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LIFE-SUSTAINING TECHNOLOGIES AND THE ELDERLY LEGAL ISSUES CANADA HOLLY DUGAN JOHNS HOPKINS CENTER ON AGING
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-1 -CANADA FINANCING OF HEALTH CARE Federal-Provincial Roles In 1867, all powers for the peace, order and good government were assigned to the Government of Canada by an act of the British Parliament, the British North America Act. A list of powers was assigned exclusively to the ten Provinces. Neither health nor welfare was explicitly mentioned. However, hospitals, asylums and charitable institutions in and for a Province fall under Provincial responsibility. Separate Federal responsibility was assumed for quarantine and marine hospitals. Hatcher (1) attributes the continued Provincial power over and responsibility for health services to Quebeguois separatism which from 1800 on fought for religious liberty, use of the French language a~d the assimilation of French civil law into the Quebec Act. From 1900 on Quebec performed, according to Hatcher, the function of the o.s. solid South" to the Liberal Party in Canada. On only four occasions was a government voted in without the support of the Quebec Members of Parliament. Concern with possible infringements on Provincial rights, a notion inspired by the Quebequois, carried forward to 1941 when efforts failed to pass national health legislation which was similar to the u. s. Medicare model. As a result, conditional Federal grants for Provincial health insurance were
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-2 -proposed but disagreement on financing formulae and tax jurisdictions likewise doomed this attempt. In 1948 the Government of Canada (GOC) introduced a series of Grants-in-Aid which were earmarked for hospital construction, traditional public health services, research and training. Most of these required matching funds and were based on priorities defined by GOC which set the stage for continued involvement of the Dominion in Provincial standards for health services, drugs, biologicals and various policy issues such as certification of need" for new hospital construction. In the meantime, the Provinces began to introduce their own health insurance programs, Saskatchewan at the fore (in 1947) while, at the same time, private health insurance plans began to crop up. In 1955 Ontario asked for Federal support to introduce a ~niversal health insurance program and in 1958 the Dominion passed the Hospital Insurance and Djagnostic Services Act (2) offering to reimburse any Province for one half the cost of hospital insurance programs to include universal coverage, comprehensive benefits", uniform accounting practices and statistical and fiscal reports to the Federal Government. comprehensive benefits provided for short term inpatient and all outpatient care exclusive of psychiatric hospitals, TB sanitoria, custodial care and nursing homes. All the Provinces accepted the Grants by 1958 except Quebec which did not accept Federal support until 1961. The principal Federal agency in the field of health care is the Department of National Health and Welfare which assists
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-3 -Provincial health departments and deals with various health matters outside the range of the Provinces. The Health Protection Branch of the Government of Canada concerns itself with adequate standards in foods, drugs, cosmetics and medical devices, as well as environmental factors and control of communicable diseases. The Health Services and Promotion Branch is the branch which is concerned with the administration of federal aspects of provincial hospitals, insurance programs, research and training grants. Yet another branch, the Medical Services Branch, provides medical and health services for Indians and residents of the Yukon and the Northwest Territories as well as quarantine, immigration. medical service and advises on health care for those in civil aviation. In 1977 the method of reimbursing for SO per cent of the cost of insured services was renegotiated to allow for reimbursement for alternatives to acute hospital care and to align Federal expenditure with gross national product and the fiscal resources of individual Provinces (3). GOC began making additional per capita cash contributions toward the cost of nursing home intermediate care, adult residential care, converted mental hospitals, health aspects of home care and ambulatory health care services. The Canadian Assistance Plan provides Federal funds for SO per cent of health care services for extended care not covered by the national health insurance programs and for persons of proved financial need.
