Volume 2, Issue 6 -- August 1999

Law, Ethics, and Consent to Medical Treatment

Legal cases that involve questions of life and death and very personal choices about medical treatment often give rise to heated public debate. The story of Tyrell Dueck is no exception. The case involved the heartbreaking situation of a young boy diagnosed with osteogenic sarcoma, a rare but virulent form of bone cancer, whose parents refused to consent to the traditional medical treatment involving chemotherapy and surgery. This refusal of treatment set in motion a legal process whose outcome seemed less than ideal no matter what one's perspective -- either Tyrell would receive no conventional treatment, in which case the cancer would be expected to spread very quickly and be fatal, or he would receive treatment, giving him a 65% chance of recovery, contrary to the will of his parents and, apparently, his own desires.

Cases of this nature force us to re-examine our views about such issues as refusal of treatment and the concept of maturity in the sense of being capable of making one's own health care decisions. And, situations like that of Tyrell Dueck force us to confront some of the ways in which legal rules, and the legal answers they lead to, may not always be identical to the ethical answers to those same questions. It must be kept in mind that, although ethical concerns have a role in helping to shape legal rules, law and ethics remain distinct systems with distinct aims: while the law forms a minimal set of rules of general application, capable of resolving most situations within a particular category, ethics is concerned with finding the best answer to a particular dilemma. Clearly, both legal and ethical issues require consideration incases like this one, but in this brief article, I will highlight the main legal issues that fall to be considered in cases like that of Tyrell Dueck and explain why, in my view, the legal answers arrived at in this instance are sound.

Consent to Treatment

Consent is a necessary pre-requisite to medical interventions, be they diagnostic or treatment oriented; treatment provided without consent amounts to a legally actionable wrong.^2,3,5 Given that there can be no treatment without consent, it follows that a competent adult is entitled to refuse medical treatment.^2,3,5 Health care providers are entitled to attempt to persuade their patients that treatment is in their best interests, but providers who treat a patient without consent will be subject to legal penalties. This is true even where the treatment will improve the patient's medical condition and even where without the treatment, the patient would have died.³ Where the patient is a minor, the child's parents, as guardians, are authorized to consent to medical treatment on behalf of their child.^1,2,5,9 Parents may also refuse treatment on their child's behalf, but this right of refusal is not absolute.^1,2,5,9 Accordingly, in some cases, the courts may intervene to protect the child's best interests. Further, where the child, although a minor, is capable of understanding the nature and consequences of the decision whether or not to accept medical treatment, the child is said to be a "mature minor" and may make his or her own decision. In this situation, the parents have no right to consent to or refuse treatment for the child.

Both of the above-described scenarios became issues in the Dueck case⁴ -- first, the court was asked to decide whether Tyrell's parents' refusal of treatment was in his best interests and, second, the court was called up onto decide whether Tyrell had capacity to make his own decisions about his cancer treatment. When Tyrell was initially diagnosed with osteogenic sarcoma and his parents refused treatment, Tyrell's treatment team commenced legal action, requesting an order giving the Minister of Social Services guardianship over Tyrell for the purposes of making medical decisions. Part way through the second course of chemotherapy, Tyrell told his oncologist that he did not want any further chemotherapy, nor did he want to have his leg amputated. At this point, the court was asked whether Tyrell was a "mature minor", such that he could make his own treatment decisions. The court concluded that Tyrell was not a mature minor; rather, he was a "boy deeply under the influence of his father..." The court noted that: "T. does not appreciate or understand the medical treatment he requires. And T. does not appreciate and understand that if he discontinues his chemotherapy and refuses surgery, he will die within a year from the spreading cancer."⁴

The Legal Issues

The rationale for the child welfare rules is, among other things, to protect the best interests of the child, but the trend in Canadian child welfare statutes is to encourage minimal intervention.⁷ In other words, the granting of guardianship to someone other than the child's parents is considered to be the solution of last resort. The Saskatchewan child welfare legislation states that a child is in need of protection where the child's parents refuse treatment considered essential by a duly qualified medical practitioner; this was clearly the situation in the Dueck case.⁶ The orientation of the law tends toward the preservation of life, although this is not necessarily always true.^1,8 As such, it is unsurprising that decision-making capacity with regard to Tyrell's treatment was not left with his parents who, although they clearly wanted him to receive treatment, refused to consent to the only recognized medical treatment for his disease.

With regard to the mature minor issue, the court once again simply applied the existing law and considered expert testimony as to whether Tyrell had capacity to make his own medical decisions. In concluding that he did not have decisional capacity, the court noted that Tyrell was strongly influenced by his father and that he was unable to give an example of any occasion where he had disobeyed his parents. In addition to Tyrell's father's influence, the court thought it significant that Tyrell had not been able to obtain information from the medical team on his own; all of the information had been "screened" by Tyrell's father. Given the situation, it is hardly surprising that the court found Tyrell incapable of giving or refusing consent to medical treatment. One of the most important aspects of medical decisions is having accurate information on which to base such decisions-- this is made explicit by the law on informed consent. An individual who does not have the information with which to make a decision surely cannot make an autonomous decision, no matter what their age or maturity level. In this case, the lack of information was compounded by the fact of Tyrell's apparent strong reluctance to disobey his father. In these circumstances, the court's finding on the mature minor issue is the only appropriate one; indeed, it is the only finding open to the court on these facts.

