Tuesday, March 31, 2015

Directives from Supreme Court must be enforced.

This article was published by Advocate Daily on March 31, 2015.
Hugh Scher

Many Canadians do not recognize the full extent to which existing rules around end-of-life decision-making are not serving as appropriate barriers to inappropriate conduct, says Toronto health and human rights lawyer Hugh Scher.

Concerning cases around end-of-life care decisions continue to crop up across Canada, says Scher, noting it is unclear whether directives from prior court rulings are being respected and enforced.

In one recent case, a Toronto physician and hospital were sued by a family who alleged a “do not resuscitate” (DNR) order was unilaterally placed on an elderly patient at Toronto East General Hospital against their wishes, reports the Toronto Star.

The Star reports the statement of claim, which seeks $1.2 million in damages for four of Canh Luong’s family members, alleges Dr. Alvin Chang and Toronto East General committed “wrongful death, abuse of power, negligence and breach of fiduciary duties.”

The statement of claim, says the Star, alleges Chang was negligent in preferring “his own opinion over that of the plaintiffs with respect to the code status of Luong,” for failing to consult them before making the change, and for failing “to provide Luong with the necessaries of life.”

Scher, who is not involved in the Luong case but who has been involved in other such cases, says clear rules and meaningful consequences for those who go against the established guidelines are needed.
“If we are not able to stop the most basic abuses relative to DNR orders or end-of-life care measures now, expanding those practices presents serious dangers,” says Scher. “The Supreme Court of Canada made it clear in Rasouli that doctors should not be acting unilaterally with regard to the withholding and withdrawal of treatment including end-of-life decision-making measures and that consent to treatment or refusing treatment – particularly where it forms part of an ongoing treatment plan – is required from the patient or substitute decision-maker.”
Scher says, 
“Doctors who act against that consent or without it are acting without lawful authority and in my view, are running afoul of the law as established by the Supreme Court of Canada.”

In Carter, released in February, the Supreme Court struck down the ban on doctor-assisted suicide in specific cases. The court gave the federal government 12 months to craft legislation to respond to the ruling, with the ban on doctor-assisted suicide standing until then.

The Carter decision risks creating a culture of permissiveness with regard to all end-of-life matters, says Scher, and real consequences are required for those that break or ignore the law. Without them, all Canadians are put at serious risk in health care settings across the country, Scher states.

For more information contact:
Hugh Scher, EPC legal counsel (Toronto): 416-816-6115 or hugh@sdlaw.ca

Scher, has acted as counsel to The Euthanasia Prevention Coalition in several high-profile end-of-life files including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.

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