Are Halachic Powers of Attorney for Personal Care Binding in Ontario Part One
Charles B. Wagner
This article will examine the precedent living wills developed & published by the Commission on Medical Ethics of the Rabbinical Council of America and Agudath Israel of America in the context of Ontario law.
This paper will address whether a hospital is bound by a written power of attorney for personal care which requires that the Substitute Decision Maker ("SDM") consult with a rabbi and be bound by the rabbi's decision concerning end of life issues.
Lawyers involved in estate planning normally recommend that clients have powers of attorney for personal care prepared so that the client's wishes are clearly articulated and entrusted to someone who can communicate those wishes to the doctors if the client is unable to do so. Ontario's Substitute Decisions Act sets out the criteria as to how the power of attorney for personal care should be executed and those using the precedents should be careful regarding the formalities of execution since the precedents were drafted for jurisdictions other than Ontario. Aside from compliance with minimum age and execution requirements set out under Ontario's legislation, there are substantive issues to be addressed to ascertain if these halachic powers of attorney for personal care will have the intended impact on treatment of the patient.
Imagine your orthodox Jewish client who wants a power of attorney for personal care drafted so that the end of life decision will be in compliance with Halacha. After some research you find two precedents. One prepared by the Rabbinical Counsel of America and the other by Agudath Israel of America. These precedents reflect the client's wish that all available measures be taken to prolong life. They both provide that where there is a question regarding the withholding of treatment in end of life situations the treatment plan must be determined in accordance with halacha as ascertained by a named rabbi. Several years later your client is diagnosed with Alzheimers. His physical condition deteriorated to the point that he is placed on a ventilator. In the doctor's opinion, treatments contemplated to prolong the patient's life do not address the patient's underlying condition. While death is not imminent, treatment in this fashion is agonizingly painful and would erode the patient's dignity. He recommends withholding the ventilator. The rabbi is consulted and directs the SDM to refuse to consent to the doctor's proposal. The Doctor applies to the Consent and Capacity Board who orders the SDM to consent to the Doctor's treatment plan. Could this actually happen in Ontario? Perhaps.
In Scardoni v. Hawryluck, two religious Roman Catholics were the designated attorneys for their mother under a power of attorney for personal care. Contrary to the precedents provided by the RCA and Agudath Israel, the power of attorney for personal care executed by their mother was a commonly used precedent authorizing the daughters "to make decisions concerning my personal care in accordance with the Substitute Decisions Act and any conditions, restrictions, specific instructions or special powers contained herein" and, "specifically, on my behalf to give or refuse to consent to treatment to which the Health Care Consent Act, 1996 applies." The two daughters were intent in complying with their mother's wishes who had always told them "where there is life there is hope". They insisted that all efforts be expended to prolong their mother's life.
The doctor was opposed to the use of a ventilator and inotropic drugs because while they would sustain the patient's life, but would not improve the underlying disease. The doctor believed that there was no chance to prevent further deterioration from Alzheimer's. Ultimately, the doctor felt that the benefits in prolongation of this patient's life was not in her best interests in that it did not outweigh the resulting pain, discomfort and loss of dignity resulting in a lower quality of life.
Pursuant to section 37 of the Health Care Consent Act, the doctor applied to the Consent and Capacity Board for direction on the basis that the substitute decision maker ("SDM") did not comply with section 21 of the Health Care Consent Act in coming to the decision to not consent to treatment plan suggested by the doctor. The Board directed the daughters to follow the advice of the doctor. The daughters appealed. The Justice allowed the appeal and set aside the decision of the Board. A review of the issues he canvassed may assist us in assessing how binding a halachic living will may be under a similar scenario.
Health Care Consent Act
It will be a useful exercise to walk through the issues canvassed. His Honour pointed out that the Health Care Consent Act 9 deals with "...circumstances in which consent to a patient's treatment must be obtained and provided, the persons who may give that consent when a patient lacks capacity and the principles that such persons must observe when determining whether to give or refuse consent." Based on his analysis of the legislation, His Honour came to some conclusions relevant to the issues before us:
Obligation by doctor to obtain consent to treatment. By virtue of section 10 of the Health Care Consent Act, a doctor who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act
Doctors must obtain consent to the proposed treatment when the patient does not have capacity.
No decision on whether section 10 obligation applies to withdrawal of treatment - Potentially explosive issue.
This argument surrounding this legal issue may be the most interesting and potentially controversial of this case. Harry Underwood, the lawyer for the hospital argued, that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. In contrast, the lawyer for the daughters, argued that all references to "treatment" in s. 10(1) include a plan of treatment where there is a withholding or withdrawing of particular treatment. Should Mr. Underwood be correct then section 10(1) does not require a SDM's consent to withhold treatment and consequently, regardless of what is written in any power of attorney, a doctor can decide to withdraw or withhold treatment no matter what the patient or SDM wish. So what did the judge decide?
Since, in the Scardoni Case, the doctor asked for the daughters' consent to withhold treatment, His Honour decided "...to leave the choice between the competing alternatives to be dealt with if and when a case ever arises in which the correct interpretation of the section is directly in issue." . I am unaware of a case in Ontario that has addressed this issue. But, if counsel raised it in Scardoni, it is likely to be raised again. It is a live issue and one which directly impacts on the enforceability of the precedent halachic powers of attorney over personal care and for that matter on all powers of attorney for personal care. If the doctor does not need to consult the SDM whether to withdraw treatment then it is irrelevant what the wishes of the grantor were. Personally, I believe that to suggest that patients (or their representatives the SDM) have no say about withdrawal or withholding of services ignores the thrust and purpose of the Act.