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-4 -Under the Hospital Insurance and Diagnostic Services Act, a Federal-provincial agreement, all residencs are provided on a pre-payment or tax-financed basis standard-ward accomodation and normal hospital services. These agreements are supplemented or extended_by thv individual provinces such as Nova Scotia covering mental health services. Ontario provides ambulance service, physiotherapy and long term care. Manitoba covers extended care, personal care and hostel care and Alberta provides nursing home care.(4) Payment of premiums for Federal-Provincial Hospital Insurance is required in Ontario and Alberta for families able to pay. The financing of insured hospital services in Newfoundland, Prince Edward Island, New Brunswick, Saskatchewan, Manitoba and the two territories is entirely from general tax revenues. Nova Scotia supplements general revenues with a sales tax. Quebec has a surcharge on income tax and an employer-paid tax on wages and salaries which helps to finance hospital insurance programs. Ontario resident~ are required to pay an annual premium. In Alberta an annual premium is levied on single persons and families of two or more persons. In Alberta, British Columbia and Quebec patients are charged authorized fees at the time of service which are deductible from provincial payments to hospitals. HEALTH CARE FINANCING FOR THE ELDERLY The responsibility for comprehensive health care for the elderly rests with the provinces (5). In those provinces where health care provision is based on the payment of a premium (e.g.
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-5 -Ontario) the aged pay no premium. UniveLsal long term care benefits based on functional impairment are provided by most Canadian provinces. There is no means test for these benefits. In provinces where copayments are levied, these are set at a rate designed to eave even the poorest pensioner with a small disposable income" (6). For instance, in Ontario in 1984 the fixed room charge for nursing home care was $15.68 per day. According to Kane and Kane (6), this left $96 per month disposable income for those persons entirely reliant on government income maintenance. FOREGOING TREATMENT CONSENT Part IV of the Canadian Criminal Code outlines Offenses Against the Person in which it is stated that treatment performed without a legally effective consent constitutes an assault (7). Bowever in most cases authorization to treat is granted under provincial or mental health legislation (8). Canadian Common Law traditionally presumes the only justification for medical intervention to be consent, therapeutic benefit, appropriate medical skills and knowledge and lawful justification. The latter expression applies to some prohibited procedures such as organ transplants. Ho~ever Sections 45 and 198 of Part I of the Canadian Criminal Code effectively make surgical and medical treatment legally valid provided that the.doctor has reasonable skill and knowledge, exercises reasonable care, that it is reasonable to perform the
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-6 -operation and that it is for the benefit of the patient (9). Section 198 of the Criminal Code reads : I Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in doing so. LIMITATIONS Limitations on an individual's right to forego treatment are implicit in the Canadian Criminal Code Section 199 which states Every one who undertakes to do an act is under alegal duty to do it if an omission to do the act is or may be dangerous to life. thus requiring everyone who undertakes to administer surgical or medical treatment to continue it if omission might endanger the life of the patient. The fundamental right of an individual to the security of his person was said to be the first right of English Law and in 1960 was declared the first right of the Canadian Bill of Rights. It means not only the protection of one's physical integrity but the provision of necessaries for its support. The Criminal Code upholds an individual's right to refuse treatment with some exceptions such as compulsory treatment for alcohol or drug abuse (10), the ordering of a mental examination
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-7 -(11), ordering the custody of insane persons (12), and the mentally ill (13). The right to refuse intrusion on one's body has been upheld in case law (14). Nonetheless, denial of the right to refuse when refusal may result in death is based on the priority of the preservation of life over the au~onomy of the individual (15)." In an article entitled "The Right to Refuse Treatment: Commonwealth Development and Issues authors Gordon and Verdun-Jones(S) state that the recent (1982) Canadian Charter of Rights and Freedoms could mark the rebirth of judicial activism although they predict that the Canadian Supreme Court will be conservative in their initial approach to cases involving violations of these rights and freedoms. Gordon mentions two cases which illustrate the kind of negligence involved in treating without informed consent, Reible v. Highes (1980) 114 DLR (3rd)! and Hopp v. Lepp (1980) 112 DLR (3rd)67. Gordon and Verdun-Jones claim that the right co refuse treatment in mental health settings is virtually non-existent in Canada, Australia, New Zealand, England and Scotland. They quote I. Kennedy."t'riminal Law Review 217 (1976) as saying "the right to self-determination in medical treatment situations, when this means refusing medical care, is confined within ill defined bonds. In the case of psychiatric treatment without the patient's consent, requests to treat can be made to the Regional Review Boad under Section 35 of the Mental Health Act. A similar provision under Section 46 of the Nova Scotia Eospttal~ Act ~tipulates that no person admitted to a hospital shall
