Wednesday, February 22, 2012

Cuthbertson v. Rasouli -- Appellants' Factum

A few days ago, the Appellants in Cuthbertson v. Rasouli filed their Factum with the Supreme Court of Canada.  Given some logical and factual errors in the Court of Appeals July 2011 opinion, the Appellants' argument is pretty strong.  But there are a few points that struck me as problematic:
  • "The patient's beliefs are irrelevant to the question of whether a treatment offers a medical benefit. . . .  can only be based on the clinical judgment of a medical professional . . . ."  [para. 44]
  • "The clinical judgment as to whether a treatment offers a medical benefit vary from physician to physician. Some physicians may be willing to offer . . . others are not . . . ."  [para 45]
  • "[A]ny assertion that the Consent and Capacity Board provides an efficient mechanism to resolve these disputes is illusory."  [para 103]
  • Appellants argue that there is no ethical or legal obligation to provide non-indicated treatment outside the standard of care.  To this extent, Ontario law is consistent with the law in most U.S. states that basically state this proposition expressly in their Health Care Decisions Acts.  But exactly which treatment is outside the standard of care?  Appellants propose that "the physician should be able to seek an immediate determination from the court . . . a summary trial of the issue on an expedited basis . . . ."  [para 108]  This is clearly more fair than leaving the decision with an institution's own ethics committee (as in Texas and as urged by the New Jersey medical associations in Betancourt).  But how quickly could such a proceeding really be accomplished?  And would there not be a right of appellate review resulting in the same delay problems plaguing the CCB?


7 comments:

Anonymous said...

I believe that the patient's beliefs are invisible to the intensive care community of Ontario.

In their publication "Perceptions of "Futile Care" among caregivers in intensive care units", the survey done by this Ontario community rendered the concluding statement,"we generated a working definition of medically futile care to mean the use of considerable resources without a reasonable hope that the patient would recover to a state of relative independence or be interactive with his or her environment."

What is a state of "relative independence"? Many physically disabled people cannot live independently. How much is "considerable resources"? This sounds very value-laden and ambiguous to me. It does not sound as if it relates to "medical benefit" but rather to rationing of care.

The paper goes on to say, "Respondents felt that futile care was provided because of family demands...."

Family demands? Did they ever consider that the patient or family has a different belief or value system than they?

It is no surprise therefore that the respondents stated in their factum that the determination of benefit can vary among physicians. The Ontario College of Physicians and Surgeons, in their end of life policy, have been allowing physicians to withhold and withdraw treatment that they unilaterally deem not to have "permanent benefit" according to their own definition of "benefit" for years. The doctor "should" inform the family, but there is no obligation to do so.

Furthermore, the Coroner's Office of Ontario determines death to be natural if death results from the withdraw of treatment that the physician deems to be "futile." This Office offers no definition for futility but relies on the doctors and, it seems, their value-laden, cost based analysis definition of who is worthy of treatment.

This system is allowed to exist because it is covert. The war vet- DeGuerre's daughter, Joy Wawrzyniak said it best in the TV interview. She said if she had not arrived at the very moment she did, she never would have known what happened to her dad.





"http://www.cmaj.ca/content/177/10/1201.full

Anonymous said...

grzarthe specandrYes! An institution's ethics committee is not a neutral body and the parameters of "beneficiasl treatment" will be difficult to define in the legal sense for physicians and hospitals.

In the end, It appears the courts will have to provide a solution that protects the rights of all parties ---but how??

The courts in the US have held that a person's personal religious beliefs are to be respected when "beneficial treatment" is offered to a Medicaid patient who will not accept a "blood transfusion" in a transplant, etc.because of their religious beliefs.

The court permitted the Medicaid patient to travel to a State where the transplant could be accomplished without the blood transfusion.

Anonymous said...

grzarthe specandrYes! An institution's ethics committee is not a neutral body and the parameters of "beneficiasl treatment" will be difficult to define in the legal sense for physicians and hospitals.

In the end, It appears the courts will have to provide a solution that protects the rights of all parties ---but how??

The courts in the US have held that a person's personal religious beliefs are to be respected when "beneficial treatment" is offered to a Medicaid patient who will not accept a "blood transfusion" in a transplant, etc.because of their religious beliefs.

The court permitted the Medicaid patient to travel to a State where the transplant could be accomplished without the blood transfusion.

Anonymous said...

Anonymous 3 here.

