APPENDIX "C"
Carter Part VII: Postscript
While the judge's explanation of the law of informed consent is
satisfactory, as is her explanation of the law concerning withdrawal and
refusal of treatment, her discussion of the
ethics of end-of-life
decision-making was seriously deficient.
C1.1 Much that is necessary to understand the ethical issues and
controversies associated with end-of-life practices is absent from Part VII.
While the judge's explanation of the law of informed consent is
satisfactory, as is her explanation of the law concerning withdrawal and
refusal of treatment,379 her discussion of the
ethics of end-of-life
decision-making was seriously deficient.
C1.2 Thus, when she stated in Part VII that there is no
disagreement about the facts related to "existing clinical end-of-life practices and the
understood legal and ethical justification for them,"380 this assertion
cannot be accepted at face value, particularly in view of the studied
vagueness that attends her discussion of palliative sedation. One reason for
this may be that the evidence appears to have been focused on palliative
care - the care of those who are dying - while the most spectacular
controversies about euthanasia have concerned patients who are not
dying.(C2.4.5)
C1.3 Moreover, her treatment of ethical justification (as opposed to
legal
justification) is slender indeed. Part VII contained virtually no information
about factors that are considered in decision-making about withholding or
withdrawing interventions.
C1.4 As a result, Part VII is likely to contribute to confusion and make
it more difficult for conscientious objectors among health care workers to
be heard with respect. Accordingly, this Appendix reviews Part VII with a
view to providing information that was obscured by the ruling or left out of
it altogether, so that readers will be better placed to understand the basis
for objections when they arise.
. . . it is misleading to imply that the fact that health care
workers comply with the law is evidence of an ethical consensus in
favour of suicide, so that health care workers might reasonably be
expected to help someone commit suicide.
C2.1 In Canada, a competent person can legally refuse any kind of
intervention or assistance, or require that it be discontinued, even if that
will result in death. When the wishes of a competent person are known, they
will be respected if he becomes incapacitated and unable to communicate.
C2.2 Incompetent persons are those who, by reason of age or disability, are
unable to provide or withdraw informed consent to intervention or
assistance. Such decisions must be made by a proxy or substitute
decision-maker, typically a family member or relative defined by common law
or statute.
C2.3 Health care workers commit an assault and are able to civil action and
perhaps criminal charges if they provide intervention or assistance against
the wishes of a competent patient, or, in the case of an incompetent person,
against the direction of a substitute decision maker.
C2.4 The preceding explanation of the law in Canada is found in Part VII in
the Carter ruling,381 but there
was no discussion of the associated ethical or
moral issues, even though, in Part VII, the judge claimed to be addressing
ethical rather than legal questions.
C2.5 What was missing from the judge's account
was an acknowledgement that a
decision to refuse intervention or assistance or require that it be
discontinued has a moral or ethical dimension, and that different religious,
moral and ethical traditions may disapprove of the decision, even though the
law does not. This can cause conflicts within families, between families and health care
workers, and among health care workers who have different moral, ethical or
religious views.
C2.6 Consider, for example, a decision by a competent patient to commit
suicide by refusing food and fluids. It was acknowledged at trial that this
cannot be prevented, but nothing in the representations of the parties or in
the comments of the judge suggested that the decision might be morally or
ethically controversial. In fact, the defendants argue that the law against
assisted suicide is not discriminatory precisely because everyone can
commit suicide in this manner (C3.9).
C2.7 No one disputes that this is the law, and that health care workers are
bound by the law. But it is misleading to imply that the fact that health
care workers comply with the law is evidence of an ethical consensus in
favour of suicide, so that health care workers might reasonably be expected
to help someone commit suicide.
C3.1 Nutrition and hydration are different needs and in a clinical
situation should be considered separately, but for present purposes they
will be discussed together because the ethical considerations relevant to
withdrawing, withholding or refusing them are the same.
