In Defence of Consent and Capacity Boards for End-of-Life Care

Canadian Journal for Anesthesia, Vol. 61, 2014

6 Pages Posted: 8 Oct 2015

See all articles by Jocelyn Downie

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Michael Hadskis

Dalhousie University - Schulich School of Law

Date Written: June 30, 2014

Abstract

In Cuthbertson v. Rasouli, the Supreme Court of Canada (SCC) found that, in Ontario, it is the Consent and Capacity Board (CCB) and not the courts per se who will resolve conflicts between substitute decision-makers (SDMs) and health practitioners regarding the withdrawal of lifesustaining treatment from incapable patients. This finding was based on the SCC’s interpretation of the Ontario Health Care Consent Act (HCCA). Hawryluck et al. express concern about the SCC’s determination that the CCB is charged with resolving such conflicts since, in their view, this body is ill-equipped to fulfill this role. Instead, they take the position that these disputes should be adjudicated by the courts. We disagree with this position and, for the reasons set out in this editorial, take the position that provincial and territorial legislators across the country should follow the lead of the Ontario legislature, revise their health care consent legislation to clarify the law with respect to the unilateral withholding and withdrawal of potentially life-sustaining treatment, and establish open and transparent consent and capacity tribunals to deal with irreconcilable conflicts in this context.

Keywords: health law, policy, end of life, withholdiing and withdrawal

JEL Classification: I18, I19, K32

Suggested Citation

Downie, Jocelyn and Hadskis, Michael, In Defence of Consent and Capacity Boards for End-of-Life Care (June 30, 2014). Canadian Journal for Anesthesia, Vol. 61, 2014 , Available at SSRN: https://ssrn.com/abstract=2670825

Jocelyn Downie (Contact Author)

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9
Canada

Michael Hadskis

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

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