THE LAW * QUESTIONS JURIDIQUES
Jehovah's Witnesses and te tansfusion debate. "We are not asking for the right to die"
Bill Trent A t 1:15 pm on June 30, 1979, Georgette Malette, then 57, was rushed into the emergency room at the Kirkland and District Hospital in Kirkland Lake, Ont. The Rouyn, Que., woman was unconscious and bleeding from the nose and mouth, the victim of a head-on highway collision that had taken the life of her husband. There was nothing special there are about the accident hundreds like it in Canada every year. However, this one would set the stage for legal suits and countersuits that would eventually lead to a landmark court ruling that defined in specific terms the roles and rights of physicians and patients in the often ill-defined area of consent. Dr. David Shulman, a family physician who worked some shifts in the hospital's Emergency Department, performed the initial examination, which revealed severe head and facial injuries. He concluded that the woman was suffering incipient shock because of loss of blood and ordered intravenous glucose, to be followed by Ringer's lactate. He was following standard procedure - if his paBill Trent is a freelance writer living in Lanark, Ont. 770
CAN MED ASSOC J 1991; 144 (6)
tient didn't show a significant increase in blood pressure after the Ringer's was administered, a transfusion would be indicated. It was a straightforward medical situation until nurses came across a card in the woman's purse that identified her as a Jehovah's Witness and stated her wish not to be given a blood
"I fully realize the implications of this position but I have resolutely decided to obey the Bible command: 'Keep abstaining ... from blood. '" statement on card carried by Georgette Malette transfusion under any circumstances. The card, signed but not dated nor witnessed, was in French. Translated, it stated: "As one of Jehovah's Witnesses with firm religious convictions, I request that no blood or blood pro-
ducts be administered to me under any circumstances. I fully realize the implications of this position but I have resolutely decided to obey the Bible command: 'Keep abstaining ... from blood.' (Acts 15: 28, 29). However, I have no religious objection to [the use ofl nonblood alternatives, such as dextran, peripheral vein plasma, Ringer's lactate or saline solution." Shulman, along with hospital officials, was advised of the card. By mid-afternoon Malette's condition had deteriorated. Her blood pressure had dropped markedly, her respiration had become distressed and her level of consciousness had lowered. She was bleeding and judged critically ill and Shulman decided that transfusions were needed to save her life and he proceeded with them. In a second examination, a surgeon concurred: to avoid irreversible shock, it was vital to maintain the patient's blood volume. Shulman would later tell the court that he believed it was his professional responsibility to transfuse his patient, despite the card. He had not been able to convince himself that the message on the card truly reflected the woman's wishes. Some hours later Georgette Malette's daughter arrived at the hospital, expressing adamant op-
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position to the transfusions. She signed a prohibition statement against them and a document releasing doctors from liability. Shulman, however, proceeded with the transfusions. By midnight the patient's condition had stabilized enough to permit her transfer by air ambulance to the Toronto General Hospital, where no further transfusions were done. She made a good recovery and, on Aug. 11, 1979, was discharged. That, however, was not the end of the story. In June 1980 Georgette Malette launched a suit against Shulman, the hospital, its executive director and four nurses, alleging that the blood transfusions had constituted negligence and assault and battery and had subjected her to religious discrimination. The court dismissed the action against all defendants except Shulman. It ruled that the Jehovah's Witness card his patient had carried validly restricted his right to transfuse her; hence, giving
transfusions constituted a battery against her. He was not found liable for any negligence in the treatment he provided. The plaintiff was awarded $20 000 in damages, but no costs. The court ruled that Shulman had acted "promptly, professionally and was well motivated throughout" and had managed the case "in a confident, careful and conscientious manner." Further, his decision to administer blood was found to be an honest exercise of his professional judgement that may well have been responsible for saving her life. Liability was imposed because he had "tortiously violated" his patient's rights over her own body by acting contrary to her no-blood card and administering unauthorized transfusions. Shulman subsequently took this lower-court judgement to the appellate division of the Supreme Court of Ontario, and Malette cross-appealed the original judge's dismissal of the action against the
hospital and his order concerning costs. The appeals were heard in October 1989 and a judgement was handed down in April 1990. In his judgement, written on behalf of the three-member appellate panel, Mr. Justice Sydney Robins made clear that a doctor is not free to disregard instructions made in advance, any more than he would be free to ignore instructions given at the time of an emergency. He wrote: "The principles of self-determination and individual autonomy compel the conclusion that the patient may reject blood transfusions even if harmful consequences may result, and even if the decision is generally regarded as foolhardy. Her decision in this instance would be operative after she lapsed into unconsciousness, and the doctor's conduct would be unauthorized. To transfuse a Jehovah's Witness in the face of her explicit instructions to the contrary would, in my opinion, violate her right to control her own body and show disre-
Allergies:
MEDICAL DIRECTIVE/RELEASE
Current medication:
, direct that no blood I, transfusions be given to me, even though physicians deem such vital to my health or my life. I accept nonblood expanders (such as Dextran, saline or Ringer's solution, hetastarch). I years old and execute this document of am my own initiative. It accords with my rights as a patient and my beliefs as one of Jehovah's Witnesses. The Bible commands: "Keep abstaining ... from blood." (Acts 15:28, 29) This is, and has years. I direct been, my religious stand for that I be given no blood transfusions. I accept any added risk this may bring. I release doctors, anesthesiologists, hospitals and their personnel from responsibility for any untoward results caused by my refusal, despite their competent care. In the event that I lose consciousness, I authorize either witness below to see that my decision is upheld.