So how will we protect the society, institutions and practitioners from runaway costs (economic, moral, psychological and intellectual) of accommodating diverse and aberrant notions of appropriate critical care and producing a perennial crop of high-need, highly impaired. The money is running dry, institutions are strained, staff are burning out and best and the brightest are not going to go into a practice where they just take orders, especially if they are irrational, arbitrary or abstracted. There will be adverse, unintended consequences for a litigious minority chillingly driving healthcare policy toward medically futile and legally-defensive, excess spending and producing moral distress on professional who have to implement these policies on actual critically ill patients.

So, go ahead, punish and constrain those evil and ego-maniacal doctors, and while you are being cynically manipulated by means of childlike and sentimental notions, resentment, envy and some rhetorical sense of morality and simplistic sets of values, just know that while we wrestle over the moral-bones, here on the floor, there's always a Divida et Impera set of folk sitting to a feast at-table, who will benefit in a no-nonsense, monetary and power-differential way from the society being distracted in these ways. In other words, who will benefit as the society as a whole gets bleed dry by such policies as the ad nauseam and illusory pursuit of a set of vital signs.

All material interests, no matter how covert or far-reaching, have to be thoroughly examined and the entire policy will have to be stitched together in a synthetic way by consensus, not by dictate. Always remember, all of us, all of them, you and me, one way or another will die. There is no escaping that. "Doing Everything," does not change that, and never will.

Anonymous said...

I'm curious why the Anonymous 3 comment was not approved. I think it is a valid perspective, urgent, passionate, perhaps Nietzschean, but not disrespectful or inflammatory.

Anonymous said...

Anonymous 3 makes HIS points and exposes the great problems involved in balanceing "medical futility" and "fiscal futility."

If there is to be EOL Futility Law practiced by hospitals, then there must be EOL Futility Discussions for OUTPATIENT Care and "informed consent" for "palliative outpatient care."

The physicians and the suppliers in the USA didn't want to be put under the 1991 Patient Self Determination Act passed by the US Congress --and they are not subject to the provisions of the 1991 PSDA,

Appareently, they didn't want to have these EOL discussions and didn't want the burden of "informed consent" etc. for outpatient treatment at the end of life.

Further! mandated EOL discussions would invite "self rationing" of outpatient care and thus ration profits!

Covert DNRs are invited and the elderly are at great risk when they agree to "NO CPR" because this means that DNR/DNI code can be applied and they can legally be kept out of Intensive Care and Critical Care Units.

Recent studies reveal that there is "Increased Risk of Death in Patients with Do-Not-Resuscitate Orders!

Yes! it is true that nedicine can do "everything" and still we will ultimately die. But the choice between "everything" and "nothing" should still be made by the competent patient or the surrogate, when the patient is not competent --- in my humble opinion! My "vital signs" are MINE and important to me! .

Anonymous said...

I am the first commenter and I am responding to Anonymous 3.

You make some great points and it is refreshing to hear someone from the front lines speak their mind.

Indeed, there are difficult decisions to be made and insufficient resources. I think we can agree on that.

Personally, I desire a medical system that is based on truth and transparency.I believe that physicians should always act in a manner that is trustworthy, in the best interest of the patient and with respect of the patient or family values-- all within the confines of a system with transparent limitations. I do not believe that the doctor should be the bed-side rationing agent of the state.

I don`t think it is right or fair to anyone for the physician to `play God`regarding who lives or who dies when the public believes that they have the legal right of consent. If there are insufficient funds, we must be truthful about that. The judge in the Rasouli case specifically asked the physicians lawyer if the issue related to resources and this was strongly refuted. I wonder why this opportunity to reveal the truth was lost.

As a member of the public, I have no problem suggesting that we must talk openly about these issues and find a resolution. It will not be an easy discussion but it must occur. Why doesn`t the ICU community demand transparency and change rather than enduring moral distress and treating people in a way that must surely cause them to lose sleep or conscience.

Finally, I am very saddened for you, if you are an intensivist, that your humanity and compassion for people who have different values than you have diminished to the point that in your frustration, you consider them to be childlike and sentimental. You have lost the ability to respect patients who do not share your values. You have lost the ability to consider, understand and respect that some people choose to sacrifice and care for someone whom others might consider a burden. That is not to say that unlimited funds should be expended, however--but surely you should not belittle the values of others. Canada is a diverse, free and democratic country. In your forced role as bedside economist, you have lost the essence of what is most important to being a good physician. You have lost your compassion. This is indeed a tragedy.