Substitute decision making and code status at end of life: Patient’s loss of capacity highlights complexity

Isaac Siemens

doi:10.46747/cfp.6810743

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Ontario Consent and Capacity Board is underused when Substitute Decision Makers ignore patients’ previously expressed wishes
Christopher R. Foerster

Published on: 26 November 2022
RE: Substitute decision making and code status at end of life
William E. Osmun

Published on: 27 October 2022

Published on: (26 November 2022)
Page navigation anchor for Ontario Consent and Capacity Board is underused when Substitute Decision Makers ignore patients’ previously expressed wishes
Ontario Consent and Capacity Board is underused when Substitute Decision Makers ignore patients’ previously expressed wishes
Christopher R. Foerster, Palliative Care and Hospitalist Physician, Woodstock Hospital
I read with great interest Dr. Siemens’ case report describing a challenging case of a substitute decision maker (SDM) making a decision on behalf of an incapable patient that went against that person’s previously expressed wishes. While the case is unquestionably socially complex with respect to communication with the SDM, the appropriate response to this situation in Ontario is far less complex.

As Dr. Siemens mentions, in Ontario the Consent and Capacity Board (CCB) is available to physicians proposing treatment when an SDM is making a decision against the patient’s previously expressed wishes. Mr. B’s case was appropriate for the CCB and referral should have been made by the physicians involved in his care. CCB referral likely offered the best chance at preventing Mr. B from undergoing unwanted interventions at end-of-life and could have been done without the support of the hospital bioethics or legal teams. It would be of interest to readers to better understand the perceived barriers to pursuing this.

To prevent similar situations from arising, Mr. B’s case should also remind us that if the SDM by hierarchy is expected to not act within the patient’s previously expressed wishes that we should suggest that the patient specify in advance a Power of Attorney for Personal Care who would respect their wishes. This is a straightforward process in Ontario that does not require a lawyer.

Competing Interests: None declared.
Published on: (27 October 2022)
Page navigation anchor for RE: Substitute decision making and code status at end of life
RE: Substitute decision making and code status at end of life
William E. Osmun, retired family physician, none
It was with dismay that I read "Substitue decision making and code status at end of life".

This patient had made his intentions known several times and had a written DNR-DNI with a community DNR form. Despite this, the medical team chose to go against his express wishes with the excuse that his substitute decision maker had over ruled his uncle's express wishes.

In a previous case, Malette v. Shulman, (1990) 37 O.A.C. 281 (CA), a physician was found guilty of assault on a Jehovah's Witness patient for administering blood despite her express wishes found in a card on her wallet.

So how was this not an assault for going against the express wishes of the patient in providing futile treatment? Instead of a peaceful death, this patient suffered a traumatic one.

This was not a case of providing medical care but a case of moral cowardice where the medical team hid behind the hospital bureaucracy rather than doing what was ethically right.

Competing Interests: None declared.