Report on Withholding or Withdrawing
Life Sustaining Medical Treatment

Executive Summary

A. Introduction

In June 2002, the Manitoba Law Reform Commission released a discussion paper entitled Withholding or Withdrawing Life Sustaining Treatment, which is appended to the Report. It explores a range of issues relating to end of life medical decision-making including: the power of modern technology to prolong life beyond its natural end; the propriety of providing life sustaining medical treatment which offers no therapeutic benefit and may threaten additional harm; the competing interests of patients, physicians and other stakeholders; the allocation of ultimate authority for making decisions to withhold or withdraw life sustaining medical treatment; and the principles and procedures that should guide the decision making process.

The Report outlines the policies and procedures that should guide end of life decision making and contains our recommendations on how best to implement that protocol.

B. Principles and Policies

The Commission believes that there are certain fundamental principles and policies that should be reflected in the rules or framework controlling the withholding or withdrawal of life sustaining medical treatment.

1. There must be a uniform approach and process to withholding or withdrawing life sustaining medical treatment across the province and in all health care institutions.
   
   
2. The uniform approach must apply to all decisions to withhold or withdraw life sustaining medical treatment whether in the form of Do-Not-Resuscitate (DNR) orders or other decisions.
   
   
3. The uniform approach must treat all citizens fairly and equitably and provide equal access to medically appropriate medical care to all without bias or favour. In particular equal treatment must extend to the elderly and persons with disabilities. Neither of those circumstances is a sign of terminal illness or impending death.
   
   
4. The decision making process must be clear and transparent and must be communicated clearly not only to the patient and his or her family but also to the public in order to facilitate a broad understanding of how these decisions are made.
   
   
5. Emphasis must be placed on the process for decision making rather than the formulation of specific rules which would purport to dictate the decision. The process must be designed to facilitate an agreement between the physician and the patient or his or her substitute decision maker. It should have the following features:
   • the process should be instigated by the attending physician;
   • the process should begin at the earliest appropriate time to provide an opportunity for considered and informed discussion and decision-making;
   • full and complete information must be provided by the attending physician to the patient/substitute decision maker about the nature of the patient's condition, prognosis, treatment options (including those that the physician may not favour) and the expected benefit or harm of those options;
   • a full and complete explanation by the attending physician why he or she believes that withholding or withdrawal of life sustaining medical treatment is medically appropriate;
   • a full and complete discussion between the attending physician and the patient of his or her personal, cultural circumstances and spiritual beliefs and concerns insofar as they are relevant to the decision at hand and welcomed by the patient;
   • a full and complete discussion between the attending physician and the patient of his or her wishes, concerns, expectations and preferred treatment options including consideration of a time limited trial of therapy;
   • a full consultation with the family of the patient unless such communication is prevented for some documented reason such as impracticality, breach of privacy or confidence;
   • full information and assurances to the patient that a withdrawing of withholding of life sustaining medical treatment does not amount to an abandonment of care and compassion and that palliative treatment will be provided.
   
   
6. Where a consensus cannot be reached between the physician and the patient or substitute decision maker about withholding or withdrawing life sustaining medical treatment resort should be had to other available informal dispute resolution procedures. Institutional facilitators and mediators such as ethicists, pastoral care workers and other qualified persons can assist in finding a consensus between the physician and the patient or substitute decision maker. In some circumstances, independent external mediators may be helpful. Every reasonable effort should be used to secure agreement in as informal and sensitive a process as possible.
   
   
7. Where there is disagreement between the physician and the patient or substitute decision maker on the appropriate course of action, the patient must be given an opportunity to secure an independent second opinion from a physician who is not a member of the patient's health care team and/or request that his or her care be transferred to another willing physician.
   
   
8. Where all preceding measures have failed to produce an agreement, the physician may, after an appropriate notice period, withhold or withdraw life sustaining medical treatment where such treatment would be medically inappropriate.
   
   
9. We do not favour a right to indefinite life sustaining medical treatment. The appeal of autonomous decision making and personal control of all end of life medical decision making is initially attractive but an unfettered right to life sustaining treatment may result in unreasonable demands being made for indefinite inappropriate medical treatment.
   
   
10. Final resort to the courts will remain available where the procedures designed to achieve consensus have irretrievably broken down.

C. Implementation

The Commission does not favour a legislative implementation of these principles. Its preference is to see them embodied in a statement or by-law of the College of Physicians and Surgeons of Manitoba. It has, indeed, been drawn to our attention that the College is developing a new protocol for end of life decision making and we have studied its sample Proposed Policy on Withholding or Withdrawing Life-sustaining Treatment. The policy reflects many of the principles for end of life decision making that we have described. We have therefore devoted much time and attention to that sample policy and have recommended changes that would further emphasize and promote our views. We also recommend that other health care institutions, agencies, associations and bodies involved in delivering health care in Manitoba should adopt the Policy of the College once amended to reflect our advice. We urge them to use the Policy as a template for their own protocols and procedures.

We envisage a cohesive and integrated approach to maximize consensus decision making without imposing an obligation on physicians to provide inappropriate medical care. Such an approach, coupled with an extensive program of public education and awareness of the end of life decision making process, will serve the citizens of Manitoba well.

Report #109,
December, 2003