Law & Ethics

Holy Family Hospital | Mount Saint Joseph Hospital | St. Paul’s Hospital | St. Vincent’s Hospitals: Brock Fahrni, Langara, Heather | Youville Residence | Marion Hospice

Camille Ciarniello

Director, Risk Management and Patient Safety

Providence Health Care

For the Health Care Ethics Seminar

March 30, 2009

Law & Ethics

Objectives

At the end of this session, participants will be able to:

1. describe how the law in British Columbia has

evolved;

2. describe the role of ethics in the formation of BC

laws; and

3. have a practical opportunity to analyse case law

using a legal and ethical lens.

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.

• 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".

http://www.duhaime.org/LegalDictionary/C/Civillaw.aspx

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

"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 McCardiePrager v. Blatspiel 1924 England

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”

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!

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

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

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

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”

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

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

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

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

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

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.

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

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?

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?

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.

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

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

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

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

Criminal Code

s 241. Every one who

a. counsels a person to commit suicide, or

b. 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.

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.


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


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

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

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

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

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

• 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”.

“There are some

patients we

cannot help, there

are none we

cannot harm”

Arthur L. Bloomfield, Professor of Medicine, Stanford

University, 1888-1962

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

• 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

• 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

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

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.


25(1) Where a child has been apprehended, an agency

c) may authorize the provision of medical or dental

treatment for the child if

(i) The treatment is recommended by a duly qualified

medical practitioner or dentist,

(ii) The consent of a parent or guardian of the child

would otherwise be required, and

(iii)No parent or guardian of the child is available to

consent to the treatment


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.

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.

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

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

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.

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

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”

“That day, my tears flowed non-stop. Nothing can

properly describe how I was feeling and still feel

today. I could liken it to being raped and violated but

even those words do not express my feelings strong

enough.”

Rotaru v. VGH ICU 2008 BCSC 318

• Admitted to VGH with right leg ischemia due to

popliteal artery occlusion

• Post-op developed perforated sigmoid colon d/t

ischemic bowel

• ICU December 5 to 16, 2007 for sepsis

• Subsequent GI bleeding, ischemic colitis, TPN

dependent, renal failure

• February 3, 2008 Code blue, brought back to ICU

• Vascular and Nephrology consulting to ICU

Rotaru v. VGH ICU

Meetings with family week of February 4, 2008:

• no operative solution for Mrs. Priboi’s global vascular

disease

• Therapy to optimize renal function unsuccessful and

detrimental to cardiac/respiratory function

• TPN, digoxin, albumin and lasix causing further

complications

• Dialysis not an option d/t underlying disease

processes

Rotaru v. VGH ICU

Petition for an Order that:

a) The medical staff of the VGH ICU continue to provide life

support to Alecsandrina Priboi – their patient, in order to

sustain life;

b) The medical staff of the VGH ICU and any other medical

section Alecsandrina Prioboi may be transferred to, provide

this patient, effective immediately, with medication the

patient has been on before February 3, 2008 ICU transfer,

medication vital to her life and well being and such staff

change their death inducing actions to maintaining and

supporting this patient’s life.

Argument of the Petitioner

• She was told by the admitting ICU physician that her

mother would continue to be given the medical care

she had been receiving all along

• The next ICU physician discontinued this medical

care without her or the family’s consent

• The ICU physician advised that the only thing that

would make him change his mind was a court order

Argument of the Defendant Doctors

• The court does not have the power to make the

Order as requested

• Even if such an Order could be made, the return of

the previous medication and treatment would be

counter-productive and/or of no effect and other than

in accordance with their ethical obligations

• Dialysis would not change the patient’s outcome, as

her renal failure is a consequence of systemic failure

Decision

…this decision does not involve the consideration of

whether medical advisors can be prohibited from

withdrawing forms of treatment of life-support

systems.

…the Petition raises the issue of whether, after certain

treatment has ceased, the Court is in a position to

order that the treatment resume where the medical

advisors state that it is in their bona fide clinical

judgment that the former treatment is contra-

indicated.

Law & Ethics

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