Applications to the Consent and Capacity Board to resolve end of life conflict are not new. Typically, patients are critically ill and dependent on various life support systems in the ICU before a physician (or group of physicians) is willing to challenge a substitute decision-maker that the level of intervention is not in the best interests of the patient, or representative of their prior expressed wishes. Following the first CCB application for an end-of-life case in 2003, Re(HJ), physicians starting using the CCB when there was no other good options available, often after months of disagreement. Between 2009-2013, physicians brough 30 of these cases to the CCB, indicating a growing interest and understanding of the CCB process (and various applications). In late 2013, however, the Supreme Court of Canada chose to ignore the common law question of whether or not physicians were obligated to provide treatments they felt to be ineffective or futile, instead narrowly ruling on the applicability of the Healthcare Consent Act of Ontario in the Rasouli case. In theory, the Rasouli should have led to more applications to the CCB, but instead they plummeted. Critical Care docs in particular quietly expressed they felt let down by the legal system, especially as more and more CCB cases were being appealed as a delay tactic effectively condemning patients to suffer needlessly – the primary reason for applying to the CCB in the first place.
It is then quite significant what has been happening this past year. Out of nowhere, there seems to be renewed interest in making applications to the CCB. I take this to be a positive sign, but there remain reasons for concern as well. Three of these cases were dismissed for reasons I won't comment on here (but you can read). Physicians should be learning from previous cases how to use the CCB so that they aren't taking cases unlikely to succeed – but that doesn't appear to be happening. Prior to Rasouli, physicians were successful* approximately 80% of the applications they filed wiht the CCB. After Rasouli, that number has fallen to roughly 50%. Of course, there could be more going on that physicians identifying the right cases and knowing how to bring them… (I will expand on this in a future post)
*The idea that an application to the CCB is a "success" has been criticized by some as a confirmation of the paternalistism at play in critical care units. They would point to the the CCB as a neutral 3rd party able to resolve of genuine uncertainty (where best interests are in question). The problem is that physicians tend not to use the CCB as a mechanism to "steamroll" families where genuine uncertainty exists. Careful reading of the cases brought forward demonstrates extreme restraint on behalf of medical teams, bringing applicaitons only in the most egrigious cases, after repeated and lengthy compromises along the way, where they feel patients are genuinely suffering for no demonstrable benefit.