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': -8 -l receive treatment unless he or she consent to such treatment excepting those nincapable of consenting. Incapacity to consent is assessed by the attending psychiatrist by virtue of Section 44 of the same Act (8). In the 1982 Canadian Law Reform Commission paper, the current legal dilemma with regard to refusal of treatment is clearly summarized. present law, because of the distinctions which it makes between the act and omission and becuase in theory it requires the continuation of any treatment undertaken if its interruption constitutes a threat to life, clearly promotes certain biases in favour of heroic or aggressive treatment, or at least creates a legal climate likely to encourage .this approach (15). For this reason there has been a tightening of policy at the provincial, local and institutional levels. SUICIDE According to the Canadian Law Review Commission Working Paper 128 entitled Euthanasia, etc. (15), attempted suicide has recently been decriminalized in Canada. It might be useful to separate suicide into two concepts, that of commission and omission. Commission of the act (e.g., shooting, hanging or poisoning oneself) is not a criminal offense, suicide having been recently decriminalized in Canada (15). Suicide by omission (the refusal of treatment) is ostensibly protected under section 244 of the Criminal Code which states
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9 -A person commits an assault when without the consent of another person or with consent that is obtained by f~aud, be applies force intentionally to the person of the other unconsented medical treatment is thereby illegal except in emergencies and every medical interference with the ody of another is an assault. (17) Although consent must be freely given there is no mention in the law of informed consent. In spite of cases which recognize the right to refuse treatment (14) and those supporting the individual's right to make unreasonable or foolish choices (18), the Criminal Code is not explicit in respect to parties to a suicide resulting from omission (termination) of treatment. INCOMPETENCE The earlier discussion of limitations on the rights of mental patients suggests that the incompetent patient falls under local or provincial jurisdiction and even institutional authority as in the Dependent Adults Act of Alberta. The patient must have the ability to understand that to which he or she consents. The patient must have at least a general perception of what i-s happening and what might result. In the case of incapacity to make treatment decisions, the disability is a legal one in the case of minors and a mental one in the case of the elderly. It is in the latter instance a subjective test. If the first question is whether the patient is competent, the second question is who should assess his
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10 -competence, and even more important who should decide for him be he judged incompetent. Working Paper 26 recommends that "the ultimate finding of incompetence should be made by a court and states that in most provincial legislations this is indeed the case (15). The Law Reform Commission recommended the use of administrative boards to decide what is in the best interest of the incompetent patient in regard to cessation of treatment suggesting that the family's interests and those of the patient are not always in accord. In practice hospitals are increasingly adopting policies such as the Massachusetts General Hospital's optimum Care for Hopelessly Ill Patients" (19). In Canada, the very general Joint Statement on Terminal Illness" is the product of a working party of the Canadian Nurses Association, the Canadian Medical Association and the Canadian Hospital Association in cooperation with the Candian Bar Association. It is based on the Canadian Medical Association's "Statement on Terminal Illness (20) and was drafted with the advice of the Catholic Health Association and the Law Reform Commission of Canada. This statement sets forth policy and procedures for deciding whether compassionate palliative care only" is called for in which case a "no resuscitation" order is placed on the patient's record. This statement appears to indicate surrogate decision making for the incompetent patient would involve the attending physician, nursing staff and the family. A draft of the Misericordia Hospital (Alberta) Policy on
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-11 -Resuscitative Interventions for the Terminally Ill (November, 1984) based on the above mentioned Joint Statement calls for a procedure of clear communication between patient, family and clinical staff, documentation in patient records and consultation with the Bioethics Consultative Services Group. In respect to formal legislation at the provincial level, there is provision for guardianships in the case of incompetence. The appointment of a guardian or publi~ guardian is by court order (21). A forthcoming book on this subject by Robert Gordon, Simon Verdun-Jones (Simon Fraser University) and Don Macoougall (University of British Columbia) will set out the central problem in this area of the law (self-determination v. paternalistic intervention). (current status of living will legislation in Canada to be added) LIABILITY According to the Law Reform Commission's Working Paper No. 28 (16), there is no instance in case law of a doctor's being convicted of terminating a patient's life with drugs. Likewise, no case of withdrawing treatment from a dying patient has ever led to conviction. This lack of legal precedent indicates that there is a certain dependence on the disposition of the Crown which is difficult to predict. It is not inconceivable that provisions in the present Criminal Code of Canada could be interpreted to imply criminal liability in cases of cessation of treatment.
