CCB Ruling in the Desmond Watson Case

I blogged, last month, about the CCB's ruling in the Desmond Watson case.  But that was based on a newspaper story.  I finally read the CCB's written opinion that Mark Handelman was kind enough to send me.  This case, like some other recent CCB cases that I have discussed, illustrates the limits of surrogate selection as a mechanism for resolving intractable futility disputes.    

The Physician

First, it is noteworthy that the physician pushed this case through the dispute resolution process even though he rotated onto this patient's case in only one out of every five weeks.  The physician who brought the Form G application noted that the patient:

• Had been an inpatient for almost 14 continuous months.



• Suffered severe dementia, was bedridden and non-communicative.



• Suffered from (and would continue to suffer from) opportunistic infections.



• Suffered discomfort and even pain from intrusive interventions such as airway suctioning, wound dressing, feeding, incontinence, repositioning, and daily care.



• The physician determined the patient had no hope of a meaningful recovery.



• The physician proposed withdrawing ventilatory support.



• The physician argued that the surrogate's refusal to consent to this treatment plan was inconsistent with the requirements for substitute decision making in Section 21 of the Ontario HCCA.

The Surrogate

The surrogate was the patient's wife of 69 years.  She testified that the patient was a "religious Catholic" who would continue aggressive treatment.  She and her daughter testified that the patient would "choose discomfort" and would "prefer to suffer" because withdrawing life support would be a "sin."

The CCB

The CCB stated that on a pure objective best interest standard, it would have ruled for the physician.  But because the CCB found that the wife's and daughter's testimony about the patient's religious preferences was sincere, the CCB panel determined it they must rule for them. 

I might note that other CCB panels have been able to acknowledge subjective patient preferences and still rule for the physician.  The surrogate in this case conceded that the patient never anticipated these precise circumstances.  In previous cases, such a concession has permitted the Board to give considerably less weight to evidence of patient preferences relative to objective best interest considerations.