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ARCH Disability Law Centre Statement on the Potential Suspension of the Health Care Consent Act

January 28, 2021

ARCH Disability Law Centre is alarmed to learn that the Ontario Critical Command Centre is seeking an Executive Order to suspend certain provisions of the Health Care Consent Act (HCCA).

Currently, the HCCA requires doctors to get the consent of a patient, or if the patient is not able to consent, the consent of the patient’s family before providing or withdrawing any treatment. The Executive Order would effectively permit doctors to withdraw treatment from a patient without the consent of the patient or family. It would come into effect in the event that hospitals have more patients than resources, and would accompany Ontario’s Triage Protocol. It would last only for a temporary period of time.

Granting doctors such unilateral decision-making power is an extraordinary measure that would have long-lasting and devastating effects. It is an extreme step that is contrary to Ontario’s established legal regime. As set out by the Supreme Court of Canada in the seminal decision of Rasouli, a patient’s right to make decisions about their own body “has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.” (Cuthbertson v Rasouli, 2013 SCC 53 at para 19)The HCCA gives effect to this right insofar as possible.

The HCCA contemplates disputes between physicians and the wishes of the patient. In the event of disagreement over the plan of care (including removal of care), the HCCA sets out a mechanism for resolution through which the physician can apply to the Consent and Capacity Board, a quasi-judicial body with specialized jurisdiction over matters related to consent to medical treatment.

In other words, if the physician does not have consent to remove care, they will have to satisfy the Board that such removal of treatment is in the best interest of the patient. These provisions of the HCCA, while not perfect, create an important system of checks and balances in the delivery of health care. The Board is specifically situated to navigate the difficult scenario of when the patient’s wishes are at odds with the physician’s proposed plan of care.

Suspending these provisions places the integrity of Ontario’s legal and health care system in precarious territory and risks egregious Charter violations. Giving unfettered discretion to even the most well-intentioned physicians to withdraw care without consent and without an appeal mechanism, is a dangerous move that would shock and offend the general public.

The importance of oversight and appeal mechanisms in health care cannot be overstated. This was made abundantly clear in the recommendations and submissions made by ARCH and other advocacy groups to the Bioethics Table during summer consultations regarding the Triage Protocol. These recommendations were not adopted.

The Ontario government has remained silent on this. This is further demonstrative of the lack of transparency that disability organizations, including ARCH, have been decrying since April 2020.

The checks and balances set out in the HCCA are truly the last resort for any patient (or their family) who disagrees with removing critical care. ARCH calls upon the government to immediately make public the Ontario Critical Command Centre’s request. ARCH implores the government to not suspend the HCCA – the lives of Ontarians, and the fundamental right to make decisions about what happens to one’s own body are at stake.

January 28, 2021