Do not resuscitate orders.

The decision of a physician to place a Do Not Resuscitate Order on a patients charts is a decision which engages medical, legal, and ethical issues. The advice of lawyers is often sought with respect to the ability of physicians to make such orders, the ability of a family member to direct a physician to make such an order and the general legal implications of such orders.

Two recent Manitoba cases dealt with some of the legal issues that may arise when a Do Not Resuscitate Order is made:

* Re Child and Family Services of Central Manitoba v. Lavallee, 1997 (referred to as Lavallee)

* Sawatzky v. Riverview Health Centre Inc. 1998 (referred to as Sawatzky).

The Lavallee decision involved an infant that was born in December of 1996 and was admitted to hospital when he was three months old. The infant had been physically assaulted to such a degree that he was left in a persistent vegetative state. The identity of the individual(s) who had perpetrated the assault was unknown; however, the Child and Family Services of Central Manitoba apprehended the infant from his parents care and control.

In consultation with the infants physicians, Family Services agreed that the placement of a Do Not Resuscitate Order on the infants chart was the appropriate course of action. Family Services applied to the Court of Queens Bench of Manitoba to obtain a court order allowing them to instruct this course of negative treatment. The infants parents refused to consent to the Do Not Resuscitate Order. The Manitoba Child and Family Services Act authorizes Family Services to make application for an Order to authorize medical treatment in respect of an apprehended child, if the parents refuse to consent to medical treatment.

The Court of Queens Bench held that the Act allowed the Court to authorize negative as well as positive treatment plans and after reviewing the evidence held that directing the Do Not Resuscitate Order was in the best interests of the infant. Consideration of what is in the "best interests of the infant" is the guiding principle for all decisions regarding an apprehended infant. This decision was appealed.

The Court of Appeal allowed the appeal. Save for certain limited exceptions (i.e. emergency treatment), a physician must receive consent prior to administering medical care or risk committing the tort of assault. However, the Court of Appeal held that consent is not necessary for a physician to refrain from providing treatment or to issue a non-resuscitation direction where in the physicians judgment the patient is in an irreversible persistent vegetative state.

The Court of Appeal notes that to the best of their knowledge this issue has not previously been judicially considered in Canada. Relying on and adopting the reasoning of a decision of the Massachusetts Appeals Court, the Manitoba Court of Appeal stated the following in its decision:

"... Support the conclusion that neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where, in his or her judgment, the patient is in an irreversible vegetative state. Whether or not such a direction should be issued is a judgment call for the doctor to make having regard to the patients history and condition and the doctors evaluation of the hopelessness of the case" (emphasis added).

The Court goes on to direct that the wishes of the family/guardian(s) should be sought and considered, but that neither their consent nor prior judicial authorization is required. Further, the Court stated that there is no legal obligation on a medical doctor to take heroic measures to maintain the life of a patient in an irreversible vegetative state.

Mr. Sawatzky was a patient in the Riverview Health Centre Inc., who suffered from, among other things, Parkinsons disease. Mr. Sawatzkys physician initially recommended that Mr. Sawatzky not be resuscitated in the event he experienced cardiac arrest, but ordered resuscitation in light of objections made by Mrs. Sawatzky. Mr. Sawatzky was admitted to the Riverview Centre in May of 1998 and later in the summer it was determined that Mr. Sawatzky required surgery to alleviate a cuffed tracheostomy tube. However, Mrs. Sawatzky refused to consent to the treatment. Mr. Sawatzkys physician applied to the Director of Psychiatric Services of Manitoba and the Public Trustee was appointed and vested with the authority to consent to medical treatment and procedures with respect to Mr. Sawatzky. The tracheostomy impaired Mr. Sawatzkys ability to communicate.

A second medical opinion was sought and the Public Trustee consented to the surgery regarding the cuffed tracheostomy. Following this procedure, Mr. Sawatzkys condition worsened and he developed pneumonia. Mr. Sawatzkys physician issued a Do Not Resuscitate Order without providing notice to Mrs. Sawatzky and without obtaining a second opinion. When Mrs. Sawatzky learned of the Do Not Resuscitate Order, she reiterated her objection and brought an application seeking an injunction preventing her husbands physician from placing the Do Not Resuscitate Order on his chart.

The court, in deciding to grant an interim injunction, affirmed that a decision to or not to provide medical treatment is to be made by the responsible physician and not the courts. The Manitoba League for Persons with Disabilities Inc. (MLPD) applied to be added as an intervenor and wished to make arguments respecting the Canadian Charter of Rights and Freedoms.. Specifically, the MLPD wished to determine whether the imposition of a Do Not Resuscitate Order issued without the consent of the patient deprives patients of their s.7 rights, the right to "life, liberty and security of the person". The court declined to deal with the Charter issues given the nature of the application before it, but recognized that the MLPD had raised issues that are novel and might lead to the development of new Charter jurisprudence. The physician argued that in his opinion it was in the best interest of the patient not to resuscitate and therefore to order otherwise placed him in an ethical dilemma.

In granting the interim injunction to prevent the issuance of a Do Not Resuscitate Order the Court considered factors including the following:

* The DO resuscitate order had been in place for five months; if the decision was one which presented an ethical dilemma it was dearly one the physician could live with.

* The treatment required to resuscitate is not extensive and does not involve an invasive procedure.

* The treatment (CPR) would be performed by the first available individual, likely not a doctor. The treatment did not have to be administered by Sawatzkys own physician.

* The treatment does not per se raise the same ethical issues for the attending physician, such as a procedure like abortion would.

* The presence of conflicting evidence regarding the medical condition of Mr. Sawatzky.

The court noted the Lavallee decision and affirmed that the family/guardians interests should be considered along with the public interest in protecting vulnerable patients and respecting the ethical duties imposed upon physicians. However, the court noted that unlike the infant in Lavallee, Mr. Sawatzky was not in a persistent vegetative state. The court was critical of the Public Trustee for failing to participate in the injunction application. Following the Lavallee decision, the Public Trustee in Manitoba had apparently adopted a policy of not reviewing or requesting notification/consent for the decision to place a Do Not Resuscitate order on a patients chart. While consent may not be necessary, the court was of the view that a substitute decision maker like the Public Trustee should still participate to ensure that the decision being made is in the best interests of the patient.

Both decisions stand for the proposition that neither a court order nor the consent of a family member/guardian is necessary in order for a physician to make a Do Not Resuscitate Order in respect of an individual who is in a persistent vegetative state. The court, in these cases, did not need to address the issue of the effect of a personal directive that provides clear and unambiguous direction with respect to resuscitation in certain clinical situations; however, one would expect that such a personal directive would receive significant consideration by a physician in deciding whether resuscitation is appropriate or not. While these two cases raise more questions than are answered by the court, they are a good starting point for anyone interested in this area of the law or dealing with Do Not Resuscitate Orders.