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Service, not Servitude
Legal Commentary

"Do Not Resuscitate": Whose Choice?

Court Gives Course in Medical Ethics to the Public Trustee

Lex View No. 23 (Centre for Cultural Renewal)
Reproduced with permission

Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. *
Brad B. Miller, Comm.,LL.B., LL.M. (magna cum laude) *
Sawatzky v. Riverview Health Centre Inc.
Manitoba Court of Queen's Bench File No. CI 98-01-10245
Date of Decision: November 13, 1998

Key Terms: medical ethics - "do not resuscitate" order - patient autonomy - responsibility of the public trustee - conscience of the physician

Summary of Facts:

Mr. Sawatzky suffers from Parkinson's disease and has been a patient at the defendant's health care facility since May 28, 1998. On admission to the hospital, Mr. Sawatzky was assessed by a doctor who decided that if Mr. Sawatzky went into arrest, he should not be resuscitated. Mr. Sawatzky's wife opposed the "do not resuscitate order", and the doctor acquiesced. Over the summer, the doctor determined that Mr. Sawatzky required a procedure for a cuffed tracheostomy tube. Mrs. Sawatzky opposed that procedure, and the hospital successfully applied to have the Public Trustee appointed as Mr. Sawatzky's guardian. The Public Trustee approved the procedure on Mr. Sawatzky's behalf, and Mrs. Sawatzky eventually consented as well. The Public Trustee's supervision order over Mr. Sawatzky remained in effect at the time of trial.

After Mr. Sawatzky developed pneumonia (not his first bout with it), the doctor reconsidered the question of resuscitation, and on October 29 or 30, 1998, without notice to Mrs. Sawatzky and without receiving a second opinion, made a "do not resuscitate order". When another doctor advised Mrs. Sawatzky of what had happened, she stated her objection, and then commenced this legal proceeding. Mr. and Mrs. Sawatzky brought this application for an interim order lifting the "do not resuscitate order" pending trial.

Significant Issues:

Can a doctor or health care facility legally issue a "do not resuscitate" order if the patient or the patient's guardian refuses to consent to that order? What are the obligations of the Public Trustee's office with respect to consenting or opposing "do not resuscitate orders?


The "do not resuscitate" order made on October 29 or 30, 1998, was ordered withdrawn, and the resuscitation order which was previously in effect was ordered to remain in effect until further order of the Court.

The Court's Reasons:

Because of the prospect of Mr. Sawatzky going into arrest before the matter could be heard at trial, the plaintiffs applied for an interim order. In an interim application, a court does not come to a final conclusion about the ultimate issues involved, but is required instead to make a preliminary assessment of the merits, and consider a number of other practical matters. Among them, a judge must weigh the hardship caused to each side if the order is granted or refused, and the desirability of maintaining the status quo.

In his preliminary assessment of the merits of the case, the motions judge, Justice Beard, noted that in the case law to date, "the courts have stated that a decision not to provide treatment is exclusively within the purview of the doctor and is not a decision to be made by the courts". However, the judge also noted that there were very few cases on point, and none of them considered the impact of the Charter of Rights and Freedoms. Owing to novel features of this case which have not been litigated before, the judge was unable to comment much on the strengths and weaknesses of the case, but was nevertheless satisfied that it raises meritorious issues which deserve to be tried.

In weighing the potential hardship to both sides, or the "balance of convenience", Justice Beard noted that courts have held that the law should not require a physician to carry out treatment which he or she does not believe to be in the patient's best interest. Otherwise, the court would be ordering the physician to act against his conscience, and against his fundamental duty to his patient. The courts have said that if a patient disagrees with the physician's decision not to treat, the course of action open to the patient is to sue the physician in negligence. Obviously this would not be a satisfactory remedy in this case, and the balance of convenience was settled in favour of Mr. Sawatzky.

In deliberating on the desirability of maintaining the status quo, Justice Beard had to consider the effect of the resuscitation order on both the treating physician and the hospital. Since the defence was in part framed in terms of respecting the integrity of the conscience of the treating physician, the Court closely considered the mechanics of carrying out the resuscitation order. The treatment itself is not controversial, unlike a procedure like abortion. It merely requires the defendant to perform CPR and dial 911. CPR would be performed by the first qualified person who found Mr. Sawatzky to be in arrest. It is unlikely that the physician who issued the "do not resuscitate" order would be that person. In any event, the judge reasoned that even if ordering resuscitation was perceived as an "ethical dilemma" to that doctor, it was one which the doctor had been able to live with for the preceding five months.

The judge was also concerned about the parties' disagreement about Mr. Sawatzky's abilities and prognosis. While Mrs. Sawatzky presented evidence about her husband's ability to communicate with her, the treating physician contested this and also claimed that Mrs. Sawatzky's expectations about her husbands prospects of recovery were unrealistic. This difference in opinion contrasts with similar cases, in which the patients were mainly in persistent vegetative state, and there was no dispute about their prognosis. Judge Beard determined that this uncertainty weighed in favour of granting the injunction.

All of the factors which the Court was obliged to consider, from the merits of the case to the balance of convenience and the effect of maintaining the status quo, all pointed in favour of granting the injunctive order compelling the defendant to resuscitate Mr. Sawatzky in case of failure.