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12 -However, under Part I in the general part of the Criminal codo, acts which may be criminal are protected if they offer a benefit to society at large. In the case of medical treatment, these acts fall into the category of "protection of persons in authority. However, the concept of authority in the Crininal Code is not entirely applicable to doctor-patient relationships, according to the Law Reform Commission researchers. In Working Paper No. 26(15), the doctor is described as a person who has no duty to protect others unless he has directly or indirectly undertaken to do so. The Criminal Code, section 45, states that every one is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if a) the operation is performed with reasonable care and skill, and b) it is reasonable to perform the operation, having regard to the state of health of the person ac the time the operation is performed and to all the circumstances of the case. Under the law, a further offense is the failure to provide the necessaries of life to someone under one's charge if failure to do so endangers life and, in addition, to continue to treat unless by the patient's consent and in a suitable time frame a doctor may withdraw from the case. The causing of bodily harm with intent is an offense regardless of consent and the failure to perform a duty which results in death or bodily injury is criminal negligence. In Working Paper 26, the authors
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13 -state that murder or manslaughter rarely apply to medical treatment except in the case of cessation of life-saving treatment and the decision not to administer life-saving treatment. (See Section 199 of the Criminal Code cited above.) The Law Reform Commission on Medical Treatment and the Law (15) suggests that the administration of treatment continue to be regulated by the Criminal Code but be distinguished from certain other acts of application of force which are considered to be criminal. Further development of hospital policy on compassionate and palliative care only and local legislation on the right to refuse treatment, living wills and death with dignity may affect the issue of physician liability but it is doubtful that the exculpation will be complete in all cases. INFLUENCE OF RELIGION Predominant religions in Canada are Anglican (Protestant) and Catholic from the British and French settlers, respectively. Keyserlingk (22) argues a basic agreement between Protestant and Catholic viewpoints with respect to the sanctity of life principle. Be cites Norman St. John-Stevas (23) and Paul Ramsey (24) to support the vitalist point of view. The so-called vitalist perspective is that control over human destiny ought to be left to God or nature and that no matter what the condition of the patient, it would be contrary to the sanctity of life principle to preserve it or interfere with it"(22).
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14 -Beyond the vitalist viewpoint, however, is the concept of quality of life which sparks continual and irreconcilable debate. The current tendency toward decisions regarding the quality of life marks a paradigmatic shift that is not yet universally accepted. Evidence of the trend can be seen in the statements below. Pope Pius XII (1957): aut normally one is held to use only ordinary means according to circumstances of persons, places, times and culture --that is to say, means that do not involve any grave burden for oneself or another. A more strict obligation would be too burdensome for most men and would render the attainment of the higher, more important good too difficult. Prom the Medico-Moreal Guide of Canadian (Roman Catholic) Bishops in 1970: (Art. 9) Every human being has a right to live, and every effort should be made to protect that right. (A~t. 10) However, man is not bound to have recourse to every means to prolong life. Neither the patient nor the doctor is obligated to resort to involved techniques for artificial survival." From Ethical and Religious Directives for (U.S.) Catholic Health Facilities in 1971: (Art. 28) "Euthanasia ('mercy killing') in all its forms is forbidden. The failure to supply the ordinary means of preserving life is equivalent to euthanasia~ However,
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15 -neither the physician nor the patient is obligated to the use of extraordinary means. From the American Medical Association in 1973: The cessation of the employment of extraordinary means to prolong the life of the body when there is irrefutable evidence that death is imminent is the decision of the patient and/or his immediate family. Prom the Canadian Medical Association in 1975: (Art. 18) An ethical physician will allow death to occur with dignity and comfort wren death of the body appears to be inevitable; (Art. 1.9) An ethical physician may support the body when clinical death of the brain has occurred, but need not prolong life by unusual or heroic means." One conclusion that may be drawn here ,is that while religion may influence individuals, it no longer appears to have significant impact on legislative decisions or the policies of institutions. However, the full impact of the Catholic Archdiocese Document on War and. Peace of November 1983 has not yet been felt. Also, the work of Cardinal Bernardin of Chicago will no doubt have longreaching effects in support of consistent ethics of life and quality of life. Likewise, the influence of fundamentalist and right-to-life views currently being expressed in the U.S. remains to be assessed.