*lu a
pru eil-b. v
IN CASE OF EMERGENCY, PLEASE CONTACT: Name
Phone
Address
MEDICAL DOCUMENT MdEDICAL(seeDOCUIMENT inside) NO BLOOD
Date
Signature
Witness
Relationship
Phone
Witness
Relationship
Phone
Printed in Canada
CAN MED ASSOC J 1991; 144 (6)
771
"It appears some physicians were cheesed off because the CMPA didn't pursue the fight in court. "
-Dr. Normand Belliveau, CMPA president spect for the religious values by which she has chosen to live her life." Concerning the physician's liability, he wrote: "The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient, or the patient's dependants, when he honours the Jehovah's Witness card and respects the patient's right to control her own body in accordance with the. dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah's Witnesses faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they, nor their dependants, can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for these consequences is entirely theirs and not the doctor's." Robins said he could find no basis upon which the justices could interfere with the trial judge's decision to award in favour of the plaintiff. He also found no basis for holding the institution liable for acts of the doctor and the cross-appeal against the lower court's ruling on costs was also ruled without merit. The appeals 772
CAN MED ASSOC J 1991; 144 (6)
were then dismissed, with costs for both sides. In retrospect, for the principal players, June 30, 1979, had been a bad day in Kirkland Lake. For Georgette Malette, it had been an emotional experience. She had lost not only her husband but also, she believed, some of her religious purity. At one point her daughter told a Toronto Star reporter that when her mother realized she had been given blood, she felt "dirty, like she had been raped." For Shulman, it had been the agony of putting his professional knowledge and skills to work to save a woman's life, only to be found guilty for doing so. How could he know that his patient had not changed her religious beliefs? How could he know if she had signed the no-blood card without family or peer pressure? Had she been properly informed about the risks? There were too many open-ended questions. Shulman, who now practises family medicine in Uxbridge, Ont., and works in anesthesia at the Markham Stouffville Hospital in Markham, told CMAJ in a recent telephone conversation that he could add nothing to what he had already said in court. "I don't think my views have changed since the trial," he says. "I'm very appreciative of the support other
doctors have given me, at the trial and since." Dr. Normand Da Sylva, the CMA's director of professional affairs, understands Shulman's concerns. "There are physicians who will tell you that very often patients in this kind of situation do not necessarily espouse the philosophy of the group to which they belong," he points out. He cites the case of a woman who carries a medical directive because her family encourages her to, but in private wishes she did not. "The presence of a card is not seen by many physicians as a definite authorization, so they're stuck with having to decide whether this is really the wish of the patient, or whether the patient is playing along with a group," he says. "There is no question that, regardless of legal implications, some physicians will consider it their duty to do what they perceive as the ethical thing." Da Sylva raises the case of a physician who follows a patient's instructions to withhold treatment, and the patient dies. "A member of the family says to the doctor, 'Look, the patient didn't mean that. You didn't have a real consent because it was made several months, or even years, beforehand. It is not a valid consent and, therefore, you should have gone ahead and acted on your ethical principles.' It's still a very uncharted area and there are various possible scenarios. I don't think anybody has the answers and I don't think we've heard the last of this." Da Sylva cites a parallel situation. "Several years ago, before the Criminal Code was amended regarding blood samples for alcohol, we argued that persons applying for driver's licences should, at the same time, sign a consent that blood be taken from them [when required] and our legal advice was that such a consent, given long before the event, might be considered invalid. So, until a particular
m
case comes up we don't know which way the courts might go. An Appeal Court ruling is not necessarily the end of it all." Dr. Stuart Lee, secretarytreasurer of the Canadian Medical Protective Association, says the CMPA receives relatively few calls from physicians seeking advice about withholding treatment. "There is no piece of blanket advice, except that an adult of sound mind is perfectly free to refuse recommended management," he says. "Whatever else might be said would depend on the facts of the case." After the Shulman decision was handed down, some doctors were reported to be unhappy with the outcome. "It appears some physicians were cheesed off because the CMPA didn't pursue the fight in court," says Dr. Normand Belliveau of Montreal, the association president. "Somebody said the CMPA was full of old senators, or something like that, a bunch of white-haired old men who weren't facing reality. Well, some of us are not young but we have a lot of young people around
what's prudent," he says. "Very often these are critical times and we don't have the chance to discuss the pros and cons, so it puts us in an awkward position. We may feel we should pursue one avenue, yet the patient and the family may decide this isn't the way to go. A lot of us feel uncomfortable with that at times and we're only now coming to terms with the fact that we have to recognize the patient's wishes, whether we agree with them or us. not." "The law is quite clear on this He admits that cases involvand we couldn't find any error in ing Jehovah's Witnesses raise serilaw in the judgement, so we had ous issues. "If you couldn't reach no real basis for appeal. If we feel the family and all you had to go we have a leg to stand on, we'll go on was a card, I think it would be all the way to the Supreme Court a very difficult decision and the to defend our doctors but in this temptation might be to treat the case, we just didn't have that leg patient and not the card. Patients to stand on, neither in conscience have been known to change their nor in law." minds, having signed pieces of Dr. Jan Ahuja has more than paper as we all do from time to a passing interest in this entire time. For most of us it would be issue - the chief of emergency an ethical dilemma, but I think we medicine at Ottawa's Civic Hospi- would tend to err on the side of tal and past president of the Cana- common sense, if one can use that dian Association of Emergency term, and treat the patient." Physicians has witnessed many An alternative to family conlife-and-death situations. tact is contact with another physi"Those of us who practise cian. "There isn't time to call legal emergency medicine and deal authorities but very often a secwith patients whom we have not ond doctor can provide an objecmet before must take the individ- tive view," Ahuja says. "Those of ual's, or the family's, advice and us who are in big cities have a treat the person according to little more opportunity for that, of 774