C3.2 Assisted nutrition and hydration: the methods
C3.2.1 Assisted nutrition and hydration (also known as "artificial nutrition
and hydration" or "clinically assisted nutrition and hydration") include
techniques for the delivery of nourishment and fluids to sustain life when a
patient is unable to eat or drink, or when there
is a significant risk of aspiration. They involve medical interventions like
nasogastric tubes, percutaneous endoscopic gastrostomy (PEG) or
radiologically inserted gastrostomy tubes inserted through the abdominal
wall.382
C3.3 The dying patient
C3.3.1 A patient who is approaching death will naturally
and gradually lose the ability to assimilate food and fluids, so that
assisted nutrition and hydration will at some point serve no purpose and may
even be contra-indicated. There is no dispute that discontinuation is
justified in such circumstances, even if there may be some practical
difficulty in determining whether or not the patient has reached this stage
in the dying process.383
C3.4 Patients who are not dying
C3.4.1 If a patient is incapacitated, assisted nutrition and hydration may
be instituted while his condition is stabilized and assessed, and maintained
until the patient has recovered sufficiently to resume eating and drinking.
This is uncontroversial. However, if recovery does not occur and the patient
does not die from the underlying illness or injury, he will be dependent
upon assisted nutrition and hydration to sustain his life. At this point, a
conflict may occur between those who want to terminate assisted nutrition
and hydration, and those who want to continue it.
C3.4.2 A patient who is capable of assimilating food and
fluids and is not dying will not die merely because he is unconsciousness,
whether as a result of an injury or illness or because of sedation. But
withholding or withdrawing assisted nutrition and hydration will cause his
death, and this is controversial.384
C3.4.3 Moreover, it not just “somewhat†controversial; it
is highly so. There have been several high-profile court rulings over the
last three decades that have led to the withdrawal of nutrition and
hydration from patients who were not dying, all of whom then died.385 A
number of the cases generated heated public debate; one precipitated a
constitutional crisis in Italy.386
Notwithstanding the law and the opinions of influential schools of bioethics,
some ethical traditions consider assisted nutrition and hydration to be forms of
care, not medical treatment.
C3.5.1 In Canada (and in many other jurisdictions), assisted nutrition and
hydration are legally considered to be forms of medical treatment, and, from
the perspective of the patient, the law considers all forms of treatment to
be optional. Reflecting the primacy of the principle of personal autonomy, a
competent patient can legally refuse any kind of medical treatment, even
life-saving or life-sustaining treatments like assisted nutrition and
hydration.387
It was acknowledged at trial that a
patient cannot be prevented from committing suicide in this manner.388 In the case of incompetent patients, substitute decision-makers
can legally refuse all forms of treatment on their behalf, including
assisted nutrition and hydration.389
C3.5.2 The law reflects the opinions of widely influential ethicists, but
cannot be said to represent an ethical consensus, unless one discounts the
views of those who disagree. Notwithstanding the law and the opinions of
influential schools of bioethics, some ethical traditions consider assisted
nutrition and hydration to be forms of care, not medical treatment.390
C3.5.3 The distinction is important, because those who make it typically
insist that, unlike treatment, care is not optional; it is a duty one owes
to others by virtue of our common humanity. While acknowledging that
assisted nutrition and hydration may be withheld or withdrawn when it cannot
be assimilated or is otherwise medically contra-indicated, they assert that
it must be provided in other circumstances if it is ordinarily accessible
and affordable.391
C3.6.1 Two further approaches can be identified. Some deem assisted
nutrition and hydration to be part of an overall treatment regime that may
include other medical interventions, like the artificial evacuation of
bladder and bowels.392
Alternatively (or, in addition) they may consider
assisted nutrition and hydration to be an artificial substitute for a failed
organ system, analogous to a ventilator used by someone unable to breathe
independently.393 On either view, refusal or withdrawal of the intervention
could be justified by reference to the principle of proportionality.
