Withholding and Withdrawal of Potentially Life-sustaining Treatment

As a patient, you have the right to refuse treatment, even treatment that could keep you alive.
The Supreme Court of Canada has written that a patient has a right to refuse treatment, even treatment that could sustain life. They said that people “have a right to choose how [their] body will be dealt with.” Also, that a doctor “has no choice but to accept a patient’s instructions to discontinue treatment.”

 

Withholding treatment

Withholding potentially life-sustaining treatment means not starting treatment that could keep you alive. An example would be not trying CPR when your heart stops beating.

 

Withdrawal of treatment

Withdrawal of potentially life-sustaining treatment means the doctor stops giving you treatment that could be keeping you alive. For example, a doctor might stop giving you artificial ventilation.

 

Potentially life-sustaining treatment

Treatment that could keep you alive is called “potentially life-sustaining treatment.” It includes drugs and equipment, and fluids or nutrition given through an IV or another tube.

Can doctors treat without consent?

As a patient, you have the right to make your own health care decisions – even to refuse treatment that could keep you alive – as long as you meet the following criteria.

You are an adult or, in some provinces and territories, a mature minor.
You are an adult in British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon if you are at least 19 years old. In Alberta, Manitoba, Ontario, Prince Edward Island, Québec, and Saskatchewan, you are an adult at 18.

If you are not an adult, the answer to whether health care providers can treat you without your consent will depend on whether you are what is called a “mature minor.”

A mature minor is someone under the age of 18 in some parts of Canada or 19 in others who understands what can happen as a result of a decision and is independent enough to make a decision with significant consequences on their own. A mature minor is under 19 in British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon, and under 18 in Alberta, Manitoba, Ontario, Prince Edward Island, Québec, and Saskatchewan.

If you are a mature minor in most parts of Canada, your refusal of treatment must be respected. However, British Columbia, Alberta, Saskatchewan, Manitoba, and Newfoundland and Labrador have child protection laws that might stop you from having control over these decisions. The Supreme Court of Canada has written a decision about how to interpret such laws. They said that acting in the minor’s best interests can include respect for their decisions if they are a mature minor. But courts will have a high standard for maturity when a minor wants to refuse potentially life-sustaining treatment since such a decision can have such significant consequences.

If you are an immature minor, your parents will usually make health care decisions for you. If your parents cannot do this, provincial and territorial laws list who can act as a substitute decision maker. Doctors must respect a substitute decision maker’s decision to refuse to consent to treatment except in some cases. If a doctor believes that a substitute decision maker is not acting in a patient’s best interests, then they should ask the court to order them to treat the patient.

You are competent.
You are competent if you can understand the decisions you need to make and what may happen as a result of your decisions. If you are not competent, your doctors will have to ask a substitute decision maker for consent to treat you. If you have named someone in an advance directive, your doctors must have their consent. Otherwise, they must go to a court or tribunal for permission to treat you. If you didn’t name anyone in an advance directive, they must turn to a list of people that the law says can act as your substitute decision maker. Again, your doctors must have their consent to treat you or must go to a court or tribunal for permission.

No one is pressing you to decide one way or another.

 

Can doctors withhold or withdraw treatment without consent?

The law is not clear on whether doctors can withhold or withdraw treatment without the consent of a patient (if they are competent) or their substitute decision maker (if they are not).

Some courts have said that doctors may not withhold or withdraw treatment without consent.

Other courts have said that doctors may withhold or withdraw treatment without consent.

Still other courts have said the law is not clear, and they have not made decisions on cases before them.

In Ontario, which has a health care consent law and has had court decisions, there is some clarity. In 2013, the Supreme Court of Canada ruled that the law says a patient’s substitute decision maker must give consent before the doctor can withdraw treatment. Again, we are talking about treatment that might be able to keep a patient alive. Click here for the decisions of the trial court, the Ontario Court of Appeal, and the Supreme Court of Canada, as well as the materials filed in court at both levels of appeal.  In 2019, the Ontario Superior Court of Justice issued its decision in Wawryzniak which, according to the College of Physicians and Surgeons of Ontario concluded that: ”the writing of a no-CPR order and withholding of CPR do not fall within the meaning of “treatment” in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. As such, consent is not required prior to withholding CPR and physicians are only obliged to provide CPR in accordance with the standard of care.” The CPSO Policy is available here.

Unfortunately, even this amount of clarity is only available for Ontario as it is based on interpretations of an Ontario law. The confusion in other provinces and territories would be best cleared up by those areas passing laws; until that happens, people will have to ask courts to resolve conflicts.

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