– Are they able to exercise judgment?
– Are they able to understand the consequences in relation to
themselves?
Van Mol v. Ashmore
• 1. As a matter of law was the informed consent of
Melanie required in this case? If so did the Reibl
standard apply or did an Infants Act standard apply or
did both standards apply or did some other standard
apply?
• 2.
As a matter of law was the informed consent of
Mr. and Mrs. Van Mol required in this case? If so did
the Reibl standard apply or did some other standard
apply or did both apply?
Van Mol v. Ashmore
• In Canada, the common law recognizes the doctrine
of a mature minor, namely, one who is capable of
understanding the nature and consequences of the
proposed treatment. Accordingly, a minor, if mature,
does have the legal capacity to consent to his or her
own medical treatment…what s. 16 does is give
protection to doctors who might otherwise be at risk
in relation to the commission of an act of
battery…because they are uncertain of a particular
young person's capacity to give consent.
Hughes (Next friend of) v. Alberta (Director
of Child Welfare [2002] A.J. No. 518
• 16 ½ year old girl diagnosed February 14, 2002 with
AML
• Baptised member of the Fellowship of Jehovah’s
Witnesses
• Child and family uniform in rejection of transfusion
• Application to Director for child to be apprehended
• After several hours of evidence Bethany’s father
consented to the transfusion
• Bethany and her mom continued to refuse
Hughes (Next friend of) v. Alberta (Director
of Child Welfare
• Bethany determined to be a mature minor
• However, legislation replaces common law
• Legislation says to “take into consideration” the
mature minor’s wishes
• Overwhelming evidence that the treatment regime
recommended was the only curative treatment
available
• Court determined it was in Bethany’s best interests to
have the treatment
Rodriguez v. BC (AG) [1993] BCJ No 461 (CA)
• 42 year old woman with ALS
• First symptoms in April 1991
• By November 1992 she was only able to walk 20’,
requiring assistance with all ADLs, difficulty
swallowing and her voice and cough are weak
• Experiencing spasms daily in her legs and hands with
associated pain in her shoulders and back
• Prognosis was a 6-18 month life expectancy with
complete inability to speak and swallow within weeks
Rodriguez v. BC (AG)
• Initial Petition heard December 1992
• Heard at BCCA February 1993 and SCC May 1993
• Sought an order that s. 241 of the Criminal Code be
declared invalid, pursuant to section 24(1) of the
Canadian Charter of Rights and Freedoms, on the
grounds that it violates her rights under ss 78, 12 and
15(1) of the Charter
Criminal Code
s 241. Every one who
a. counsels a person to commit suicide, or
b. aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an
indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free
and democratic society.
7. Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
15. (1) Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
Rodriguez v. BC (AG)
Dissent Lamer CJ
• s. 241(b) infringes the right to equality in s. 15(1) of
the Charter
• This infringement cannot be justified under s. 1 of the
Charter
• The remedy should be the availability of a
constitutional exemption sought by way of application
to a superior court
Rodriguez v. BC (AG)
Majority – Sopinka J
• s. 241(b) deprives a person of autonomy over person
in a manner which impinges on the security of the
person
• This deprivation, however, is not contrary to any
principles of fundamental justice and therefore does
not infringe s. 7 of the Charter
• s. 241(b) infringes s. 15 of the Charter, but is clearly
justified under s. 1
Golubchuk v. Salvation Army Grace General
Hospital 2008 MBQB 49
• Patient suffered a severe brain injury from a fall in
2003
• Underwent a partial temporal lobectomy in 2005
• Subsequently residing in a care facility
• Transferred to acute care on October 26, 2007 with
pneumonia and pulmonary hypertension
• Condition deteriorated and transferred to ICU on
November 7, 2007
Golubchuk v. Salvation Army Grace General
Hospital
• ICU physicians of the view that the ventilator and life
supports should be withdrawn
• Consulted with ethicist who provided a plan of action
• Family advised of plan at family meeting on
November 20, 2007
• Second family meeting on November 29 following an
assessment by the ICU Director
• Interim injunction granted on an emergency basis
without notice on November 30, 2007
Decision
• The Court determined that the question to be
answered was not whether the doctors could
discontinue the ventilator, or whether Jewish law
trumps the decision of the physicians
• The narrow question was whether the Court should
continue the interim injunction until trial
• The role of the court was to resolve factual disputes
and advise of the legality or illegality of disputed
decisions before the patient is dead
Decision
• There were questions of both law and fact that
required an answer
• Damages would be completely inadequate as a
remedy in the event the physicians made the wrong
decision
• The balance of convenience favoured the patient
• The physicians placed the patient on the ventilator
initially, so it made sense to maintain the status quo
• Special considerations
• Family’s lawyer “We won the injunction. That is a
precedent. There are no others in this kind of case.
