Law & Ethics

1. Law & Ethics Camille Ciarniello Director, Risk Management and Patient Safety Providence Health Care For the Health Care Ethics Seminar March 30, 2009

2. Objectives At the end of this session, participants will be able to: • describe how the law in British Columbia has evolved; • describe the role of ethics in the formation of BC laws; and • have a practical opportunity to analyse case law using a legal and ethical lens.

3. 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.

4. 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".

5. 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

6. "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

7. 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”

8. 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!

9. 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

10. 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

11. 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

12. 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”

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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.

19. 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

20. 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?

21. 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?

22. 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.

23. 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

24. 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

25. 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

26. 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

27. Criminal Code s 241. Every one who • counsels a person to commit suicide, or • 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.

28. 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.

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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”.

36. “There are some patients we cannot help, there are none we cannot harm” Arthur L. Bloomfield, Professor of Medicine, Stanford University, 1888-1962

37. Law and Ethics Case Studies

38. 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

39. 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

40. 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

41. 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

42. 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.  

43. 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 • The treatment is recommended by a duly qualified medical practitioner or dentist, • The consent of a parent or guardian of the child would otherwise be required, and • No parent or guardian of the child is available to consent to the treatment

44. 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.

45. 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.

46. 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

47. 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

48. 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.

49. 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

50. 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”