CAN MED ASSOC J 1991; 144 (6)
"Our message to doctors is simple. We want to work with them and we're not out to get them. "
Walter Graham, Jehovah 's Witness -
spokesman course. If you're alone, a country family doctor and perhaps the only physician for miles around, then you just have to go on your best instincts and try to recognize the patient's best interests."
Mr. Justice David Marshall, a physician-lawyer who serves as executive director of the Canadian Judicial Centre, the continuing education arm of the Canadian judiciary, calls the Malette decision an "important development in medical law and the law of consent." He says the law regarding consent has seen great change in recent years. "Twenty years ago patients really thought they had to do what their doctors told them to do but the law of consent has turned that right upside down, so that now physicians can't do anything to them without their consent.
"It's part of the evolution of our society. People are asking a lot more questions. There are no sacred cows in society any more.
People don't have faith in anybody. They want to seek out and try for themselves. There is a general trend toward people wanting to take control of their own situations." Marshall has mixed feelings about this. "Sick people don't always want to know the hard, cold reality of their medical condi-
m
tions. The law of consent is becoming so strict that it may cause doctors to be somewhat inhumane, feeling obliged to explain every possible side effect that may occur which, of course, might scare the patient to death, or leave him or her at least feeling very uncomfortable." For Eike-Henner Kluge, director of the CMA's Department of Ethics and Legal Affairs, the Malette judgement is an important one for physicians because it states very clearly the conditions under which they may withhold treatment, even if it is medically indicated. If a competent patient has given clear and explicit instructions about withholding a specific type of treatment, he says, the physician now has a duty not to provide it. This doesn't mean that a doctor may not use personal judgement when such a decision about supplying treatment must be made. It only applies in clear cases where there are explicit instructions about a specific kind of treatment. If there are no instructions it becomes a matter of medical judgement. "This may seem negative since physicians will be under not only ethical but also legal obligation to restrain themselves from doing certain procedures that are available to them," says Kluge. "It would be a matter of going against medical judgement in certain cases. On the other hand, it's a positive thing because it makes it very clear that doctors cannot be held liable, and this had been unclear in the past. For years, the danger of suit had hung over their heads like a sword. Now, no one can sue physicians if they follow the autonomous or competent patient's explicit instructions. I think, in the end, that outweighs everything else." How does a doctor reconcile the traditional medical commitment to save life with the ethical and legal necessity of withholding treatment? "There isn't an obliga-
tion to save life," says Kluge. "There is an obligation to do something that is medically appropriate in the circumstances." He refers to Section 5 of the CMA Code of Ethics: "An ethical physician will recognize that a patient has the right to accept or reject any physician and any medical care recommended." In general, says Kluge, the judgement applies only to adults and to those deemed to be adults, but this can cause problems for physicians. For instance, at what stage is a child a competent, mature minor? Kluge cites the case of a 12-year-old who was judged to be a mature minor in Ontario, and thus at liberty to refuse blood transfusions. "The law says that, at 12, you're not mature," he explains. "In an emergency, the presumption for children is always in favour of life if there is a reasonable hope. But this was not an emergency. There was time and the physician and hospital decided to take the appropriate legal steps. They contacted a welfare agency and a court hearing was arranged. The court, convened right in the child's hospital
room, listened to various testimony and finally concluded that, though she was only 12, she knew exactly what she was doing, and so was competent to refuse transfusions." As it turned out, she died. To understand the case from the Jehovah's Witnesses' perspective is to understand the depth of their spiritual commitment. Canada's 200 000 Witnesses are deeply religious and believe that blood transfusions are forbidden to them by at least three Bible passages: "Only flesh with its soul, its blood, you must not eat," appears in Genesis; "[You must] pour its blood out and cover it with dust," is found in Leviticus; "Abstain from fornication and from what is strangled and from blood," is in Acts. "It's a religious conviction and Witnesses would abide by this," says Walter Graham, executive director of medical research services for Jehovah's Witnesses in Canada. "It's a part of the faith and all of our people carry [noblood] cards. We also have a children's card." While their objection to blood is rooted in religion, Graham says there are medical reasons for avoiding transfusions. "That's why we've developed this department, so we can give our people and physicians who treat them the best research in nonblood treatment," he says. "There are alternatives but we don't expect local doctors to be up on them all, so we've put together an organization that, as fast as you can telephone, can get information on alternatives to any treatment that involves blood." [The phone number is (416)873-2273
-Ed.]
