When a physician and decisionmaker disagree about a patient’s proposed treatment, the Consent and Capacity Board (CCB) resolves their dispute. This most often occurs when an end-of-life (EOL) decision must be made.
An independent administrative tribunal created by the Ontario government under the Health Care Consent Act (HCCA), the CCB adjudicates matters for individuals who lack the capacity to make their own treatment decisions, for which a substitute decision-maker (SDM) is appointed. That is, someone who may be responsible for deciding whether someone remains on life support.
An Intensive Care Unit (ICU) physician will usually make the recommendation to remove life support through a proposed treatment plan. The SDM, typically a family member, must consent to the proposed treatment plan before the physician can proceed. If the parties are unable to agree, the physician can file an application to the CCB to determine whether the SDM’s is fulfilling their legal obligations under the HCCA.
Krista Bulmer is a lawyer and former adjudicator on the CCB and sat down with The Trauma and Mental Health Report (TMHR). Her role as an adjudicator was, in part, to hear and decide the applications brought by ICU physicians involving end of life decision-making, which were “always very fact specific and always difficult.” Bulmer explains:
“The hearing panel might decide that the SDM was fulfilling their legal obligations and the matter ends there, or that the SDM failed to act in accordance with the patient’s own prior capable wish applicable to the circumstances. The panel would then make an order directing the SDM to consent in accordance with the patient’s prior capable wish.”
If the patient did not have a prior capable wish applicable in the circumstances, the panel would then have to determine whether the removal of life support was in the patient’s best interests. The SDM must then consent to the proposed treatment, namely the removal of life support. If they fail to follow the order, they are removed as SDM: “Ultimately, the effect of this order would be to ensure the ICU physician obtains the consent required to implement the proposed treatment plan, including the removal of life support.”
CCB orders could ultimately result in the physician obtaining the consent needed to withdraw life support. As Bulmer puts it: “There are few things in the legal realm more sobering or serious than that.” She continues:
“I was alive to the fact that the difficult evidence in these cases could result in vicarious trauma. I think that understanding, in advance, what the potential mental health impacts of making decisions in EOL cases is invaluable.”
When asked about the mental health supports in place for board members, Bulmer talks about an atmosphere of support that exists in the work environment and between board members:
“As you can imagine, emotions run high in these hearings. We often heard heartbreaking testimony from both sides of the dispute. Every single party in these hearings cared deeply about the patient. This includes the family members, as well as the medical staff caring for the patient. Being a part of a panel created an atmosphere of support from others who were having the same experience. During the hearing and after the hearing concluded, we could discuss how the hearing process impacted us. It was very helpful to have colleagues that understood what you were experiencing and who could offer their support.”
The panels are often well-rounded, containing members from the community in addition to professionals from medical and legal fields. Working in a supportive environment ensures colleagues look out for one another to combat the potential negative mental health impacts such as compassion fatigue and burnout in this difficult, yet crucial, line of work. Bulmer concludes:
“EOL cases stay with me and I continue to think about the patients and their families. I sometimes wince when I recall the painful details of some cases, but I feel fortunate that I have not experienced any long-term negative impact. I view my past work on EOL cases as some of the most important of my career and I am confident that my colleagues and I made good decisions in those cases based on the evidence before us. Knowing this may explain why these cases have not had a negative impact on my overall mental health.”
– Samantha Mason, Contributing Writer