The College of Physicians and Surgeons (the CPSO) recently amended its policy “Planning for and Providing Quality End-of-Life Care” in light of a decision of the Ontario Superior Court in a medical malpractice lawsuit.

In the case of Wawrzyniak v. Livingstone, the plaintiff, who was the substitute decision-maker (SDM) for her father, alleged her father’s physicians failed to meet an acceptable standard of care when they made the decision to write a do not resuscitate (DNR) order without her consent in September, 2008. In August, 2019, her lawsuit was dismissed and no appeal is being taken. You may read the decision here.

Facts

Ms. W’s father, Douglas DeGuerre, age 88, had been transferred from long term care to acute care with multiple co-morbidities including diabetes, severe cardiac and respiratory disease, severe vascular ischemia, gangrene, multiple open necrotic lesions and end-stage renal disease. He was seen by vascular and orthopedic surgeons, neither of whom had any treatment to offer that would be of any benefit. He was admitted to internal medicine for supportive treatment of pain and multiorgan failure. His attending physician expected a slow decline toward death in spite of the treatments provided.

As usual, the Hospital [Sunnybrook] had a policy by which a standing order existed to initiate CPR in case of cardiac or respiratory arrest, unless a specific instruction was given to the contrary. There were several discussions with Ms. W, who was insistent that her father be deemed “full code” and refused palliative care. On day seven of his admission, Mr. DeGuerre underwent bilateral amputation of his lower limbs for the purpose of pain management, spent a few days in the ICU post-operatively, was stabilized and transferred back to the medical ward with daily follow-up from the rapid response team.

On September 22, 2008, both Dr. L (the most responsible physician) and Dr. C (a critical care physician on the rapid response team) separately assessed Mr. DeGuerre and determined that he was close to death. He was moribund, cachectic, confused, unable to clear his own secretions, with uncontrollable pain and signs of spreading gangrene. The physicians determined that he would not benefit from aggressive ICU care or CPR, which would only increase his suffering. A third intensitivist agreed. They therefore co-signed a DNR order in his chart. Dr. C attempted to contact Ms. W immediately thereafter by phone to inform her, but was unsuccessful in reaching her.

Later that afternoon, Mr. DeGuerre’s condition abruptly deteriorated as Ms. W was visiting and he went into respiratory distress. At this time, it was Ms. W’s understanding that pursuant to her direction, her father would be treated with a “full code” resuscitation. Ms. W demanded that all resuscitative efforts be made. Dr. C arrived shortly thereafter and advised Ms. W that her father’s death was inevitable and CPR would only lead to greater pain and suffering. Ms. W was very upset that CPR was not administered and attempted to assist her father herself. Her efforts were unsuccessful and Mr. DeGuerre died. The circumstances surrounding Mr. DeGuerre’s death were extremely upsetting for everyone involved.

Ms. W, among other things, lodged complaints to the CPSO about the physicians, and in 2010, commenced her lawsuit. She agreed to a dismissal of the case as against the Hospital shortly before trial early in 2019.

Discussion

The Court dismissed Ms. W’s case. The Court found that the physicians met the standard of care in their assessments of Mr. DeGuerre. The Court also found that writing a DNR order in these particular circumstances did not constitute a “treatment” decision within the meaning of the Health Care Consent Act (HCCA). In the circumstances, the physicians did not require consent to write the DNR order.

Treatment of CPSO and Hospital Policies

In arriving at this decision, the Court considered policies from both Sunnybrook and the CPSO. Both policies identified three levels of benefit from life-support treatment, one of which was “almost certainly will not benefit”. The CPSO policy indicated that when it is clear from available evidence that treatment will almost certainly not be of benefit or may be harmful to the patient, the physician should refrain from beginning or maintaining such treatment. Further, physicians are not obliged to provide treatments that will almost certainly not be of benefit to the patient. The Sunnybrook policy was consistent with the CPSO policy in this respect.

The Court found that both of these policies informed the standard of care applicable to the physicians as at September 22, 2008. The Court accepted expert evidence that the physicians met the standard of care in determining that Mr. DeGuerre’s death was imminent and that the administration of CPR would almost certainly not benefit him, and therefore, that they met the standard of care in assessing Mr. DeGuerre.

DNR Order Not “Treatment” in These Circumstances

The Court also closely examined the physicians’ DNR order in this case referable to how the term “treatment” is to be understood within the meaning of the HCCA. The Court determined that this decision not to offer or administer CPR did not constitute “treatment”.