C3.7 Carter and withdrawal/refusal of nutrition and
hydration
C3.7.1 Madam Justice Smith must have been aware of the
controversies concerning the withdrawal of assisted nutrition and hydration
because she referred to the case of Tony Bland394 and to the cross-examination
of Professor John Keown concerning it.395 Professor Keown’s point was that
Bland was not dying and would not have died but for the withdrawal of
assisted nutrition and hydration; the intervention was withdrawn with the
intention to cause his death. The Christian Legal Fellowship drew this to
judge’s attention in its written submission.396
C3.7.2 Moreover, the judge quoted the evidence of
Dr. Michael Klein, who stated that he had been required to stop both
ventilator and tube feeding and hydration for competent patients who
specifically intended to die by such means,397 and evidence from Dr. Rodney
Syme that appears to describe the death of someone being killed by
dehydration and starvation while under palliative sedation.398
C3.7.3 It appears that, in considering all of this, the
judge overlooked the issue of intention and acknowledged only an ethical
controversy associated with the withdrawal/withholding of treatment from a
patient who had not provided informed consent or an advance directive.399
She considered this irrelevant, because the plaintiffs’ claims concerned
only competent adults who were acting freely on the basis of informed
consent.400
C3.7.4 The plaintiffs asserted that, assuming the
requirements of informed consent had been met, deliberately causing the
death of patients by dehydration and starvation was legally and ethically
acceptable in Canada, so deliberately causing their deaths by other means
should be equally so. Madame Justice Smith summed up their position:
In brief, the argument is that withdrawing a ventilator tube
or maintaining
a patient under sedation without hydration or nutrition are acts that will
result in death, just as much as the act of providing a lethal prescription
or administering lethal medications. To perform those acts, knowing of their
inevitable consequences, is to hasten death. Similarly, refraining from
life-saving treatment may result in the death of the patient, and is a
passive form of hastening death. If those practices are ethical, then so is
physician-assisted dying. â€401(Emphasis added.)
C3.7.5 Recall,
on the one hand, the distinction between withholding
nutrition and hydration from a patient when they are of no benefit or
contra-indicated, and, on the other, deliberately causing the death of a patient by
starvation and dehydration (C3.3, C3.4). This difference was ignored and
obscured by the judge’s generic reference to “maintaining a patient under
sedation without hydration or nutrition.â€
C3.7.6 Withdrawing a ventilator tube, sedation, and
refraining from life-saving treatment are different kinds of acts that may
or may not be ethically justified, depending upon the circumstances and the
ethical norms applied. Moreover, physicians are legally prohibited from
providing or continuing treatment against the wishes of a competent patient
(C2). Again, the judge failed to acknowledge the differences between the
acts, the ethical and legal significance of differing circumstances, and the
existence of conflict between ethical norms drawn from different sources.
C3.7.7 The defendant governments insisted that “legally
approved end-of-life practices in Canada†could be ethically distinguished
from physician-assisted suicide and euthanasia, but they did not assert that
any “legally approved†practices were unethical.402 In fact, both Canada and
British Columbia argued that committing suicide by dehydration and
starvation was a legal option available to everyone.403 Neither suggested
that this would be considered ethically unacceptable by anyone.
C3.7.8 More to the point, they did not assert that it was
unethical for an incompetent patient who was not dying to be deliberately
starved and dehydrated to death on the orders of a substitute
decision-maker, a “legally approved†practice in Canada that may be
considered medically appropriate, yet which remains ethically
controversial.404
C3.7.9 Here the plaintiffs had the advantage, because the
defendant governments would have been hard placed to distinguish the
practice from euthanasia; that is how it was characterized by defendant
witness, Professor Keown (C3.7.1). However, they could not identify it with
euthanasia without acceding to the plaintiffs’ argument and generating
significant controversy among those in the medico-ethical establishment who
support the practice.
