"Do Not Resuscitate": Whose Choice?
Court Gives Course in Medical Ethics to the Public Trustee
Lex View No. 23 (Centre
for Cultural Renewal)
Reproduced with permission
Sawatzky v. Riverview Health Centre Inc.
Manitoba Court of Queen's Bench File No. CI 98-01-10245
Date of Decision: November 13, 1998
Key Terms: medical ethics - "do not resuscitate" order -
patient autonomy - responsibility of the public trustee - conscience of the
Summary of Facts:
Mr. Sawatzky suffers from Parkinson's disease and has been a patient at
the defendant's health care facility since May 28, 1998. On admission to the
hospital, Mr. Sawatzky was assessed by a doctor who decided that if Mr.
Sawatzky went into arrest, he should not be resuscitated. Mr. Sawatzky's
wife opposed the "do not resuscitate order", and the doctor acquiesced. Over
the summer, the doctor determined that Mr. Sawatzky required a procedure for
a cuffed tracheostomy tube. Mrs. Sawatzky opposed that procedure, and the
hospital successfully applied to have the Public Trustee appointed as Mr.
Sawatzky's guardian. The Public Trustee approved the procedure on Mr.
Sawatzky's behalf, and Mrs. Sawatzky eventually consented as well. The
Public Trustee's supervision order over Mr. Sawatzky remained in effect at
the time of trial.
After Mr. Sawatzky developed pneumonia (not his first bout with it), the
doctor reconsidered the question of resuscitation, and on October 29 or 30,
1998, without notice to Mrs. Sawatzky and without receiving a second
opinion, made a "do not resuscitate order". When another doctor advised Mrs.
Sawatzky of what had happened, she stated her objection, and then commenced
this legal proceeding. Mr. and Mrs. Sawatzky brought this application for an
interim order lifting the "do not resuscitate order" pending trial.
Can a doctor or health care facility legally issue a "do not resuscitate"
order if the patient or the patient's guardian refuses to consent to that
order? What are the obligations of the Public Trustee's office with respect
to consenting or opposing "do not resuscitate orders?
The "do not resuscitate" order made on October 29 or 30, 1998, was
ordered withdrawn, and the resuscitation order which was previously in
effect was ordered to remain in effect until further order of the Court.
The Court's Reasons:
Because of the prospect of Mr. Sawatzky going into arrest before the
matter could be heard at trial, the plaintiffs applied for an interim order.
In an interim application, a court does not come to a final conclusion about
the ultimate issues involved, but is required instead to make a preliminary
assessment of the merits, and consider a number of other practical matters.
Among them, a judge must weigh the hardship caused to each side if the order
is granted or refused, and the desirability of maintaining the status quo.
In his preliminary assessment of the merits of the case, the motions
judge, Justice Beard, noted that in the case law to date, "the courts have
stated that a decision not to provide treatment is exclusively within the
purview of the doctor and is not a decision to be made by the courts".
However, the judge also noted that there were very few cases on point, and
none of them considered the impact of the Charter of Rights and Freedoms.
Owing to novel features of this case which have not been litigated before,
the judge was unable to comment much on the strengths and weaknesses of the
case, but was nevertheless satisfied that it raises meritorious issues which
deserve to be tried.
In weighing the potential hardship to both sides, or the "balance of
convenience", Justice Beard noted that courts have held that the law should
not require a physician to carry out treatment which he or she does not
believe to be in the patient's best interest. Otherwise, the court would be
ordering the physician to act against his conscience, and against his
fundamental duty to his patient. The courts have said that if a patient
disagrees with the physician's decision not to treat, the course of action
open to the patient is to sue the physician in negligence. Obviously this
would not be a satisfactory remedy in this case, and the balance of
convenience was settled in favour of Mr. Sawatzky.
In deliberating on the desirability of maintaining the status quo,
Justice Beard had to consider the effect of the resuscitation order on both
the treating physician and the hospital. Since the defence was in part
framed in terms of respecting the integrity of the conscience of the
treating physician, the Court closely considered the mechanics of carrying
out the resuscitation order. The treatment itself is not controversial,
unlike a procedure like abortion. It merely requires the defendant to
perform CPR and dial 911. CPR would be performed by the first qualified
person who found Mr. Sawatzky to be in arrest. It is unlikely that the
physician who issued the "do not resuscitate" order would be that person. In
any event, the judge reasoned that even if ordering resuscitation was
perceived as an "ethical dilemma" to that doctor, it was one which the
doctor had been able to live with for the preceding five months.
The judge was also concerned about the parties' disagreement about Mr.
Sawatzky's abilities and prognosis. While Mrs. Sawatzky presented evidence
about her husband's ability to communicate with her, the treating physician
contested this and also claimed that Mrs. Sawatzky's expectations about her
husbands prospects of recovery were unrealistic. This difference in opinion
contrasts with similar cases, in which the patients were mainly in
persistent vegetative state, and there was no dispute about their prognosis.