Lex View Commentary:

This case pulls the Court into some deep waters, both in terms of the gravity of the issues and their philosophical complexity. An initial reaction is to wonder how it is possible that patients in Canadian health care centres can, against their wishes, be denied fairly basic, and absolutely vital, medical intervention. Even if the treating physician's evidence is taken over that of the patient's wife, and Mr. Sawatzky was unable to express an opinion on the matter himself, how is it that a physician feels at liberty to make an order as final as "do not resuscitate" without consulting with, or even informing, the patient's family? How is it that the Public Trustee's office, which was ordered to act on Mr. Sawatzky's behalf, was not informed of the doctor's decision, and then, scandalously, refused to take any steps on Mr. Sawatzky's behalf? In recent days, medical ethicists have raised the charge that such practices are occurring throughout the country, with doctors overstepping authority provided by a 1997 decision of the Manitoba Court of Appeal, which held that physicians did not need to seek family consent or a court order where the patient was in a persistent vegetative state. Having been described by the treating physician as "alert", Mr. Sawatzky obviously did not come within the scope of that case.

The defendant health care centre relied heavily on the ethical and legal principles loosely indicated by the term "conscience". It is a principle of English law, of persuasive precedence in Canada, that a physician should not be required to provide treatment which she or he feels is not in the best interests of the patient. This would seem uncontroversial; the state cannot require physicians, who take an oath to act in the best interests of their patients' health and well-being, to instead harm them. Of course, doctors nevertheless are answerable to the state at many levels, they are subject to the legal system in actions for negligence, and they are answerable to governing bodies which are in turn authorized by the state. Conscience is not determinative in any event; it does not trump the law. If a doctor's clear conviction was that it would be unethical to treat some member of a racial minority (or majority) because he perceived that their life was of no benefit, the law would not defer to his conviction. So the argument without further nuance, fails.

In any event, to what extent is a physician's conscience jeopardized by being required to provide treatment which she feels to be of no benefit? And what is the legal significance of such a strain? As the justice pointed out, requiring a doctor to provide CPR to someone whom the doctor believes ought to die, is not at all analogous to, say, requiring a doctor to perform an abortion. While it is always necessary to pay attention to the context of any technical procedure to ascertain its moral significance, performing CPR is not a prima facie morally contentious procedure, such as abortion. The doctor is not being called on to perform a procedure which could be fundamentally distressing to her. The most that is at stake is that a doctor will be concerned about matters of efficiency, (i.e. that resources are being wasted on someone who it is not believed can benefit from them), or that the patient is prepared to accept death, and yet is being kept alive against his will by artificial means. As this case specifically involves the situation where either the patient himself, or those who are legally required to act on his behalf, have already specifically refused to consent to revoking a resuscitation order, we can dispense with the situation where the patient is willing to accept death where the law already recognizes a right to be allowed to die by letting nature take its course. Where the efficiency concerns of a doctor collide with the desire of a patient to live, we submit that it is the doctor's conscience, if need be (and the Court goes a long way to showing that this argument is any event a red herring), that must give way.

Another aspect of the question flowing from concerns of conscience, is the question of what it means to "benefit" a patient, and the relative roles of the medical practice, philosophy, and law in answering this question. The defendant submitted that to continue Mr. Sawatzky's life was not to benefit him. The authorities drawn from England said that judicial deference to the medical profession means that it is not a question to be answered in the legal arena.

Undoubtedly, judges would be foolish to interfere in the ordinary treatment of medical patients. As they are very aware, they are not medically trained, and they are not competent to make decisions about how to apply medical techniques. But courts do perform a supervisory function over medical practice, even if primarily after the fact, and not all decisions which a doctor makes will be of a technical, medical variety. Where decisions involve issues at the edge of life, and the fundamental question becomes, "is continued life a benefit to this person?" then the resources which medical practice has to provide an answer are quickly exhausted. It is not a medical question at all. Answers must be sought within traditions of philosophical and religious enquiry. And those traditions which have fueled our concept of justice, have firmly held that the sanctity of all human life is by virtue of the nature of human life, and not according to individual ability, and therefore applies to all human beings equally. Mr. Sawatzky's life, no matter how gravely impaired it is or becomes, is his right and an aspect of the common good all persons share. That right is recognized, although not created, by Canadian law. This was the holding of the majority of the court in the Supreme Court of Canada's reasons in the Rodriguez case.

Doctors who arrogate to themselves the question of which lives are worthy of living, and therefore worthy of treatment, are abusing their jurisdiction. Two individuals under a duty to act in Mr. Sawatzky's interests, his doctor and the Public Trustee, failed to do so. The Court did well to take up its role as last line of defence for the aged and relatively powerless. It will fall to the trial judge to consolidate the sense of Justice Beard's reasoning in a final judgement.

This decision shows the need for judicial vigilance in such cases. Where, as here, medical decisions appear to have taken pages from the widely discredited "end of life" practices of the Dutch medical community, judicial response is an essential corrective. Here an appropriate judicial decision is all that stood between faulty ethics, an ineffectual public trustee and a sick and powerless man near the end of his life.

Lex View is an information and analysis service that provides journalists, politicians and interested members of the public with ongoing, accessible and concise analysis of high-court decisions. It focuses on cases that have important social, public policy, human rights and moral implications.

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