Décision

OVERVIEW

[1]         The Court is being asked to answer the following question: Should the Applicants be authorized to stop providing treatments and respiratory support to the Defendant (Concerned Person) and replace the current treatment plan with palliative and comfort measures?

[2]         The Hearing was scheduled to be heard on September 9, 2019. At the request of the Concerned Person’s son, Mr. S. Y., the hearing was postponed to September 11, 2019 by the Court in order to allow for the family to retain the services of a lawyer.

[3]         The Concerned Person is now represented by an attorney, Mtre François Laroche, further to his designation by the Court in order to safeguard her rights.

[4]         The family still did not have legal representation, but in the interest of the Concerned Person, the matter proceeded as scheduled.

1.            CONTEXT

[5]         The Concerned Person is a 74 year old woman with stage 4 Hodgkin’s Lymphoma. Not a candidate for aggressive therapeutic options, she was treated with a palliative chemotherapeutic agent.

[6]         She is married to the Impleaded Party and has three sons.

[7]         During the month of July 2019, she suffered a fall and was hospitalized. Upon hospitalization on July 7, 2019, she was found to be in “anasarca”,[1] with acute kidney dysfunction, low level of pallets in her blood,[2] and an unusual amount of fluid around the lungs.[3]

[8]         Her situation deteriorated from a respiratory perspective and she developed liver dysfunction. She now has multiple organ failures and is currently on a ventilator.

[9]         Since the end of July 2019, she has been in the intensive care unit at the Royal Victoria Hospital under the care of a treating team under the responsibility of a doctor. Each week, the attending physician responsible for the team changes. Meetings are held weekly to discuss patient care in order to ensure proper follow up. Dr. Gordan Samoukovic became the Concerned Person’s treating physician on or around August 29, 2019.

[10]        Since her admission to the ICU unit, she has been treated aggressively. This treatment lasted several weeks, but she continued to suffer from multiple infectious complications. Recently, she has suffered from an incurable gastric haemorrhage.

[11]        She is supported with multiple vasoactive medications at high doses, dialysis and continuous infusions with multiple blood products. She is not sedated, cannot be fed, and has only begun receiving continued medication to alleviate the pain on September 10^th, 2019 further to a Safeguard Order rendered by the Court.

[12]        She is presently unconscious and unable to communicate. Her son testified that he saw her open her eyes on occasion and felt her squeeze his hand.

[13]        Her current active issues are:

·           Hodgkin’s lymphoma-palliative stage;

·           Acute gastrointestinal bleed due to stomach necrosis;

·           Acute liver dysfunction;

·           Acute renal therapy requiring replacement therapy;

·           Distributive shock and profound swelling;

·           Stage IV decubitus ulcers;

·           Neurologic impairment due to profound metabolic encephalopathy.[4]

2.      Position of the parties

[14]        The Applicants submit that the Concerned Person is at the end of her life, is in significant pain and is suffering greatly as a result of the current treatment plan. Because she is ventilated and has gastro-bleeding she cannot eat and the medical team is of the view that her current treatment plan is not beneficial to her and compromises her quality of life. Her plan of care should be reoriented to palliative and comfort measures. 

[15]        The Applicants submit that the family’s resistance to modify the care plan to provide palliative and comfort care is contrary to the Concerned Person’s interest. Furthermore, this treatment is sustaining her life, when she is at the end of her life, and is obliging her to die slowly and in pain.

[16]        She signed a level of care document in July 2019 requesting that the Applicants do whatever they can to treat her.[5] Neither party produced the document.

[17]        Dr. Samoukovic, the treating physician since August 29, 2019, is of the opinion that the Concerned Person is essentially dead and the current treatment is keeping her alive but preventing her from dying peacefully and in dignity.

[18]        The Applicants recommend:

1)     The cessation of transfusion of blood products;

2)     Cessation of Renal replacement therapy;

3)     Cessation of hemodynamic support and mechanical ventilation;

4)     Commencement of palliative and comfort measures to alleviate the suffering and allow a peaceful death.