Ahuja: very difficult decision
Several physicians are Witnesses. One, Dr. Carla Ockley of Toronto, looks after staff at Witness headquarters in Georgetown, Ont., where many of the 300 employees also live. "From this office," says Graham, "medical staff CAN MED ASSOC J 1991; 144 (6)
775
.M
members have gone across the country and the continent to interview doctors. We've gone to the US and talked to leaders in the field about how they feel about nonblood operations, how they can be done and whether we can expect doctors to be able to do certain procedures." The medical literature now pays more attention to nonblood management because of the AIDS scare, so there are more doctors willing to do it. "We're finding that it's becoming less of a religious issue and more of a medical one, so our message to doctors is that if they can't seem to handle a case without blood, contact our medical liaison committees." Peter Wyssen, director of the liaison committees for Canada, says a growing segment of the
enced in alternative-management procedures and techniques, up-todate medical abstracts, blood-free hospitals and surgical teams in both the US and Canada. They are thus able to accommodate Witnesses wanting nonblood management. "Jehovah's Witnesses are not asking for the right to die," says Wyssen. "They are asking for the right to choose. When they say no blood, they are not saying no treatment. They want and appreciate good medical care." Last fall the Witnesses sought formal Ontario Medical Association (OMA) endorsement of a five-point treatment protocol that would serve as a guide for physicians and health care facilities. The protocol calls for doctors to: * Pursue nonblood medical medical community is becoming management and treat the patient conservative in administering without using homologous blood. blood and blood products. He re* Consult with other doctors fers to the 1988 US Report of the experienced in nonblood managePresidential Commission on the ment at the same facility and treat Human Immunodeficiency Virus without using homologous blood. (HIV) Epidemic, which states that * Contact the Witnesses' informed consent for transfusion local medical liaison committee to should include an explanation of locate experienced and cooperathe risks involved, including the tive doctors at other facilities for possibility of HIV infection, and consultation on medical care. information about appropriate alternatives to homologous blood therapy. These specifically include predeposited autologous blood, intraoperative autologous transfu-
sion, hemodilution techniques and postoperative collection. Wyssen says alternative nonblood management techniques provide the high-quality care Jehovah's Witnesses are seeking and satisfy the legal issues raised. In 1982, the Witnesses began developing an information service that has proven highly successful. Based in 129 key North American cities, a network of consultants is actively assisting patients and physicians seeking alternatives to traditional blood transfusion therapy. They have ready access to a database that includes the names of more than 7000 doctors experi776
CAN MED ASSOC J 1991; 144 (6)
* If necessary, transfer the patient to the care of an experienced and cooperative doctor or facility before the patient's condition deteriorates. * In a rare situation where such a physician is not available locally and court advice is deemed necessary, the patient, the parents or the legal guardian should be notified as soon as possible of such intended action. This will allow the court to hear both sides and weigh all factors, including nonblood management of the case. The wishes of a mature minor should be respected. "I thought the points were sensible," says Dr. Edward Moran, the OMA's general secretary, "but I don't regard myself as being competent to give a learned opinion. I shared the protocol with a couple of people who work with me and they had the same feelings I did." Moran says he gave the Witnesses a commitment to look into the possibility of getting OMA approval for the protocol. "We'll send it to the appropriate committee to develop a recommendation that will come back to the board," he says. The Witnesses are pleased with this type of response. Graham, who says he appreciates some of the problems the transfusion issue raises for doctors, says a physician or surgeon faced with a patient likely to die on the operating table may try anything to save a life.
