Next Up: A Proposal for Values-Based Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment

28 Pages Posted: 26 Nov 2016 Last revised: 5 Jan 2018

See all articles by Jocelyn Downie

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Date Written: 2016

Abstract

As the legalization of assisted dying shifts from a project for law reform to one of implementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateral withholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well as a number of other countries (e.g., the United States, Australia, and New Zealand) and a more distant horizon (but inevitable) issue for many other countries as they move beyond the debate of whether to even withholding or withdrawal of potentially life-sustaining treatment (e.g., South Korea).

In this paper, we attempt to take a step back from the drama and vitriol surrounding conflict that can arise when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should. We suggest and model an approach to law and policy reform in this area. To that end, we begin with a review of what is known about what is going on in relation to unilateral withholding and withdrawal of treatment (without the consent or knowledge of the patient or patients substitute decision-maker) demonstrating that: it is happening; it is controversial; it is being challenged in courts; and it is not being approached by the law in the same way in every country (or indeed, even in the same way within a country). We then present a process for pursuing law reform, exploring Canada as a case study, to provide a model strategy for approaching law reform in other countries and to advance the project of law reform in Canada. To that end, we reflect on the fundamental values that should underpin a legal framework for decision-making on whether potentially life-sustaining treatment should be withheld or withdrawn. These values and the ways to balance these values against each other are drawn from the constitution, legislation, the common law, conventions and treaties that have been ratified by Canada, and “fundamental values of Canadian society” within which the ethical debate about the unilateral withholding and withdrawal of potentially life-sustaining treatment is situated. We then develop a proposal for how the law could be reformed such that it will more closely align with the fundamental values it is supposed to serve. We hope that in the end, this proposal might help us to move forward from friction to accord and, ultimately, to a future of better care for both the living and the dying.

Keywords: End of life decision-making, Withholding and withdrawing life sustaining treatment, Futility, Futile treatment, Adult guardianship law, Health law, Medical law

Suggested Citation

Downie, Jocelyn and Willmott, Lindy and White, Ben, Next Up: A Proposal for Values-Based Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment (2016). Alberta Law Review, Vol. 54, No. 3, 2017. Available at SSRN: https://ssrn.com/abstract=2874528

Jocelyn Downie

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9
Canada

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

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