[19]        Both the Applicants and the Concerned Person’s family recognize that she is incapable of giving or refusing her consent. Her husband is the person entrusted by the law to consent or refuse on her behalf.[6] He categorically refuses that the current treatment plan be modified. Her son S. is also against modifying the current treatment plan.

[20]        The second son, B. B., lives in the Montreal area and testified that he is in favour of the change in treatment plan to the one that is proposed and believes his mother would also consent to it if she could.

[21]        The third son, H., also testified by telephone, but the Court does not find his testimony useful as he has not seen his mother since 2018 and is relying on what S. told him.

[22]        The family has consented to have the occasional pain medication administered to her but refused that it be administered on a consistent basis as they are of the view that she is not in pain other than a bed sore on her body, which causes pain when she lies on it.

[23]        The relationship between the treating team and the father and son S. is difficult, to put it mildly. The son S. has accused the medical team of trying to kill his mother.

3.      ANALYSIS

[24]        Given the husband’s refusal to modify the treatment plan for the Concerned Person, the Applicants are seeking the Court’s authorization to implement the new Care Plan which would essentially entail stopping all treatment and limiting her care to palliative and comfort measures.

3.1  The legislation

12. A person who gives his consent to or refuses care for another person is bound to act in the sole interest of that person, complying, as far as possible, with any wishes the latter may have expressed.

If he gives his consent, he shall ensure that the care is beneficial notwithstanding the gravity and permanence of certain of its effects, that it is advisable in the circumstances and that the risks incurred are not disproportionate to the anticipated benefit.

15. Where it is ascertained that a person of full age is incapable of giving consent to care required by his or her state of health and in the absence of advance medical directives, consent is given by his or her mandatary, tutor or curator. If the person of full age is not so represented, consent is given by his or her married, civil union or de facto spouse or, if the person has no spouse or his or her spouse is prevented from giving consent, it is given by a close relative or a person who shows a special interest in the person of full age.

16. The authorization of the court is necessary where the person who may give consent to care required by the state of health of a minor or a person of full age who is incapable of giving his consent is prevented from doing so or, without justification, refuses to do so; it is also necessary where a person of full age who is incapable of giving his consent categorically refuses to receive care, except in the case of hygienic care or emergency.

[…]

[Emphasis Added]

3.2  Discussion

[25]        The Court must consider the following criteria in order to decide on this matter:

Ø  Any decision must be made in then sole interest of the Concerned Person;

Ø  By taking into account, if possible, the wishes she expressed;

Ø  To ensure that the care is beneficial to her;

Ø  That they are useful under the circumstances;

Ø  That they are appropriate under the circumstances;

Ø  And that the risks incurred are not disproportionate to the anticipated benefits.[7]

[26]        The Court adopts the following passage of Mr. Justice Parent in the matter CHU de Québec c M.G.[8]:

23.  Dans un arrêt de 1986, mettant en jeu le consentement substitué d'un parent pour son enfant mineur, monsieur le juge Chevalier écrit :

Il [le parent] doit agir dans son meilleur intérêt [l'enfant], mais ce n'est que si, compte tenu de tous les facteurs en cause, sa décision s'avère déraisonnable et contraire aux intérêts de l'enfant qu'une cour de justice doit intervenir. Il ne s'agit pas alors pour la cour de se substituer au titulaire de l'autorité parentale et de décider à sa place, mais de corriger une décision manifestement erronée.

Ce pouvoir d'intervention doit s'exercer avec circonspection[9].

24.  Enfin, reconnaissant le caractère extrêmement délicat et difficile du contexte d'intervention du tribunal, monsieur le juge Chevalier rappelle :

Délesté de son contenu émotionnel et des questions, par ailleurs sans doute pertinentes dans d'autres forum, d'ordre philosophique, moral et déontologique qu'il soulève, le problème fondamental et unique qui se pose à l'examen de cette cour est celui du pouvoir d'intervention des tribunaux dans la matière du litige.

25. Bien que cet arrêt s'inscrive dans le contexte du consentement substitué donné par un parent pour un enfant mineur, alors que le cadre législatif différait, et malgré que près de trente ans se soient écoulés depuis, l'approche préconisée par la Cour d'appel et les principes qu'elle rappelle demeurent pertinents à l'analyse de la présente demande.

