New Case - In re DP (Ontario ICU should have talked with the surrogate before suing her)

Dr. Ali Ghafouri's patient, DP, has been in a vegetative state since February 2008, at Toronto's Humber River Regional Hospital.  In March 2010, the ICU team and others met with DP's wife apparently to recommend palliative care.  But DP's wife said that she "wanted full supportive interventions with the goal of keeping him alive."  Ghafouri then filed a Form G Application with Ontario's Consent and Capacity Board.  While the CCB typically rules in favor of healthcare providers, a few weeks ago, it dismissed this Application.  (In re DP, 2010 CanLII 42949 (ON C.C.B.))

A Form G Application basically maintains that the surrogate is not faithfully representing the patient's wishes or best interests.  If the healthcare practitioner can establish that standard, then the CCB can order the surrogate to comply.  But the merits were never reached here.  

The providers jumped the gun and proceeded with formal proceedings before trying sufficient communication and mediation with the surrogate.  They never presented DP's wife with the plan of care.  They never advised her of her duties as surrogate under the Health Care Consent Act.  The Board held that "the health practitioner had to do more before he could determine that [the surrogate] 'did not comply.'"

This is a great case that applies the general rule that internal and informal mechanisms should be exhausted before seeking formal adjudication from an adjudicative tribunal.  Unfortunately, nothing in the Texas Advance Directives Act requires exhaustion before proceeding to the formal 10-day notice.  As Bob Truog and others have suggested, this might induce some providers to do a less careful job with dispute resolution.  This is especially dangerous because the "tribunal" to which Texas providers can too quickly jump is, unlike the CCB, not neutral and independent.   Similarly, Trinitas Hospital never showed the New Jersey courts what internal dispute resolution procedures it had or used before asking the court to defer to them.