Judge Beard determined that this uncertainty weighed in favour of granting
All of the factors which the Court was obliged to consider, from the
merits of the case to the balance of convenience and the effect of
maintaining the status quo, all pointed in favour of granting the injunctive
order compelling the defendant to resuscitate Mr. Sawatzky in case of
Lex View Commentary:
This case pulls the Court into some deep waters, both in terms of the
gravity of the issues and their philosophical complexity. An initial
reaction is to wonder how it is possible that patients in Canadian health
care centres can, against their wishes, be denied fairly basic, and
absolutely vital, medical intervention. Even if the treating physician's
evidence is taken over that of the patient's wife, and Mr. Sawatzky was
unable to express an opinion on the matter himself, how is it that a
physician feels at liberty to make an order as final as "do not resuscitate"
without consulting with, or even informing, the patient's family? How is it
that the Public Trustee's office, which was ordered to act on Mr. Sawatzky's
behalf, was not informed of the doctor's decision, and then, scandalously,
refused to take any steps on Mr. Sawatzky's behalf? In recent days, medical
ethicists have raised the charge that such practices are occurring
throughout the country, with doctors overstepping authority provided by a
1997 decision of the Manitoba Court of Appeal, which held that physicians
did not need to seek family consent or a court order where the patient was
in a persistent vegetative state. Having been described by the treating
physician as "alert", Mr. Sawatzky obviously did not come within the scope
of that case.
The defendant health care centre relied heavily on the ethical and legal
principles loosely indicated by the term "conscience". It is a principle of
English law, of persuasive precedence in Canada, that a physician should not
be required to provide treatment which she or he feels is not in the best
interests of the patient. This would seem uncontroversial; the state cannot
require physicians, who take an oath to act in the best interests of their
patients' health and well-being, to instead harm them. Of course, doctors
nevertheless are answerable to the state at many levels, they are subject to
the legal system in actions for negligence, and they are answerable to
governing bodies which are in turn authorized by the state. Conscience is
not determinative in any event; it does not trump the law. If a doctor's
clear conviction was that it would be unethical to treat some member of a
racial minority (or majority) because he perceived that their life was of no
benefit, the law would not defer to his conviction. So the argument without
further nuance, fails.
In any event, to what extent is a physician's conscience jeopardized by
being required to provide treatment which she feels to be of no benefit? And
what is the legal significance of such a strain? As the justice pointed out,
requiring a doctor to provide CPR to someone whom the doctor believes ought
to die, is not at all analogous to, say, requiring a doctor to perform an
abortion. While it is always necessary to pay attention to the context of
any technical procedure to ascertain its moral significance, performing CPR
is not a prima facie morally contentious procedure, such as abortion. The
doctor is not being called on to perform a procedure which could be
fundamentally distressing to her. The most that is at stake is that a doctor
will be concerned about matters of efficiency, (i.e. that resources are
being wasted on someone who it is not believed can benefit from them), or
that the patient is prepared to accept death, and yet is being kept alive
against his will by artificial means. As this case specifically involves the
situation where either the patient himself, or those who are legally
required to act on his behalf, have already specifically refused to consent
to revoking a resuscitation order, we can dispense with the situation where
the patient is willing to accept death where the law already recognizes a
right to be allowed to die by letting nature take its course. Where the
efficiency concerns of a doctor collide with the desire of a patient to
live, we submit that it is the doctor's conscience, if need be (and the
Court goes a long way to showing that this argument is any event a red
herring), that must give way.
Another aspect of the question flowing from concerns of conscience, is
the question of what it means to "benefit" a patient, and the relative roles
of the medical practice, philosophy, and law in answering this question. The
defendant submitted that to continue Mr. Sawatzky's life was not to benefit
him. The authorities drawn from England said that judicial deference to the
medical profession means that it is not a question to be answered in the
Undoubtedly, judges would be foolish to interfere in the ordinary
treatment of medical patients. As they are very aware, they are not
medically trained, and they are not competent to make decisions about how to
apply medical techniques. But courts do perform a supervisory function over
medical practice, even if primarily after the fact, and not all decisions
which a doctor makes will be of a technical, medical variety. Where
decisions involve issues at the edge of life, and the fundamental question
becomes, "is continued life a benefit to this person?" then the resources
which medical practice has to provide an answer are quickly exhausted. It is
not a medical question at all. Answers must be sought within traditions of
philosophical and religious enquiry. And those traditions which have fueled
our concept of justice, have firmly held that the sanctity of all human life
is by virtue of the nature of human life, and not according to individual
ability, and therefore applies to all human beings equally. Mr. Sawatzky's
life, no matter how gravely impaired it is or becomes, is his right and an
aspect of the common good all persons share. That right is recognized,
although not created, by Canadian law. This was the holding of the majority
of the court in the Supreme Court of Canada's reasons in the Rodriguez case.
Doctors who arrogate to themselves the question of which lives are worthy
of living, and therefore worthy of treatment, are abusing their
jurisdiction. Two individuals under a duty to act in Mr. Sawatzky's
interests, his doctor and the Public Trustee, failed to do so. The Court did
well to take up its role as last line of defence for the aged and relatively
powerless. It will fall to the trial judge to consolidate the sense of
Justice Beard's reasoning in a final judgement.
This decision shows the need for judicial vigilance in such cases. Where,
as here, medical decisions appear to have taken pages from the widely
discredited "end of life" practices of the Dutch medical community, judicial
response is an essential corrective. Here an appropriate judicial decision
is all that stood between faulty ethics, an ineffectual public trustee and a
sick and powerless man near the end of his life.
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