3.3  The physicians’ opinions

[27]        Dr. Samoukovic, the doctor responsible for the Concerned Person, took over the care of the Concerned Person on August 29, 2019 from Dr. Shahin. The treating team had instructed that she receive vigorous treatment as of her admission to ICU, which treatment was administered over a period of several weeks. Not only was the treatment unsuccessful, but her situation deteriorated.

[28]        Before seeking authorization to modify the Concerned Person’s care plan, Dr. Shahin, and then, Dr. Samoukovic, who is an expert in cardiology surgery, intensivist and echocardiographer, consulted with three MUHC intensivists, the Chief of ICU at the Jewish General Hospital, a gastroenterologists, and an ethicist. As of September 5, 2019, he is of the following opinion:

“Unfortunately, Mrs […] is at the end of her life. She is still supported with multiple vasoactive medications at enormous doses, dialysis and continuous infusions with multiple blood products. She is not sedated; her pain and suffering are not alleviated at the request of the family; we cannot feed her due to the necrosis of the stomach. Therapeutic futility has been reached almost 10 days ago, and this woman is actively dying in agony. The medical teal is in extreme distress watching someone suffer and being unable to intervene. It is a unanimous opinion that the goals of care should be re-oriented.

[…]

DOCUMENTS AND OPINIONS ACQUIRED:

1)      Opinions of three MUHC intensivists attesting to futility of therapeutic modalities

2)      Opinion of the chief of ICU at the Jewish General Hospital attesting to futility of therapeutic modalities

3)      Opinion of a gastroenterologist attesting to irreversibility of the gastric bleeding

4)      Opinion of the MUHC ethicist attesting that due process was followed.

Recommendation:

1)      Cessation of transfusion of blood products

2)      Cessation of renal replacement therapy

3)      Cessation of hemodynamic support and mechanical ventilation

4)      Commencement of palliative / comfort measures^[10]

[Reproduced as is]  [Emphasis added]

[29]        Dr. Paul Warshawsky, an intensivist and Chief of the ICU unit of the Jewish General Hospital concluded on August 28, 2019, after seeing the Concerned Person and reviewing her case:

Overall:

She has Hodgkin’s lymphoma but was unable to receive intention-to-cure chemotherapy due to a poor functional status and frailty. Her first dose of palliative chemotherapy - though effective in reducing her lymphoma burden - resulted in a 50 day hospital stay with 43 days in ICU. In that time there has been no functional recovery. She will not be able to recover to a point where she is a candidate for further chemotherapy, thus her lymphoma must be considered a terminal disease.

Given her terminal disease, the only reasonable goal for ICU care would be to stabilize her to the point where she can be able to receive high-quality palliative care outside of an ICU. Despite over 6 weeks of attempts to do so, there has been no progress towards this goal. Given the multiple organ failure (respiratory, renal, hepatic, neurologic and hematologic) it is highly unlikely that she would recover sufficiently to ever be treated outside the ICU, and even if this were to happen, it would not be sustained for any meaningful time period.

The ongoing therapies (mechanical ventilation, continuous dialysis, vasopressor therapy and transfusional support) are therefore not helping to achieve the current goal of therapy. Rather, they are only prolonging her survival by a short period of time. The ongoing transfusional support seems only to be delaying her inevitable death, since there is no indication that her GI bleeding is abating. While I see adequate evidence that ongoing therapy for her GI bleeding is not helping to achieve a reasonable therapeutic goal, it seems that there continues to be some hope on the part of the family that the bleeding will subside, and she will eventually stabilize to a point where she might have an “acceptable outcome”. Perhaps more certainty could be achieved with respect to this by repeating the upper endoscopy to see if there has been any change in the findings, and possibly by repeating a CT scan of the abdomen to better identify the process that is causing the changes seen in the stomach. (This would likely require contract administration, and thus the risks and benefits of this study - including the need to prepare her for contrast administration given her iodine allergy - would need to be considered.)

