In another example of how citizens are routinely put at risk by the health care system, an Alberta judge has ruled that patients and their substitute decision makers do not need to be informed about the risks of proposed drugs or medical procedures.
In her report on the fatality inquiry into the Zyprexa-caused death of 61-year-old Carol Pifko in an Edmonton AB nursing home, Provincial Court judge Elizabeth Johnson ignored all recommendations put to her, including that long-term care staff inform patients and their families of the risks associated with Zyprexa (olanzapine). Judge Johnson wrote:
“It would seem to fetter a physician in how he or she deals with a patient or exercises his or her professional judgment.”
The judge’s statement does not square with the law. Every citizen in Canada has the right to refuse consent to medical treatment (including medication), and to be given information by the doctor about what treatments are proposed. That is the law. Canadian laws protect us from being subjected against our will to medical treatment or care that we do not consent to (with one exception, if a person is deemed to be a danger to others or themselves). Our laws were designed to prevent the atrocities committed by doctors in dictatorships such as Nazi Germany.
Informed consent is essential
It is recognized that information about proposed treatments, including medication, is essential to making health care consent decisions. “For consent to treatment to be considered valid, it must be an “informed” consent. The patient must have been given an adequate explanation about the nature of the proposed investigation or treatment and its anticipated outcome as well as the significant risks involved and alternatives available.” Consent – A guide for Canadian physicians, Kenneth G. Evans, General Counsel, Canadian Medical Protective Society, Fourth Edition.
If the person/patient is incapable, then their appointed substitute decision maker (SDM) has these rights. SDMs are also referred to as personal/health care representatives or proxies. If the patient has not appointed an SDM, their immediate next of kin has the right to make those decisions on the person’s/patient’s behalf. As an example, see the description of the next-of-kin decision-making hierarchy in the B.C. Health Care (Consent) and Care Facility (Admission) Act.
“All provinces allow for a person, while capable, to appoint another person to make health care decisions on their behalf in the event of incapacity. This issue may be dealt with in health care consent legislation of general application, or in specific legislation.  In Ontario, this role is incorporated within the personal power of attorney provided for by the Substitute Decisions Act.” [IV. Substitute Decision Making: Canadian legislative review, Law Commission of Ontario] For an example, see the B.C. Representation Agreement Act which governs the appointment of substitute decision makers for health care consent decisions in that province.
Inadequate compliance with the law in the health care sector
Health care consent laws are designed to be “non-paternalistic and consistent with the autonomous decision making rights guaranteed by section 7 of the (Canadian) Charter” of Rights and Freedoms, according to lawyer Margaret Hall’s 2009 report written for the Law Commission of Ontario. However, she notes that this often isn’t happening. She cites a variety of reasons, including attitude: “paternalistic attitudes regarding older adults as persons to be “done to” rather than persons in control of their own decisions.”
The legal establishment believes its laws are good but that the implementation of the laws (by health care providers, public agencies and authorities) is bad. In her research report, Margaret Hall frankly opines that there is “inadequate compliance with the law governing substitute decision making in the health care sector.”
In her report examining whether Canada’s health care consent and elder abuse laws were effective, Ms. Hall comments that “entrenched ageist attitudes and stereotypes among (health care) professionals implementing the legislation will increase (patient) vulnerability and the likelihood that autonomy will not be respected,” and that “ … professionals and (possibly particularly) institutional staff may tend to make decisions that primarily meet institutional needs.”
The report is to be commended for its candid assessment of just how vulnerable older people are “on the ground” where legal and health care issues intersect. However, not so laudable is the claim that, “These tendencies (to put institutional needs first) do not connote “badness” or selfishness, but reflect the coincidence of basic human tendencies to prefer decisions in one’s own interests, where they can be plausibly justified, with the ageist social attitudes that provide that justification.” Upon reading that sentence, one is tempted to say, “Huh??” To “prefer decisions in one’s own interests” is the very definition of “selfishness”, by most any measure.
Paternalistic professionals fetter autonomous decision making rights
And this brings us back to paternalism versus autonomy of the person (or their substitute decision maker). Is the ruling by Alberta Provincial Court judge Elizabeth Johnson in the fatality inquiry into the death of Carol Pifko an example of paternalism roaring back into health care consent law, both in the implementation of the law by the judiciary, as well as on the ground by the health care sector?
Does a person’s right to refuse medical treatment really “fetter” a doctor’s exercising of his or her professional judgment? That’s like saying that doctors don’t want to be provided with facts or scientific evidence because that might “fetter” their opinions and judgment. One would think that ensuring that a doctor is at least mindful and knowledgeable about the risks of pharmaceutical drugs he/she wants to administer would, in itself, be a good thing – especially since it is commonly acknowledged, as in this Canadian Medical Association Journal article, that doctors have surprisingly little training in or understanding of the risks associated with pharmaceutical drugs. As MP Terrence Young explains, much of the “education” doctors get on the risks of prescription drugs comes from the drug manufacturers.
Lastly, since when does “unfettered” professional judgment trump the wishes and rights of a person or their substitute decision maker to say “no” to proposed medical treatment, especially when the treatment proposed presents serious, often deadly, risks?
Many of the people who have contacted Seniors at Risk believe that while laws exist to protect our rights and freedoms, in reality health care providers, public agencies and even law enforcement and legal authorities are increasingly ignoring these laws, and disregarding an individual’s rights under the Canadian Charter of Rights and Freedoms.
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