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16 -REFERENCES (1) Batcher, Gordon s. Qniyersal Free Health care in Canada, 1947-77~ 1981. u. w. Dept. of Health and Buman Services. (2) Canada, Statutes. 1957 Eliz. 2, Chapter 28, 5-6. Canada Hospital Insurance and Diagnostic Services Act. (3) Canada, Statutes. 1976 Eliz. 2. Capter 107. An Act to Amend the Medical Care Act~ (Bill C-68). (4) Canada Health and Welfare. 1983. Cultural, Public and Information Programs Bureau, Ottawa, Canada. (5) Charron, Monique. Long-Term care Needs of Canada's Elderly. in ISSA Studies and Research 21:1984. Geneva (6) Kane, R. A. and Kane, R. L. 1985. The Feasibility of Oniversal Long-Term-Care Benefits: Ideas from Canada. New Engl. J. of Med. 312(21):1357-1364. (7) Law Reform Commission of Canada. consent to Medical care. by Margaret A. Somerville. Ottawa. 1980. (8) Gordon, Robert and Verdun-Jones, Simon N. 1983. The Right to Refuse Treatment: Commonwealth Development and Issues. Internat'l, J, of Law & Psych. ~:57-73. (9) Criminal Code, Section 45: Every one is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if a. the operation is performed with reasonable care and skill, and b. it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case. (10) Criminal Code, Section 234. (11) Criminal Code, Sections 465, 543, 608.2, 738(5), 738(6). (12) Criminal Code, Section 545. (13) Criminal Code, Section 546. (14) Beausoleil v. La Communaute de Soeurs de la Charite de la Providence (1965] 13R. 37; Villemure v. l'Bopital Notre-Dame and Turcot [1973] s.c.R. 716. (15) Law Reform Commission of Canada. Medical Treatment and Criminal Law. Working Paper No. 26. Ottawa. 1980
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17 REFERENCES, continued (16) Law Reform Commission of Canada. Euthanasia, Aiding suicide and Cessation of Treatment. Working Paper No. 28. Ottawa. 1982. (17) Laporte v. Laganiere (1972) lSC.R.N.S. 357 at 361 (QOE. Q.B.) (18) Smith v. Aukland Hospital Board (1965] N.Z.L.R. 191 at 219; Mulloy v. Bop Sang (1935] lW.W.R. 714. (19) Culliton, Barbara J. Helping the Dying Die: Two Harvard Hospitals Go Public with Policies Science 193, 17 Sept. 1976, pp. 1105-6. (20) Canadian Medical Association (1975): (21) (22) (23) (24) (25) (Art. 18) An ethical physician will allow death to occur with dignity and comfort when death of the body appears to be inevitable; By court order upon application in British Columbia and Alberta; by court order in Nova Scotia, Prince Edward Island, Newfoundland; by court order with provision for trial by jury in Ontario.Law Reform Commission of Canada. sanctity of Life or ouality of Life. by Edw. w. Keyserlingk. Ottawa. 1979. Law Reform Commission of Canada. sanctity of Life or oality of Life. by Edward w. Keyserlingk. Ottawa. 1979. St.John-Stevas, Norman. The Right to Lifef Holt, Rinehart and Winston, New York. 1964. Ramsey, Paul, The Morality of Abortion, in John Rachels Ced.), Moral Problems; A co11ection of Philosophical Essays, Harper & Row, NY 1971. Pope Pius XII, AAS 49 (1957) 1031-32.
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