In my opinion the most appropriate course of therapy would be to limit transfusions and vasopressors, and if she does not improve within these parameters, change the focus of therapy to a goal of comfort. Further escalation of therapy, and particularly resuscitation in the event of cardiac arrest, has no meaningful chance of changing her outcome.[11]

[30]        The recommendations of Dr. Warshawsky were followed, if possible, and the outcome was not positive, thus, the current Application to be authorized to modify the Care plan.

[31]        Given the deterioration of her condition, the prognosis is that she will never leave ICU or regain any meaningful quality of life. She is at the end of her life and now requires palliative and comfort care.

[32]        Dr. Samoukovic testifies that she is dying, but her life is being prolonged artificially, which is preventing her from dying with dignity and peacefully.

[33]        To continue the current treatment plan is subjecting her to undue stress and discomfort and is causing significant pain, without any benefit. It is preventing her from dying peacefully.

[34]        Dr. Samoukovic testified that he has spoken with the Father and son S. on many occasions regarding the change to the care treatment plan but the discussions were tense. The situation between the medical team and certain members of the family is very difficult and very tense.

4.      CONCLUSIONS

[35]        The Court is conscious of the significance of the decision it is called upon to render and the consequence it will have on the Concerned Person and her loved ones. The decision must be made in her sole interest.

[36]        The Court found Dr. Samoukovic’s testimony credible and it demonstrated the extensive effort of the medical team of ICU went through to ensure that it was in the Concerned Person’s best interest to modify the treatment plan to palliative and comfort care in order to allow her to die with dignity and peacefully.

[37]        The evidence shows that the current treatment plan is not beneficial to the Concerned Person, and that her condition, combined with the treatment plan, interferes with her capacity to eat and she is suffering and in pain. She is maintained in life by mechanical means in conjunction with several weekly blood transfusions and acute renal therapy, among other treatments.

[38]        Even S. admits that she is near the end of her life but wants one more week to see if her bleeding in her stomach will stop if a certain medication is stopped. The Concerned Person’s condition is beyond the bleeding in the stomach. She has lymphoma and irreversible multi-system failure.

[39]        She is unconscious, is in the final stage of her life and has no hope for any quality of life. It is likely that she would prefer not being submitted to a treatment plan that is not beneficial to her, which causes her pain and suffering. The family’s refusal to modify the treatment plan is unreasonable under the circumstances and not in the Concerned Person’s best interest.

[40]        The Court concludes that to continue the current treatment plan would be contrary to the Concerned Person’s interest, not beneficial or appropriate. Her current conditions requires that she be comfortable and not in pain.

[41]        The Court will authorize the Applicants to cease the current treatment plan and replace it as suggested by them.

WHEREFORE, THE COURT:

[42]        GRANTS the Application;

[43]        SHORTEN the delays for service and presentation of the Application;

[44]        AUTHORIZES the MUHC, the Defendant’s treating physician and any other delegated physician or any other delegated member of the treating team, to administer towards the Defendant the Care Plan prescribed below, and more specifically:

1)     Cessation of blood product transfusion;

2)     Cessation of renal replacement therapy;

3)     Cessation of hemodynamic support and mechanical ventilation;

4)     Administration of palliative/comfort care measures.

[45]        AUTHORIZES the MUHC and the Defendant’s treating physician or any other delegated physician to adjust or modify the Care Plan based on the Defendant’s clinical response to said Plan and following a medical decision from her treating physician or any other delegated physician to that effect;

[46]        ALLOWS the MUCHC and the Defendant’s treating physician or any other delegated physician to not administer any resuscitative measures to the Defendant, should she suffer a cardiac arrest;

[47]        ORDERS S. Y. and Y. B. to not interfere with the above-described care plan;

[48]        TAKES ACT of the MUHC’s commitment to establish a process that will be implemented in the respect, dignity and comfort of the Defendant in an environment of intimacy and peace for her family members;

[49]        ACKNOWLEDGES the MUHC’s commitment to offer to the family members all the support they will need, if they require it;

[50]        ORDERS that the present judgment be executory notwithstanding any appeal;

[51]        THE WHOLE without legal costs.