Moran: sensible points
"The problem we've run into in all such cases is that the doctor is programmed to go in a certain way and then, when something different comes up, it's difficult to make the transition. That's why we thought the liaison committee people would be such a help." But Graham wants to be very clear: "Our message to doctors is simple. We want to work with them and we're not out to get them. We don't like litigation. We need them."u
Jehovah's Witnesses and te tansfusion debate. "We are not asking for the right to die"
Bill Trent A t 1:15 pm on June 30, 1979, Georgette Malette, then 57, was rushed into the emergency room at the Kirkland and District Hospital in Kirkland Lake, Ont. The Rouyn, Que., woman was unconscious and bleeding from the nose and mouth, the victim of a head-on highway collision that had taken the life of her husband. There was nothing special there are about the accident hundreds like it in Canada every year. However, this one would set the stage for legal suits and countersuits that would eventually lead to a landmark court ruling that defined in specific terms the roles and rights of physicians and patients in the often ill-defined area of consent. Dr. David Shulman, a family physician who worked some shifts in the hospital's Emergency Department, performed the initial examination, which revealed severe head and facial injuries. He concluded that the woman was suffering incipient shock because of loss of blood and ordered intravenous glucose, to be followed by Ringer's lactate. He was following standard procedure - if his paBill Trent is a freelance writer living in Lanark, Ont. 770
CAN MED ASSOC J 1991; 144 (6)
tient didn't show a significant increase in blood pressure after the Ringer's was administered, a transfusion would be indicated. It was a straightforward medical situation until nurses came across a card in the woman's purse that identified her as a Jehovah's Witness and stated her wish not to be given a blood
"I fully realize the implications of this position but I have resolutely decided to obey the Bible command: 'Keep abstaining ... from blood. '" statement on card carried by Georgette Malette transfusion under any circumstances. The card, signed but not dated nor witnessed, was in French. Translated, it stated: "As one of Jehovah's Witnesses with firm religious convictions, I request that no blood or blood pro-
ducts be administered to me under any circumstances. I fully realize the implications of this position but I have resolutely decided to obey the Bible command: 'Keep abstaining ... from blood.' (Acts 15: 28, 29). However, I have no religious objection to [the use ofl nonblood alternatives, such as dextran, peripheral vein plasma, Ringer's lactate or saline solution." Shulman, along with hospital officials, was advised of the card. By mid-afternoon Malette's condition had deteriorated. Her blood pressure had dropped markedly, her respiration had become distressed and her level of consciousness had lowered. She was bleeding and judged critically ill and Shulman decided that transfusions were needed to save her life and he proceeded with them. In a second examination, a surgeon concurred: to avoid irreversible shock, it was vital to maintain the patient's blood volume. Shulman would later tell the court that he believed it was his professional responsibility to transfuse his patient, despite the card. He had not been able to convince himself that the message on the card truly reflected the woman's wishes. Some hours later Georgette Malette's daughter arrived at the hospital, expressing adamant op-
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position to the transfusions. She signed a prohibition statement against them and a document releasing doctors from liability. Shulman, however, proceeded with the transfusions. By midnight the patient's condition had stabilized enough to permit her transfer by air ambulance to the Toronto General Hospital, where no further transfusions were done. She made a good recovery and, on Aug. 11, 1979, was discharged. That, however, was not the end of the story. In June 1980 Georgette Malette launched a suit against Shulman, the hospital, its executive director and four nurses, alleging that the blood transfusions had constituted negligence and assault and battery and had subjected her to religious discrimination. The court dismissed the action against all defendants except Shulman. It ruled that the Jehovah's Witness card his patient had carried validly restricted his right to transfuse her; hence, giving
transfusions constituted a battery against her. He was not found liable for any negligence in the treatment he provided. The plaintiff was awarded $20 000 in damages, but no costs. The court ruled that Shulman had acted "promptly, professionally and was well motivated throughout" and had managed the case "in a confident, careful and conscientious manner." Further, his decision to administer blood was found to be an honest exercise of his professional judgement that may well have been responsible for saving her life. Liability was imposed because he had "tortiously violated" his patient's rights over her own body by acting contrary to her no-blood card and administering unauthorized transfusions. Shulman subsequently took this lower-court judgement to the appellate division of the Supreme Court of Ontario, and Malette cross-appealed the original judge's dismissal of the action against the
hospital and his order concerning costs. The appeals were heard in October 1989 and a judgement was handed down in April 1990. In his judgement, written on behalf of the three-member appellate panel, Mr. Justice Sydney Robins made clear that a doctor is not free to disregard instructions made in advance, any more than he would be free to ignore instructions given at the time of an emergency. He wrote: "The principles of self-determination and individual autonomy compel the conclusion that the patient may reject blood transfusions even if harmful consequences may result, and even if the decision is generally regarded as foolhardy. Her decision in this instance would be operative after she lapsed into unconsciousness, and the doctor's conduct would be unauthorized. To transfuse a Jehovah's Witness in the face of her explicit instructions to the contrary would, in my opinion, violate her right to control her own body and show disre-
Allergies:
MEDICAL DIRECTIVE/RELEASE
Current medication:
, direct that no blood I, transfusions be given to me, even though physicians deem such vital to my health or my life. I accept nonblood expanders (such as Dextran, saline or Ringer's solution, hetastarch). I years old and execute this document of am my own initiative. It accords with my rights as a patient and my beliefs as one of Jehovah's Witnesses. The Bible commands: "Keep abstaining ... from blood." (Acts 15:28, 29) This is, and has years. I direct been, my religious stand for that I be given no blood transfusions. I accept any added risk this may bring. I release doctors, anesthesiologists, hospitals and their personnel from responsibility for any untoward results caused by my refusal, despite their competent care. In the event that I lose consciousness, I authorize either witness below to see that my decision is upheld.