So people who are faced with what Samuel
Golubchuk was faced with, they know there is
something to rely on in the future”.
• Bioethicist Arthur Schafer, PhD “At the human
level one has to feel relief for Mr. Golubchuk,
because he was not in a vegetative state but in a
near-vegetative state – he was feeling pain and
discomfort. But on the other hand we won’t have a
court ruling that will clarify the situation”.
“There are some
patients we
cannot help, there
are none we
cannot harm”
Arthur L. Bloomfield, Professor of Medicine, Stanford
University, 1888-1962
Law and Ethics
Case Studies
Holy Family Hospital | Mount Saint Joseph Hospital | St. Paul’s Hospital | St. Vincent’s Hospitals: Brock Fahrni, Langara, Heather | Youville Residence | Marion Hospice
Manitoba (Director of Child and Family Services) v. A.C.
2007 MBCA 9
• A.C. 16 year old girl, baptized member of the
Fellowship of Jehovah’s Witnesses
• Firmly believes that she must abstain from blood
• Completed an Advanced Medical Directive pursuant
to Manitoba legislation in January 2006 containing
written instructions that she was not to be given blood
under any circumstances
• History of Crohn’s disease – chronic inflammation of
the GI tract
• Admitted to hospital on April 12, 2006 with a GI bleed
• The bleed led to a drop in Hemoglobin, but her
condition stabilized
• Second bleed early Sunday, April 16
• AC’s physician thought there was an imminent,
serious risk to AC’s life or significant harm
• Both AC and her parents declined the blood
transfusion
• Hospital contacted the Director of Child and Family
Services, and AC was apprehended as a child being
in need of protection
• Counsel for the Director applied for the matter to be
heard with short notice (24 hours) for an Order
authorizing qualified medical personnel to give blood
transfusions as deemed necessary without consent
Evidence of physician
... [T]he longer she goes without, the more the risk
is of her having serious oxygen deprivation to the
point where [if] for argument sake she's not getting
enough oxygen to her kidneys, they will shut down
and cause essential poisoning of her system. If she
does not get enough oxygen to her brain she can
conceivably have seizures and other manifestations
of the brain that will contribute to a faster demise or
death.
AC’s attending physician to the Court
Child and Family Services Act CCSM c. C80
Declaration of Principles
The Legislative
Assembly
of Manitoba hereby
declares that the fundamental principles guiding the
provision of services to children and families are:
1. The safety, security and well-being of children and
their best interests are fundamental responsibilities of
society.
Child and Family Services Act CCSM c. C80
25(1) Where a child has been apprehended, an agency
c) may authorize the provision of medical or dental
treatment for the child if
(i) The treatment is recommended by a duly qualified
medical practitioner or dentist,
(ii) The consent of a parent or guardian of the child
would otherwise be required, and
(iii) No parent or guardian of the child is available to
consent to the treatment
Child and Family Services Act CCSM c. C80
Child's consent required if 16 or over
25(2) Notwithstanding clause (1)(b) or (c), if the
child is 16 years of age or older, an agency shall not
authorize a medical examination under clause (1)(b)
or medical or dental treatment under clause (1)(c)
without the consent of the child.