In so deciding, the Court distinguished this situation from the Supreme Court of Canada 2013 Rasouli case, which determined that in Ontario, the HCCA required consent for the withdrawal of life support from a comatose patient.

The Court acknowledged that a person’s health condition during the course of medical care for a serious illness is likely to change over time and a physician must adjust treatment options that may be offered to that person to reflect his or her clinical judgment. This includes deciding that a treatment that had been offered as part of a plan of treatment will almost certainly not benefit a patient, and making the decision that this treatment will no longer be offered.

The Court determined that the HCCA did not apply to a situation where a treatment has not been proposed by a physician, or is no longer being proposed or offered. When the DNR order was written in this case, the physicians were no longer proposing CPR as a treatment option. It was simply a medical assessment, based on clinical judgment. To interpret the HCCA such that the physicians required Ms. W’s consent in the circumstances would significantly diminish the role of a physician in exercising clinical judgment and making the necessary medical decision about whether a given treatment would be medically inappropriate for a patient, or whether it should be proposed.

While the Court acknowledged that the standard of care did call for physicians to attempt to have a discussion with a patient/SDM before writing a DNR order in these circumstances (to notify, not to seek consent), expert evidence was accepted that in 2008, the standard of care did not require this to occur before the order was written, particularly in light of the paramount duty not to cause harm to the patient.

No Duty of Care owed to Ms. W either as SDM or as family member.

Ms. W advanced a claim for negligent infliction of nervous shock, and argued that the physicians owed her an independent duty of care, not only as her father’s SDM, but as a close family member. The Court rejected this submission, finding that the recognition of such a duty of care owed by a physician to a family member or SDM of an incapable patient would have the potential to put the physician in a conflict of interest. The wishes of the family member or SDM may not align with the physician’s medical opinion of what is in the patient’s best interests. Imposing this duty of care may influence a physician to act in ways which he or she would not otherwise act, in order to balance these competing duties of care, resulting in the patient being put at risk of harm.

The CPSO Policy 

The Court was examining the standard of care as it was in 2008, informed by the CPSO policy at that time, which left room for a physician’s clinical judgment with respect to futility and harm to “trump” a demand for aggressive interventions such as CPR.

The CPSO was concerned about the repercussions of the Rasouli decision and Health Professions Appeal and Review Board decisions in this case, and amended its policy in 2015, so as to prohibit the writing of a no-CPR order pending notification of the patient/SDM and the resolution of any conflict resolution processes. If an arrest occurred while the conflict resolution process was still underway, the CPSO required that CPR be performed, regardless of the absence of benefit and the harm it caused. The 2016 amendment added the phrase, “unless the patient’s condition will prevent the intended physiologic goals of CPR (i.e., providing oxygenated blood flow to the heart and brain) from being achieved”.

There was increasing concern that because of a strict interpretation of this proviso, CPR was becoming the inevitable default, forcing health practitioners to act contrary to their standard of care, for fear of reprisal from the College, to the detriment of patients and causing moral distress to providers.

In response to the more recent Court’s decision in the Wawryzniak case, as of September 20, 2019, the CPSO has revised this to read: “If the patient experiences cardiac or respiratory arrest while conflict resolution is underway regarding the writing of a no-CPR order, physicians must provide all resuscitative efforts required by the standard of care, which may include CPR”. You may read the new policy here.

In explanatory notes, the College indicates that while the revised policy continues to prohibit the writing of a no-CPR order pending notification (not consent) and while conflict resolution, if necessary, is underway, the policy now allows for a bedside determination to be made regarding the resuscitative measures that are warranted, in the moment, in accordance with the standard of care.

It is commonly understood in 2008 and still today, that in circumstances where an intervention such as CPR almost certainly will not benefit, and/or will only cause harm, it lies outside the standard of care to perform it. In that circumstance, consent is not required for a no-CPR order. Today, however, “consensus”, must be attempted right up to the moment of an arrest.

Takeaway

Based on the current newly amended CPSO policy, if the same fact scenario presented itself today, the physicians would potentially be found to have contravened CPSO policy in having written the DNR order before they made successful contact with Ms. W to inform her and allowed her an opportunity to object and engage in a conflict resolution process. The bedside decision of the physician not to have CPR performed, however, would have complied with the policy. The outcome for the patient and for his daughter, therefore, would have been exactly the same. The stress caused to frontline staff at the bedside, however, without a written order, will arguably be intensified.

The CPSO will be undertaking a further more comprehensive review of its end of life policy in 2020. It is hoped that input on behalf of hospitals, nurses and respiratory therapists who deal with these types of cases on a daily basis may be part of that process.