Conclusion

For better or for worse, cases like this one often come to symbolize ideas or arguments that are not central to the legal issues or to the decision being made. In this instance, the case was played in the media as a clash between a parental right to choose alternative treatment and the court's "defense" of traditional medicine. Criticisms have also been made of the decision's obvious biasin favour of life, as contrasted with a more nuanced approach that would allow for the possibility that not everyone sees life and death issues from the same perspective. While these comments and critiques are an essential aspect of both the ethical discourse around these issues and the societal debate which helps to inform and shape the relevant legal rules, they have no role in the exercise of judicial discretion in cases such as this one.

Despite my assertion that the legal outcome was appropriate, I, like many others, find the idea of the practical application of this decision very troubling. What the Dueck case does well is highlight at least one clear difference between the law and ethics: the law identifies basic acceptable human behavior in society on pain of legal penalty; ethics, or the examination of what is morally justifiable conduct, on the other hand, seeks to help people to determine the right thing to do in a particular situation. In other words, ethics often requires behavior that exceeds what is required by the law.

References

1. E. Nelson, "The Fundamentals of Consent" in J. Downie & T. Caulfield, eds., Canadian Health Law and Policy (Toronto: Butterworths, 1999)100-116.
2. Malette v. Shulman (1990), 72O.R. (2d) 417 (C.A).
3. E.I. Picard & G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 3d ed. (Toronto: Carswell, 1996) at 71-79.
4. J. Gilmour, "Minors" in J. Downie &T. Caulfield, eds., Canadian Health Law and Policy (Toronto: Butterworths, 1999) 178-215.
5. E. Nelson, K. Haymond & M. Sidarous, "Selected Legal Issues Relevant to Pediatric Genetics" (1998) 6Health L. J. 83-114.
6. Re T.D.D. (1999), 171 D.L.R. (4th) 761(Q.B.).
7. B.(R.) v. Childrens' Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
8. Child and Family Services Act, S.S. 1989-90, c.C-7.2.
9. B. Sneiderman, J.C. Irvine & P.H. Osborne, Canadian Medical Law: An Introduction for Physicians, Nursesand other Health Care Professionals, 2d ed. (Toronto: Carswell,1995) at 499-500.
10. M. Rogan, "Acts of Faith" Saturday Night (June, 1999).

JDHEC/PHEN/SJCEC Post-Conference

PHEN, in conjunction with the John Dossetor Health Ethics Centre and the St. Joseph's College Ethics Centre, is pleased to announce a Post-Conference, to follow the 1999 CBS Conference, dealing with issues of resource allocation at the end of life. Keynote speakers include Johannes van Delden from the University of Utrecht, Martin MacKneally of the University of Toronto, Patricia Rodney of the University of Victoria and Steven Lewis, formerly of Health Services Utilization with the Government of Saskatchewan.

This Post-Conference is free to all PHEN members. For more information, please contact PHEN's Northern Alberta Office or visit www.phen.ab.ca.  

PHEN's Web Site

Have you checked out the PHEN Web Site lately? Recent updates include:

• Board & Staff: New board and staff pictures and/or bios updated as of August 1999.

• News Flash: Updated monthly announcements that include archived past announcements.

• Membership & Society: New information on PHEN bylaws, the annual conference, and the Executive Director's report.

• Annual Conference: Details of the Network's May 1999 conference.

• Jobs & Volunteer Info: New posting for student research volunteers.

• Links: New links to health ethics internet resources - updated and added on a continuous basis.

Announcements

• PHEN is pleased to announce that four new modules have been added to the list of topics on which the coordinators would be pleased to offer workshops. These modules, on Ethics and Mental Health, Ethics and Physical Disability, Ethics and Community Care , and Organizational Ethics, are now available for presentation. Please contact either Network office for more details on booking a presentation.

• A reminder that the next deadline for applications to PHEN's User Fund for individuals interested in attending health ethics-related conferences or pursuing other education activities in health ethics is September 1,1999.

• PHEN was fortunate to have had the help of four research assistants for the summer. As the summer is drawing to a close, it is time for these students to return to their academic work. We would like to thank Joanne Ogaranko and Jennifer Storms, both of whom worked in the Northern Alberta Office, as well as Frances Brennan and RebeccaPooler-Lunse, who worked in the Southern Alberta Office, for bringing their diligent efforts and their friendly and cheerful personalities to the Network's activities. We wish them continued success in their studies and other life endeavours.

Views offered in this article are those of the author and do not necessarily reflect the position of the Provincial Health Ethics Network.