The Health Care Directives Act CCSM c. H27
Age of capacity
4(2) In the absence of evidence to the contrary, it shall
be presumed for the purpose of this Act
(a) that a person who is 16 years of age or more has
the capacity to make health care decisions; and
(b) that a person who is under 16 years of age does
not have the capacity to make health care
decisions.
Argument of the family
• At common law a mature minor has the capacity to
decide their own medical care
• The common law has not been replaced by the Child
and Family Services Act
• The “best interests” test should only apply to minors
under 16 without capacity whose parents have
refused to consent to needed medical treatment
Argument of the Director
• The legislative regime replaces the common law
authority in a serious medical situation where the
opinion of the doctor is in conflict with that of the child
and parents
Decision
• The problem is difficult because it sets in opposition
fundamental values which we hold dear. The first is
the value of autonomy - the ability of each person to
control his or her body and consequently, to decide
what medical treatment he or she will receive. The
second value is effective medical treatment - that
people who are ill should receive treatment and that
illness itself should not deprive an individual of the
ability to live a full and complete life.
Decision
Within a child protection context, the legislature has
struck the balance between personal autonomy and
sanctity of life differently than with respect to adults.
Given the concerns over protecting the life of children
in relation to essential medical treatment and the
difficulty in determining capacity in these emergency
situations, the choice of a best interests test for
minors under 16 that takes the child’s wishes into
account is not unfair or arbitrary. It represents a fair
balance between the interests of the individual and
those of the state
Affidavit of A.C.
“Having someone else’s
blood pumping through
my veins, stressing my
body, caused me to
reflect on how my rights
over my body had been
taken away by a judge
who did not care
enough to talk with me”
“That day, my tears flowed non-stop. Nothing can
properly describe how I was feeling and still feel
today. I could liken it to being raped and violated but
even those words do not express my feelings strong
enough.”
Rotaru v. VGH ICU 2008 BCSC 318
• Admitted to VGH with right leg ischemia due to
popliteal artery occlusion
• Post-op developed perforated sigmoid colon d/t
ischemic bowel
• ICU December 5 to 16, 2007 for sepsis
• Subsequent GI bleeding, ischemic colitis, TPN
dependent, renal failure
• February 3, 2008 Code blue, brought back to ICU
• Vascular and Nephrology consulting to ICU
Rotaru v. VGH ICU
Meetings with family week of February 4, 2008:
• no operative solution for Mrs. Priboi’s global vascular
disease
•
Therapy to optimize renal function unsuccessful and
detrimental to cardiac/respiratory function
• TPN, digoxin, albumin and lasix causing further
complications
• Dialysis not an option d/t underlying disease
processes
Rotaru v. VGH ICU
Petition for an Order that:
a) The medical staff of the VGH ICU continue to provide life
support to Alecsandrina Priboi – their patient, in order to
sustain life;
b) The medical staff of the VGH ICU and any other medical
section Alecsandrina Prioboi may be transferred to, provide
this patient, effective immediately, with medication the
patient has been on before February 3, 2008 ICU transfer,
medication vital to her life and well being and such staff
change their death inducing actions to maintaining and
supporting this patient’s life.
Argument of the Petitioner
•
She was told by the admitting ICU physician that her
mother would continue to be given the medical care
she had been receiving all along
•
The next ICU physician discontinued this medical
care without her or the family’s consent
•
The ICU physician advised that the only thing that
would make him change his mind was a court order
Argument of the Defendant Doctors
•
The court does not have the power to make the
Order as requested
•
Even if such an Order could be made, the return of
the previous medication and treatment would be
counter-productive and/or of no effect and other than
in accordance with their ethical obligations
•
Dialysis would not change the patient’s outcome, as
her renal failure is a consequence of systemic failure
Decision
…this decision does not involve the consideration of
whether medical advisors can be prohibited from
withdrawing forms of treatment of life-support
systems.
…the Petition raises the issue of whether, after certain
treatment has ceased, the Court is in a position to
order that the treatment resume where the medical
advisors state that it is in their bona fide clinical
judgment that the former treatment is contraindicated.