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A Proposal for Access to Treatment Contrary to Clinical Judgment

42 Pages Posted: 20 Sep 2017 Last revised: 23 Sep 2017

Hilary Young

University of New Brunswick - Fredericton - Faculty of Law

Date Written: September 1, 2017

Abstract

Remarkably, it is unclear in much of Canada whether physicians must provide treatment contrary to their clinical judgment when it is requested by patients. The Supreme Court held in Cuthbertson v Rasouli that an Ontario statute allows patients to demand certain life-sustaining treatment contrary to clinical judgment. However, much confusion remains in Ontario when non-life-sustaining treatments are at issue, and the common law across Canada remains unsettled.

To assess the benefits and detriments of different approaches to the issue, the laws of Ontario and England are compared. Whereas in Ontario physicians must provide (at least) certain life-sustaining treatment contrary to clinical judgment, in England, courts have consistently held that physicians may refuse to provide treatment contrary to their clinical judgment. English physicians may withdraw even life-sustaining treatment from patients, despite opposition from patients or their families, if the physicians believe continued treatment is medically inappropriate.

Each approach has benefits and detriments. Ontario’s law, for example, has the benefit of promoting patient autonomy, while England’s approach recognizes that physicians’ role is in part moral and helps protect patients.

Opting neither for the English approach nor the Ontario approach, I ultimately suggest that physicians should be required to provide patients with the treatment they request, even if contrary to clinical judgment, unless a court or tribunal determines the requested treatment to be unreasonable in the circumstances. Unreasonableness should be assessed based on medical criteria, the patient’s values, availability of resources, or any other relevant consideration. This approach has the advantage of giving patients a large degree of autonomy and limiting the cost of access to justice, while acknowledging that the physicians should continue to have some role in limiting access to medical interventions.

Keywords: Unilateral Withholding and Withdrawal of Treatment, End of Life, Informed Consent, Health Law, Medical Law, Rasouli, Life-Sustaining Treatment

Suggested Citation

Young, Hilary, A Proposal for Access to Treatment Contrary to Clinical Judgment (September 1, 2017). Available at SSRN: https://ssrn.com/abstract=3039667

Hilary Young (Contact Author)

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada

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