Section 1 of the Act describes its purposes and runs contrary to the idea that withdrawal or withholding of services does not require consent. Contrary to the stated purposes of this legislation, failure to consult a SDM about withdrawal of services does not enhance the autonomy of persons for whom treatment is proposed, ignores the wishes with respect to treatment, fails to promote communication and understanding between health practitioners and their patients or clients, fails to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment. Finally, I suggest that the position of counsel for the daughters in the Scardoni case was correct on this issue. Her position was that "treatment" in s. 10(1) includes a plan of treatment. The obligation imposed by the subsection relates to the plan as a whole, including the withholding or withdrawing of particular treatment.
The key to this discussion is Section 21 of the Health Care Consent Act.
This section dictates the basis upon which the substitute decision maker must give or refuse consent to treatment. In summary, the legislation first requires that the SDM shall give or refuse consent in accordance with the wish of the incapable person. Secondly, if the SDM does
not know the wish applicable to the circumstances that the incapable person expressed while capable or
if it is impossible to comply with the wish,
the SDM shall act in the incapable person's best interest.
One of the contentious issues in the Scardoni case was the position taken by the hospital that the lack of specificity in the power of attorney regarding the wishes of the incapable person indicated that, despite the oral evidence to the contrary, the SDM had no idea what the wishes of the incapable person would be in the circumstances. The Board agreed. Justice Cullity did not.
If Justice Cullity found the Scardoni's general power of attorney, together with the oral evidence of the daughters, sufficiently specific to conclude what the wishes of the incapable person were, then a fortiori, the specificity of the halachic powers of attorneys should be sufficiently clear so that no one should have doubts about the grantor's wishes. For example, the Agudath Israel of America states:
Jewish Law to Govern Health Care Decisions: I am Jewish. It is my desire, and I hereby direct, that all health care decisions made for me be made pursuant to Jewish law and custom as determined in accordance with strict Orthodox interpretation and tradition. Without limiting in any way the generality of the foregoing, it is my wish that Jewish law and custom should dictate the course of my health care with respect to such matters as the performance of cardiopulmonary resuscitation if I suffer cardiac or respiratory arrest; the performance of life-sustaining surgical procedures and the initiation or maintenance of any particular course of life-sustaining medical treatment or other form of life-support maintenance, including the provision of nutrition and hydration; and the criteria by which death shall be determined, including the method by which such criteria shall be medically ascertained or confirmed.
Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox Rabbi:...
One might argue that the halachic power of attorneys do not deal with all types of end of life issues ( i.e. dialysis or dosages of morphine to name two examples) and in those circumstances the wish of the incapable person is unknown and decisions must be made in the best interests of the patient. The response would be that the incapable person's wishes, in those circumstances, are covered by the general statement "...I hereby direct that all health care decisions made for me be made pursuant to Jewish law and custom as determined in accordance with strict interpretation and tradition".
One might be tempted to suggest a divergence of rabbinic opinion on the appropriate halachic response to different Life Ending issues could cast doubt on the wishes of the grantor. This might permit a doctor to apply to the Board under section 37 and seek to impose a treatment plan in the "best interests" of the patient which would be contrary to their wishes. For example, one rabbi may review a situation and permit the SDM not to authorize a feeding tube, while another rabbi may suggest the opposite. The doctor could then argue that the divergence of opinion regarding the Halacha precludes being able to ascertain the patient's wishes. In these circumstances the SDM must take into account the "bests interests" of the patient which includes factoring in "well being" or quality of life issues. This type of argument was used in Scardoni when the Board referred to their own knowledge of Roman Catholic doctrine to cast doubt on the SDM's view of their mother's wishes.
Just as Cullity dismissed this argument in the Scardoni case, I suggest other courts would likely look at both these precedent power of attorneys and likely conclude that the appointment of a specific rabbi (or a formula in lieu of a specific rabbi) provides sufficient specificity of the grantor's wishes in that the appointed rabbi was likely chosen because his interpretation of the halacha reflected the wishes of the grantor. Where a difficulty may arise is if the chosen formula might produce several rabbis with divergent views. Should one be known publicly to support one position and the other a different position then there will be legitimate confusion as to the wishes of the incapable person in the circumstances. At that point a doctor could suggest that the wishes of the incapable person cannot be determined and the governing factor under the legislation should be the best interests of the patient.
So what does "best interest" mean?
Let's go to section 21(2) of the Act. The Emphasis is added. " In deciding what the incapable person's best interests are, the person who gives or refuse consent on his or her behalf shall take into consideration,
the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
the following factors:
Whether the treatment is likely to, improve the incapable person's condition or well-being, prevent the incapable person's condition or well-being from deteriorating, or reduce the extent to which, or the rate at which, the incapable person's condition or well-being is likely to deteriorate.
Whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed."
In the Scardoni case the Board said as follows: "We thought "well-being" involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word "condition," which connoted to us a more objective assessment of the status of a person's illnesses and physical situation. "Well-being" includes considerations such as the person's dignity and levels of pain."
On the appeal of the Board's decision, Justice Cullity agreed with the Board's understanding of "well-being". A Board's determination of "best interests" may be contrary to everyone's view of a proper halachic response, but if there is doubt as to the wishes of the incapable person the Board's decision about "best interests" would be determinative.
This article is continued in Part Two
Charles B. Wagner of Wagner & Associates, is a lawyer and litigator whose practice focuses on Commercial and Estate Litigation. Contact Charles Wagner today.