C4.1 Madam Justice Smith offered the following explanation of palliative
sedation:
In the context of palliative care, it is fairly widely accepted that when a
patient is close to the end of life, and is experiencing symptoms that are
severe and refractory (that is, resistant to treatment), it is ethical
practice for her physician to sedate her and maintain her in a state of
deep, continuous unconsciousness to the time of death, with or without
providing artificial hydration or nutrition ("terminal sedation" or
"palliative sedation")405
C4.2 Palliative sedation is unregulated, has not been judicially considered
in Canada, and standards are under development. The judge notes that
palliative sedation cannot be assumed to "hasten death" when provided to
patients "in the final stages of dying," and is usually provided when a
patient is within a week of death, "although it is not always possible to be
accurate in such assessments."406
C4.3 According to the judge, the practice of palliative sedation "remains
somewhat controversial,"407 and she elsewhere admitted that "some aspects of
palliative sedation" were "possibly" problematic for Canadian ethicists and
practitioners. However, she did not elaborate further.
C4.4 The controversy was not about palliative sedation
per
se: rendering a patient unconscious in order to provide relief from
otherwise intractable symptoms. The controversy was about the use of
palliative sedation as an anaesthetic during the withdrawal or withholding
of food and fluids (assisted nutrition and hydration) from a patient who is
not dying.408
C4.5 The two acts (sedation on the one hand,
withholding/withdrawing nutrition and hydration on the other) are clearly
distinguishable in terms of their structure and their potential
consequences. There is no evidence that properly administered sedation can
cause the death of a patient, but it is clear that depriving a patient of
food and fluids will do so.
C4.6 When a patient is committing suicide or when
death is deliberately caused by dehydration and starvation, palliative
sedation can be used to ameliorate and mask the effects of the process.409
This is unquestionably legal when the requirements of informed consent have
been met, but, as the evidence of Professor Keown indicated, there was no
consensus - let alone a strong consensus - that deliberately causing the
death of a patient by dehydration and starvation is ethically acceptable. In
these circumstances, the controversy is not about the ethics of palliative
sedation, but the ethics of euthanasia and suicide (C3).
Evaluation of the proportionality of interventions and assistance is a
ubiquitous feature of the provision of health care, so much so that in
non-critical situations it may hardly be noticed. However, in critical care and
palliative care the importance of and difficulties associated with this kind of
evaluation are likely to be more pronounced. . .
C5.1 The distinction between ordinary and extraordinary (or proportionate
and disproportionate) interventions relates to the principle that one is not
ethically obliged to preserve one's health or life by recourse to
extraordinary interventions or those that are disproportionately burdensome.
Similarly, health care workers are not ethically obliged to provide
extraordinary or disproportionate interventions. This principle is
acceptable to many who believe that human life is sacred (or of inestimable
value), but who also believe that life need not be preserved at all costs.410
C5.2 One of the most common applications of this principle is in
advance directives or orders that specify "Do Not Resuscitate" (DNR) or "No
Cardiopulmonary Resuscitation" (No CPR). These are often prepared for
elderly people in frail health or those with terminal illnesses because
CPR can cause harm (such as broken ribs), while
research indicates that there is very little likelihood that CPR will have a
positive outcome for such patients. In contrast, CPR is encouraged when
there is a prospect of recovery ( such as a witnessed collapse) because the benefits outweigh adverse effects.411 The
example illustrates another important point: that interventions are not
categorized as "proportionate" or "disproportionate" without reference to
circumstances.
C5.3 Evaluation of the proportionality of interventions and
assistance is a ubiquitous feature of the provision of health care, so much
so that in non-critical situations it may hardly be noticed. However, in
critical care and palliative care the importance of and difficulties
associated with this kind of evaluation are likely to be more pronounced:
so, too, in the case of patients who are in persistently
minimal consciousness. Much depends on
circumstances of each case, and some degree of subjectivity cannot be
avoided.412
C5.4 In particular, since the patient bears most of the burdens - and
usually the most significant burdens - one would expect the patient's views
about interventions and assistance to carry the greatest weight. In fact, in
law, a competent patient (or substitute decision-maker) can refuse any kind
of intervention or assistance, even those others would consider ordinary or
proportionate. The legal basis for this is the principle of personal
autonomy.
