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 Indeed, disagreements can arise when physicians believe a certain treatment should be withheld or withdrawn because it will not provide any medical benefit, but patients, families, or substitute decision-makers want it.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 medico-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.
Do-not-resuscitate orders
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. 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 examples
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. Further amendments to the Criminal Code came into force on March 17, 2021, in response to Québec’s Superior Court decision that invalidated the requirement that a patient’s death be reasonably foreseeable to be eligible for MAID. The Criminal Code 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; 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 have provided 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. A mental illness is not considered an illness, disease, or disability for the purpose of eligibility to MAID. 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, which differ depending on whether or not natural death has become reasonably foreseeable. The safeguards include the following requirements: the request be made in writing, and be signed and dated by the patient before an independent witness; another independent medical or nurse practitioner has provided a written opinion confirming that the patient meets all of the eligibility criteria; and the patient has been given the opportunity to withdraw the request.
Where natural death is not reasonably foreseeable, the following additional safeguards apply:
- If neither MAID assessor nor the provider have expertise in the condition causing the patient’s suffering, a nurse or medical practitioner with that expertise must be consulted.
- Both MAID practitioners must discuss with the patient reasonable and available means to relieve the suffering. Where appropriate, the patient must be offered the opportunity to consult with relevant professionals, such as counselling services, mental health and disability support services, community services, and palliative care.
- There must be an assessment period of 90 clear days, which may be shortened if both MAID practitioners are of the opinion that the patient will lose capacity imminently.
- Finally, the patient must expressly confirm consent to MAID immediately before MAID is provided.
Despite the requirement to provide consent to MAID immediately before MAID is provided, a patient whose natural death is reasonably foreseeable can, in certain circumstances, waive the requirement that their consent be confirmed at the time MAID is provided. “Waivers of final consent” must be distinguished from an “advance request.” An “advance request” refers to an arrangement where a person is not currently seeking or eligible for MAID. The request is intended to apply to future circumstances under which the patient wants to receive MAID if incapable of asking or consenting. Advance requests are not permitted under existing federal or provincial law, except in Québec. Since October 30, 2024, Québec’s end-of-life legislation allows advance requests for MAID in that province, under certain conditions. Because the Criminal Code of Canada does not allow advance requests, special considerations apply in Québec. Physicians considering being involved in an advance request for MAID in Québec should contact the CMPA for case-specific advice.
Further safeguards have also been adopted with respect to self-administration of MAID, waiver of the final consent to MAID where natural death is reasonably foreseeable, and reporting obligations. Provincial legislation, and medical 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. Helpful guidelines on end-of life care were also issued by the College in Québec. 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, it is not possible for a physician to prescribe the medication to be self-administered by the patient. As of December 7, 2023, nurse practitioners are permitted to assess a patient’s eligibility and provide MAID in Québec. Before that date, only physicians could do so.
Advance directives
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. However, as mentioned above, advance requests for MAID are permitted in Québec where certain conditions are met.
Communication
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.2
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.
Key concepts
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 medical 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 on 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/territorial legislation, and with applicable medical regulatory authority (College) guidelines. They may also consult with resources such as the Canadian Association of MAID Assessors and Providers (CAMAP) Canadian MAID Curriculum and Government of Canada publications on MAID.
- 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 and medical assistance in dying. The CMPA should be contacted when there is a disagreement on recommended treatment decisions for end-of-life care.
References
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Wawrzyniak v Livingstone, 2019 ONSC 4900 (CanLII)
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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
