Next Up: A Proposal for Values-Based Law Reform on Unilateral With-Holdings and Withdrawal of Potentially Life-Sustaining Treatment
Health Law and Policy, legalization of assisted dying, law reform, implementation, Canadian end of life law and policy
As the legalization of assisted dying shifts from a project for law reform to one ofimplementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateralwithholding and withdrawal of potentially life-sustaining treatment. What should happenwhen the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policyno doubt includes many other issues, this is an urgent and immediate horizon issue forCanada as well as a number of other countries (e.g., the United States, Australia, and New Zealand) and a more distant horizon (but inevitable) issue for many other countriesas they move beyond the debate of whether to even withholding or withdrawal of potentially life-sustaining treatment (e.g., South Korea).In this paper, we attempt to take a step back from the drama and vitriol surroundingconflict that can arise when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should. We suggest and model anapproach to law and policy reform in this area. To that end, we begin with a review ofwhat is known about what is going on in relation to unilateral withholding andwithdrawal of treatment (without the consent or knowledge of the patient or patientssubstitute decision-maker) demonstrating that: it is happening; it is controversial; it is being challenged in courts; and it is not being approached by the law in the same way inevery country (or indeed, even in the same way within a country). We then present a process for pursuing law reform, exploring Canada as a case study, to provide a modelstrategy for approaching law reform in other countries and to advance the project of lawreform in Canada. To that end, we reflect on the fundamental values that should underpina legal framework for decision-making on whether potentially life-sustaining treatmentshould be withheld or withdrawn. These values and the ways to balance these valuesagainst each other are drawn from the constitution, legislation, the common law,conventions and treaties that have been ratified by Canada, and “fundamental values of Canadian society” within which the ethical debate about the unilateral withholding andwithdrawal of potentially life-sustaining treatment is situated. We then develop a proposal for how the law could be reformed such that it will more closely align with thefundamental values it is supposed to serve. We hope that in the end, this proposal mighthelp us to move forward from friction to accord and, ultimately, to a future of better carefor both the living and the dying.
Jocelyn Downie, Lindy Willmott & Ben White, “Next Up: A Proposal for Values-Based Law Reform on Unilateral With-Holdings and Withdrawal of Potentially Life-Sustaining Treatment” (2016) 54:3 ALR 803-829.