MANITOBA REJECTS CONSENT & CAPACITY BOARD

Adult siblings and a physician who could not agree on the end-of-life care of Samuel Golubchuk are somewhat in alignment now, nearly three years after the man’s death, over the perceived shortcomings of a provincial response to their dispute.

A working group’s recommendation that the Canadian province of Manitoba legally empower a panel to settle disputes between patients, their families and doctors was rejected. Other recommendations were accepted, especially the call for public education, improved doctor-family communication, and promotion of advance directives. (To read the reports: http://www.wrha.mb.ca/healthinfo/reports/endoflife.php)

The Golubchuk case underscores the complexity of resolving end-of-life disputes, pitting a doctor and hospital’s professional ethics against an individual’s religious beliefs. At its core are questions of autonomy, nonmaleficence and ultimately the sanctity of life. The toxic role of economics seemed not relevant to this case, and yet media coverage within the pro-life community has portrayed the hospital’s wish to withdraw mechanical life support as a choice for the bottom line over life itself. Such are the depths to which the dialogue can degenerate in such a case. Under a court order to continue life support, Dr. Anand Kumar instead resigned from Grace Hospital, and Golubchuk’s care, which he called “immoral” and "tantamount to torture."

According to CBC News, Kumar supported creation of a review board with legal authority. In this, he agreed with Golubchuk’s daughter, Miriam Geller, who told CBC News that doctors still have the final say in dispute with patients and families. A review panel to decide disputes would have been a better solution, she said.

In rejecting the proposed review panel, Manitoba has opted not to follow the lead of Ontario, where a Consent and Capacity Board has been established -- and only recently, in a case with some similarities, ruled for the family at least in part because physicians had not taken the family’s religious beliefs into account.

The Consent and Capacity Board, which notably doesn’t include physicians, gives Ontario a way to resolve such cases more expeditiously than a court, where patients tend not to survive till trial. Golubchuk, in fact, died while on life support before that dispute reached trial.

Ontario law requires that a patient’s beliefs, values and wishes for care be taken into account in determining the patient’s best interests. I found nothing in the report indicating Manitoba will follow suit (though perhaps this will come through the recommended education and communication). The Golubchuks’ Orthodox Jewish beliefs were central to the dispute, and I’d hoped to see the report address this. Indeed, in my own survey of online media coverage of Golubchuk, I noted many references to the family’s religious opposition to hastening death, but none to the Jewish prohibition against prolonging dying. I’d hoped to see a specific recommendation that in such cases, pastoral support be brought in to improve understanding in both sides of the dispute.

The report and recommendations are thoughtful and worth reading for anyone interested in the complicated terrain of end-of-life decision-making. The review of literature and case studies was extensive. And stopping short of empowering a review panel, in response to those few cases that become stuck in dispute, may prove wise.

And yet, according to the CBC, the College of Physicians and Surgeons of Manitoba has drafted rules for its doctors that say no patient can demand life-sustaining treatment. That’s one more indication this problem isn’t soon going away, in Manitoba or elsewhere.

"Look at the one-year period that in our case, the Golubchuk case, was between the time initial filing was made and the time they scheduled the court case. It was one year for a dying patient," Dr. Kumar told CBC News. “My own personal feeling is that a Consent and Capacity Board similar to Ontario or similar to what's down in Texas is a very good, very open process."