*lu a
pru eil-b. v
IN CASE OF EMERGENCY, PLEASE CONTACT: Name
Phone
Address
MEDICAL DOCUMENT MdEDICAL(seeDOCUIMENT inside) NO BLOOD
Date
Signature
Witness
Relationship
Phone
Witness
Relationship
Phone
Printed in Canada
CAN MED ASSOC J 1991; 144 (6)
771
"It appears some physicians were cheesed off because the CMPA didn't pursue the fight in court. "
-Dr. Normand Belliveau, CMPA president spect for the religious values by which she has chosen to live her life." Concerning the physician's liability, he wrote: "The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient, or the patient's dependants, when he honours the Jehovah's Witness card and respects the patient's right to control her own body in accordance with the. dictates of her conscience. The onus is clearly on the patient. When members of the Jehovah's Witnesses faith choose to carry cards intended to notify doctors and other providers of health care that they reject blood transfusions in an emergency, they must accept the consequences of their decision. Neither they, nor their dependants, can later be heard to say that the card did not reflect their true wishes. If harmful consequences ensue, the responsibility for these consequences is entirely theirs and not the doctor's." Robins said he could find no basis upon which the justices could interfere with the trial judge's decision to award in favour of the plaintiff. He also found no basis for holding the institution liable for acts of the doctor and the cross-appeal against the lower court's ruling on costs was also ruled without merit. The appeals 772
CAN MED ASSOC J 1991; 144 (6)
were then dismissed, with costs for both sides. In retrospect, for the principal players, June 30, 1979, had been a bad day in Kirkland Lake. For Georgette Malette, it had been an emotional experience. She had lost not only her husband but also, she believed, some of her religious purity. At one point her daughter told a Toronto Star reporter that when her mother realized she had been given blood, she felt "dirty, like she had been raped." For Shulman, it had been the agony of putting his professional knowledge and skills to work to save a woman's life, only to be found guilty for doing so. How could he know that his patient had not changed her religious beliefs? How could he know if she had signed the no-blood card without family or peer pressure? Had she been properly informed about the risks? There were too many open-ended questions. Shulman, who now practises family medicine in Uxbridge, Ont., and works in anesthesia at the Markham Stouffville Hospital in Markham, told CMAJ in a recent telephone conversation that he could add nothing to what he had already said in court. "I don't think my views have changed since the trial," he says. "I'm very appreciative of the support other
doctors have given me, at the trial and since." Dr. Normand Da Sylva, the CMA's director of professional affairs, understands Shulman's concerns. "There are physicians who will tell you that very often patients in this kind of situation do not necessarily espouse the philosophy of the group to which they belong," he points out. He cites the case of a woman who carries a medical directive because her family encourages her to, but in private wishes she did not. "The presence of a card is not seen by many physicians as a definite authorization, so they're stuck with having to decide whether this is really the wish of the patient, or whether the patient is playing along with a group," he says. "There is no question that, regardless of legal implications, some physicians will consider it their duty to do what they perceive as the ethical thing." Da Sylva raises the case of a physician who follows a patient's instructions to withhold treatment, and the patient dies. "A member of the family says to the doctor, 'Look, the patient didn't mean that. You didn't have a real consent because it was made several months, or even years, beforehand. It is not a valid consent and, therefore, you should have gone ahead and acted on your ethical principles.' It's still a very uncharted area and there are various possible scenarios. I don't think anybody has the answers and I don't think we've heard the last of this." Da Sylva cites a parallel situation. "Several years ago, before the Criminal Code was amended regarding blood samples for alcohol, we argued that persons applying for driver's licences should, at the same time, sign a consent that blood be taken from them [when required] and our legal advice was that such a consent, given long before the event, might be considered invalid. So, until a particular
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case comes up we don't know which way the courts might go. An Appeal Court ruling is not necessarily the end of it all." Dr. Stuart Lee, secretarytreasurer of the Canadian Medical Protective Association, says the CMPA receives relatively few calls from physicians seeking advice about withholding treatment. "There is no piece of blanket advice, except that an adult of sound mind is perfectly free to refuse recommended management," he says. "Whatever else might be said would depend on the facts of the case." After the Shulman decision was handed down, some doctors were reported to be unhappy with the outcome. "It appears some physicians were cheesed off because the CMPA didn't pursue the fight in court," says Dr. Normand Belliveau of Montreal, the association president. "Somebody said the CMPA was full of old senators, or something like that, a bunch of white-haired old men who weren't facing reality. Well, some of us are not young but we have a lot of young people around
what's prudent," he says. "Very often these are critical times and we don't have the chance to discuss the pros and cons, so it puts us in an awkward position. We may feel we should pursue one avenue, yet the patient and the family may decide this isn't the way to go. A lot of us feel uncomfortable with that at times and we're only now coming to terms with the fact that we have to recognize the patient's wishes, whether we agree with them or us. not." "The law is quite clear on this He admits that cases involvand we couldn't find any error in ing Jehovah's Witnesses raise serilaw in the judgement, so we had ous issues. "If you couldn't reach no real basis for appeal. If we feel the family and all you had to go we have a leg to stand on, we'll go on was a card, I think it would be all the way to the Supreme Court a very difficult decision and the to defend our doctors but in this temptation might be to treat the case, we just didn't have that leg patient and not the card. Patients to stand on, neither in conscience have been known to change their nor in law." minds, having signed pieces of Dr. Jan Ahuja has more than paper as we all do from time to a passing interest in this entire time. For most of us it would be issue - the chief of emergency an ethical dilemma, but I think we medicine at Ottawa's Civic Hospi- would tend to err on the side of tal and past president of the Cana- common sense, if one can use that dian Association of Emergency term, and treat the patient." Physicians has witnessed many An alternative to family conlife-and-death situations. tact is contact with another physi"Those of us who practise cian. "There isn't time to call legal emergency medicine and deal authorities but very often a secwith patients whom we have not ond doctor can provide an objecmet before must take the individ- tive view," Ahuja says. "Those of ual's, or the family's, advice and us who are in big cities have a treat the person according to little more opportunity for that, of 774