C5.5 The law notwithstanding, a broad spectrum of significant religious traditions and medical
ethics derived from them hold that one is morally obliged to seek and accept
ordinary or proportionate interventions and assistance that will preserve
one's health and life, and that health care workers are obligated to provide
and maintain such services.413 From this perspective, the decision of a patient
who is not in the final stages of dying to refuse an intervention (or of a health care worker to provide it) may be
seen to be blameworthy, as in the example above of suicide by starvation.
C5.6 Again, health care workers are expected to comply with the law.
However, a health care worker who believes that a patient is wrong to refuse
an intervention may conform to the patient's wishes, not primarily because
of the law, but because that response is somehow respectful of the human
person who is the patient. It may, in short, be an ethical response, and one
that can be described as ethically correct.414 But such a response is not
indicative of an "ethical consensus" about the patient's choice. This
becomes clear when someone who has moral or ethical objections to a
patient's decision is asked to do something to make it effective.
The plaintiffs claim and that knowledge and intention are ethically equivalent
in this situation; the defendants deny it; the judge fails to articulate a
rational and coherent position on the ethical significance of intention.
C6.1 The subject of intention as an ethically significant element in
decision-making was introduced,415 but the judge did not pursue it because, in
her view, the focus of the Supreme Court of Canada's discussion of intention
in Rodriguez was law, not ethics.416
The judge’s view that intention could provide the basis of a valid
distinction in law but not in ethics is criticized in Appendix “B†as
ahistorical and indefensible (B8.5.3).
C6.2 Here the focus is on the consequences of the judge’s
failure to attend to intention. For example, in summarizing the plaintiffs' claim that
physician-assisted suicide and euthanasia cannot be distinguished from
accepted end-of-life practices, she said:
. . .the argument is that withdrawing a ventilator tube or maintaining a
patient under sedation without hydration or nutrition are acts that will
result in death, just as much as the act of providing a lethal prescription
or administering lethal medications. To perform those acts, knowing of their
inevitable consequences, is to hasten death.417
C6.3 However, withdrawing a ventilator may not, in fact, result
in death; Karen Ann Quinlan lived nine years after her ventilator was
withdrawn.
418
The judge cannot properly analyze the argument as she presented
it because she inappropriately conflated two different procedures that can
have two different outcomes.
C6.4 Note that her reference was to knowing the consequences, not
intending them. The plaintiffs claim and that knowledge and intention
were ethically
equivalent in this situation; the defendants deny it; the judge failed to
articulate a rational and coherent position on the distinction and the
ethical significance of intention because she ignored it.
Madam Justice Smith cannot credibly claim to have identified a consensus to the
effect that physician-assisted suicide and euthanasia are not ethically
distinguishable from currently legal end-of-life practices. To her credit, she
does not make such a claim.
C7.1 In Part VII of the Carter ruling, Madame Justice Smith failed to
articulate and address ethical issues associated with the withdrawal/refusal
of treatment or care and euthanasia/assisted suicide. She also failed to
distinguish between palliative sedation used as a last resort to relieve
intractable symptoms during the dying process, on the one hand, and used as
anaesthesia for euthanasia or assisted suicide by dehydration and starvation
on the other.
C7.2
The judge also failed to consider the distinction between
legal and ethical evaluation of patient autonomy, and ignored the principle
of proportionality and its application to refusing or withdrawing
interventions. Further, she ignored other factors, principles or concepts that
have a bearing on the ethical evaluation of refusing or withdrawing assisted
nutrition and hydration, such as the nature of the intervention, the
distinction between treatment and care and the related concept of moral
obligation.
C7.3 Finally, the judge failed to provide a satisfactory explanation of her
view of intention as it related to the ethics of end-of-life decision
making.
C7.4 In sum,
Madam
Justice Smith cannot credibly claim to have identified a consensus to the
effect that physician-assisted suicide and euthanasia are not ethically
distinguishable from currently legal end-of-life practices. To her credit,
she did not make such a claim.419