Withholding and Withdrawing Life Support from Adults at Common Law

This article examines the circumstances in which life support can legally be withheld or withdrawn from adults. It analyzes the situation of patients who are both capable and incapable of making decisions, taking into account recent jurisprudence in Canada, the United States, and the United Kingdom. Where competence is not an issue, both law and modern medicine espouse a strong normative commitment to patient self-determination. However, when no clear indication of the patient\u27s treatment preference can be ascertained because of decisional incapacity, then the question of terminating life support is much more difficult. The author describes and analyzes the two legal standards that have evolved in the three countries to guide treatment decisions: the substituted judgment standard, which has been particularly prominent in the United States, and the best interests test. Both have been problematic in application. With respect to the best interests test prevalent in Canada, the few analogous cases that have been decided to date have been marked by an emphasis on the single criterion of the presence or absence of non-relievable pain. The author concludes that while judgments will rightly be rooted in caution, Canadian courts can and ought to develop a more encompassing series of considerations to ground decisions about ending life support. The author then begins to develop principles that could guide decision making in this area

Withholding and Withdrawing Life Support from Adults at Common Law

This article examines the circumstances in which life support can legally be withheld or withdrawn from adults. It analyzes the situation of patients who are both capable and incapable of making decisions, taking into account recent jurisprudence in Canada, the United States, and the United Kingdom. Where competence is not an issue, both law and modern medicine espouse a strong normative commitment to patient self-determination. However, when no clear indication of the patient\u27s treatment preference can be ascertained because of decisional incapacity, then the question of terminating life support is much more difficult. The author describes and analyzes the two legal standards that have evolved in the three countries to guide treatment decisions: the substituted judgment standard, which has been particularly prominent in the United States, and the best interests test. Both have been problematic in application. With respect to the best interests test prevalent in Canada, the few analogous cases that have been decided to date have been marked by an emphasis on the single criterion of the presence or absence of non-relievable pain. The author concludes that while judgments will rightly be rooted in caution, Canadian courts can and ought to develop a more encompassing series of considerations to ground decisions about ending life support. The author then begins to develop principles that could guide decision making in this area

Our Bodies: Property Rights in Human Tissue

In Moore v. Regents of the University of California, the Supreme Court of California held that the human source of blood and tissue used by his physician and other defendants in potentially lucrative medical research without his permission could not assert a legal claim that, in doing so, the defendants had deprived him of any property right in these materials or the cell line developed from them. He was, however, permitted to proceed with his claim that there had been a failure to obtain his informed consent to the excision or removal of these materials, given that their end uses were not disclosed. The decision in Moore is but one example of the range of new legal problems created by the many and rapid advances in biotechnology, and of the attempts courts are making to respond. The judgment raises questions about whether these types of issues as between the patient and medical, research, and pharmaceutical concerns can or ought to be analyzed in terms of property rights. Are the general justifications for recognizing proprietary rights that have traditionally been influential in judicial decisions useful or helpful in this context? And what of the identity of the decision-maker? In Moore, the majority was content to effectively delegate much of the decision-making authority to the U.S. Patent Office and the Office of Technology Assessment. While there are no Canadian decisions directly on point as yet, the pace of technological advances, the potential for economic gain, and the international nature of biotechnology enterprises all set the scene for these issues\u27 coming before our courts in the near future. This paper begins to explore the implications of adopting an analytical model based on property rights and to address the fact that the biotechnology industry already operates on the premise that such material can be owned. It concludes that the current legal regime needs to be modified to allow effective control of these new realities and suggests principles that might be adopted to address important concerns that are raised by the transformation of human tissue and cells into economic goods

Fallout from Chaoulli: Is It Time to Find Cover?

This article examines the implications of the decision in Chaoulli v. Quebec (A.G.) for Canadian health policy. The author assesses whether governments are likely to strengthen medicare, given past performance and the exit option Chaoulli presents. The article analyzes the consequences of increasing private care and private insurance, concluding this will diminish the publicly funded system. It contrasts Chaoulli -with courts\u27 dismissals of claims for Charter protection of minimal social and economic security, despite the profound effects of the latter on health status. It concludes by noting Chaoulli is one more example of the increasing prevalence of discourse normalizing privatization and individual responsibility in policy justifications

Fallout from Chaoulli: Is It Time to Find Cover?

This article examines the implications of the decision in Chaoulli v. Quebec (A.G.) for Canadian health policy. The author assesses whether governments are likely to strengthen medicare, given past performance and the exit option Chaoulli presents. The article analyzes the consequences of increasing private care and private insurance, concluding this will diminish the publicly funded system. It contrasts Chaoulli -with courts\u27 dismissals of claims for Charter protection of minimal social and economic security, despite the profound effects of the latter on health status. It concludes by noting Chaoulli is one more example of the increasing prevalence of discourse normalizing privatization and individual responsibility in policy justifications

Opening the Door to Complementary and Alternative Medicine: Self-Regulation in Ontario

This paper examines the steps that three complementary and alternative medicine (CAM) groups - naturopaths, acupuncturists/traditional Chinese medicine practitioners, and homeopaths - are taking to achieve statutory self-regulation in the province of Ontario. The regulatory framework created by the Regulated Health Professions Act of 1991 is outlined, and the differing approaches taken by each of the three groups to gain inclusion under its umbrella are compared and contrasted. The paper assesses the influence of current regulatory and socio-political environments, and queries the extent to which the paradigms of health and health care of these different groups can be accommodated in a regulatory regime heavily reliant on the conventional medical model

Opening the Door to Complementary and Alternative Medicine: Self-Regulation in Ontario

This paper examines the steps that three complementary and alternative medicine (CAM) groups - naturopaths, acupuncturists/traditional Chinese medicine practitioners, and homeopaths - are taking to achieve statutory self-regulation in the province of Ontario. The regulatory framework created by the Regulated Health Professions Act of 1991 is outlined, and the differing approaches taken by each of the three groups to gain inclusion under its umbrella are compared and contrasted. The paper assesses the influence of current regulatory and socio-political environments, and queries the extent to which the paradigms of health and health care of these different groups can be accommodated in a regulatory regime heavily reliant on the conventional medical model

Pediatric Use of Complementary Therapies: Ethical and Policy Choices

Objective: Many pediatricians and parents are beginning to integrate use of complementary and alternative medical (CAM) therapies with conventional care. This article addresses ethical and policy issues involving parental choices of CAM therapies for their children. Methods: We conducted a literature search to assess existing law involving parental choice of CAM therapies for their children. We also selected a convenience sample of 18 states of varying sizes and geographic locations. In each state, we inquired within the Department of Health and Human Services whether staff were aware of (1) any internal policies concerning these issues or (2) any cases in the previous 5 years in which either (a) the state initiated proceedings against parents for using CAM therapies for their children or (b) the department received telephone calls or other information reporting abuse and neglect in this domain. We asked the American Academy of Pediatrics and the leading CAM professional organizations concerning any relevant, reported cases. Results: Of the 18 state Departments of Health and Human Services departments surveyed, 6 reported being aware of cases in the previous 5 years. Of 9 reported cases in these 6 states, 3 involved restrictive dietary practices (eg, limiting children variously to a watermelon or raw foods diet), 1 involved dietary supplements, 3 involved children with terminal cancer, and 2 involved religious practices rather than CAM per se. None of the professional organizations surveyed had initiated proceedings or received telephone calls regarding abuse or neglect concerning parental use of CAM therapies. Conclusions: Pediatric use of CAM therapies raises complex issues. Clinicians, hospitals, state agencies, courts, and professional organizations may benefit from a policy framework to help guide decision making