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"Our message to doctors is simple. We want to work with them and we're not out to get them. "
Walter Graham, Jehovah 's Witness -
spokesman course. If you're alone, a country family doctor and perhaps the only physician for miles around, then you just have to go on your best instincts and try to recognize the patient's best interests."
Mr. Justice David Marshall, a physician-lawyer who serves as executive director of the Canadian Judicial Centre, the continuing education arm of the Canadian judiciary, calls the Malette decision an "important development in medical law and the law of consent." He says the law regarding consent has seen great change in recent years. "Twenty years ago patients really thought they had to do what their doctors told them to do but the law of consent has turned that right upside down, so that now physicians can't do anything to them without their consent.
"It's part of the evolution of our society. People are asking a lot more questions. There are no sacred cows in society any more.
People don't have faith in anybody. They want to seek out and try for themselves. There is a general trend toward people wanting to take control of their own situations." Marshall has mixed feelings about this. "Sick people don't always want to know the hard, cold reality of their medical condi-
m
tions. The law of consent is becoming so strict that it may cause doctors to be somewhat inhumane, feeling obliged to explain every possible side effect that may occur which, of course, might scare the patient to death, or leave him or her at least feeling very uncomfortable." For Eike-Henner Kluge, director of the CMA's Department of Ethics and Legal Affairs, the Malette judgement is an important one for physicians because it states very clearly the conditions under which they may withhold treatment, even if it is medically indicated. If a competent patient has given clear and explicit instructions about withholding a specific type of treatment, he says, the physician now has a duty not to provide it. This doesn't mean that a doctor may not use personal judgement when such a decision about supplying treatment must be made. It only applies in clear cases where there are explicit instructions about a specific kind of treatment. If there are no instructions it becomes a matter of medical judgement. "This may seem negative since physicians will be under not only ethical but also legal obligation to restrain themselves from doing certain procedures that are available to them," says Kluge. "It would be a matter of going against medical judgement in certain cases. On the other hand, it's a positive thing because it makes it very clear that doctors cannot be held liable, and this had been unclear in the past. For years, the danger of suit had hung over their heads like a sword. Now, no one can sue physicians if they follow the autonomous or competent patient's explicit instructions. I think, in the end, that outweighs everything else." How does a doctor reconcile the traditional medical commitment to save life with the ethical and legal necessity of withholding treatment? "There isn't an obliga-
tion to save life," says Kluge. "There is an obligation to do something that is medically appropriate in the circumstances." He refers to Section 5 of the CMA Code of Ethics: "An ethical physician will recognize that a patient has the right to accept or reject any physician and any medical care recommended." In general, says Kluge, the judgement applies only to adults and to those deemed to be adults, but this can cause problems for physicians. For instance, at what stage is a child a competent, mature minor? Kluge cites the case of a 12-year-old who was judged to be a mature minor in Ontario, and thus at liberty to refuse blood transfusions. "The law says that, at 12, you're not mature," he explains. "In an emergency, the presumption for children is always in favour of life if there is a reasonable hope. But this was not an emergency. There was time and the physician and hospital decided to take the appropriate legal steps. They contacted a welfare agency and a court hearing was arranged. The court, convened right in the child's hospital
room, listened to various testimony and finally concluded that, though she was only 12, she knew exactly what she was doing, and so was competent to refuse transfusions." As it turned out, she died. To understand the case from the Jehovah's Witnesses' perspective is to understand the depth of their spiritual commitment. Canada's 200 000 Witnesses are deeply religious and believe that blood transfusions are forbidden to them by at least three Bible passages: "Only flesh with its soul, its blood, you must not eat," appears in Genesis; "[You must] pour its blood out and cover it with dust," is found in Leviticus; "Abstain from fornication and from what is strangled and from blood," is in Acts. "It's a religious conviction and Witnesses would abide by this," says Walter Graham, executive director of medical research services for Jehovah's Witnesses in Canada. "It's a part of the faith and all of our people carry [noblood] cards. We also have a children's card." While their objection to blood is rooted in religion, Graham says there are medical reasons for avoiding transfusions. "That's why we've developed this department, so we can give our people and physicians who treat them the best research in nonblood treatment," he says. "There are alternatives but we don't expect local doctors to be up on them all, so we've put together an organization that, as fast as you can telephone, can get information on alternatives to any treatment that involves blood." [The phone number is (416)873-2273
-Ed.]
Ahuja: very difficult decision
Several physicians are Witnesses. One, Dr. Carla Ockley of Toronto, looks after staff at Witness headquarters in Georgetown, Ont., where many of the 300 employees also live. "From this office," says Graham, "medical staff CAN MED ASSOC J 1991; 144 (6)
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members have gone across the country and the continent to interview doctors. We've gone to the US and talked to leaders in the field about how they feel about nonblood operations, how they can be done and whether we can expect doctors to be able to do certain procedures." The medical literature now pays more attention to nonblood management because of the AIDS scare, so there are more doctors willing to do it. "We're finding that it's becoming less of a religious issue and more of a medical one, so our message to doctors is that if they can't seem to handle a case without blood, contact our medical liaison committees." Peter Wyssen, director of the liaison committees for Canada, says a growing segment of the
enced in alternative-management procedures and techniques, up-todate medical abstracts, blood-free hospitals and surgical teams in both the US and Canada. They are thus able to accommodate Witnesses wanting nonblood management. "Jehovah's Witnesses are not asking for the right to die," says Wyssen. "They are asking for the right to choose. When they say no blood, they are not saying no treatment. They want and appreciate good medical care." Last fall the Witnesses sought formal Ontario Medical Association (OMA) endorsement of a five-point treatment protocol that would serve as a guide for physicians and health care facilities. The protocol calls for doctors to: * Pursue nonblood medical medical community is becoming management and treat the patient conservative in administering without using homologous blood. blood and blood products. He re* Consult with other doctors fers to the 1988 US Report of the experienced in nonblood managePresidential Commission on the ment at the same facility and treat Human Immunodeficiency Virus without using homologous blood. (HIV) Epidemic, which states that * Contact the Witnesses' informed consent for transfusion local medical liaison committee to should include an explanation of locate experienced and cooperathe risks involved, including the tive doctors at other facilities for possibility of HIV infection, and consultation on medical care. information about appropriate alternatives to homologous blood therapy. These specifically include predeposited autologous blood, intraoperative autologous transfu-
sion, hemodilution techniques and postoperative collection. Wyssen says alternative nonblood management techniques provide the high-quality care Jehovah's Witnesses are seeking and satisfy the legal issues raised. In 1982, the Witnesses began developing an information service that has proven highly successful. Based in 129 key North American cities, a network of consultants is actively assisting patients and physicians seeking alternatives to traditional blood transfusion therapy. They have ready access to a database that includes the names of more than 7000 doctors experi776
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* If necessary, transfer the patient to the care of an experienced and cooperative doctor or facility before the patient's condition deteriorates. * In a rare situation where such a physician is not available locally and court advice is deemed necessary, the patient, the parents or the legal guardian should be notified as soon as possible of such intended action. This will allow the court to hear both sides and weigh all factors, including nonblood management of the case. The wishes of a mature minor should be respected. "I thought the points were sensible," says Dr. Edward Moran, the OMA's general secretary, "but I don't regard myself as being competent to give a learned opinion. I shared the protocol with a couple of people who work with me and they had the same feelings I did." Moran says he gave the Witnesses a commitment to look into the possibility of getting OMA approval for the protocol. "We'll send it to the appropriate committee to develop a recommendation that will come back to the board," he says. The Witnesses are pleased with this type of response. Graham, who says he appreciates some of the problems the transfusion issue raises for doctors, says a physician or surgeon faced with a patient likely to die on the operating table may try anything to save a life.
Moran: sensible points
"The problem we've run into in all such cases is that the doctor is programmed to go in a certain way and then, when something different comes up, it's difficult to make the transition. That's why we thought the liaison committee people would be such a help." But Graham wants to be very clear: "Our message to doctors is simple. We want to work with them and we're not out to get them. We don't like litigation. We need them."u
