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Health Professions Review Board

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DECISION NO. 2014-HPA-102(a); 2014-HPA-103(a); 2014-HPA-104(a) (Group file: 2014-HPA-G21)

In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the “Act”) for review of a complaint disposition made by an Inquiry Committee

BETWEEN: The Complainant COMPLAINANT

AND: The College of Physicians and Surgeons COLLEGE

AND: A Physician REGISTRANT 1

A Physician REGISTRANT 2

A Physician REGISTRANT 3

Collectively call the “Registrants”

BEFORE: Victoria Kuhl, Panel Chair REVIEW BOARD

DATE: Conducted by way of written submission concluding on May 8, 2015

APPEARING: For the Complainant: Self-represented

For the College Sarah Hellmann, Counsel

For the Registrants Julie K. Gibson, Counsel

I STAGE 2 HEARING

[1] This is a Stage 2 hearing of an application for review of an Inquiry Committee disposition. In order to adjudicate the review fairly I requested by letter to all parties that the College clarify matters of process used in the investigation submitted to the Inquiry Committee. Their response was shared with all parties.

DECISION NO. 2014-HPA-102(a); 2014-HPA-103(a); 2014-HPA-104(a)

II INTRODUCTION

[2] This review is about whether the Inquiry Committee of the College conducted an adequate investigation and issued a reasonable disposition on a Complaint made to the College by two parents (the “Complainants”) regarding the care their terminally ill adult daughter received in the 32 hours before she died on October 26, 2011. Their complaint was that their daughter’s request for “supportive care” only and DNR (Do Not Resuscitate) was ignored by three Registrants, that her DNR request may have been contravened and that she did not receive the type of end of life care she requested. The questions posed on the Complaint are set out in Appendix I to these reasons.

[3] For purposes of this review the Registrants who were employed by the hospital are referred to as follows:

Registrant No. 1: the emergency room (ER) physician who provided care from October 24, 2011 at 11:30 p.m. and October 25, 2011 till 7 a.m.

Registrant No. 2: the general hospitalist who provided care on October 25, 2011 from 7 a.m. till 6:40 p.m.

Registrant No. 3: the hospital palliative care unit Director. The patient was on his ward October 25, 2011 from 6:40 p.m. until she died the following morning of October 26, 2011 at 6:00 a.m.

[4] The Complainants: One of the Complainants, the patient’s mother, was an experienced RN, who passed away in March 2014 shortly before the Inquiry Committee decision of April 17, 2014. She was active in preparing the complaints under the Patient Care Quality Review Board Act and the Health Professions Act. She observed and questioned the Registrants’ care of her daughter, and after her daughter’s death studied her medical records for the purpose of the reviews. The father, who continued the review process after his wife’s death, will be referred to as the Complainant.

[5] The Complainants methodically worked to raise awareness in the medical community and bring about change in how physicians’ managed end of life care for terminally ill patients. The bottom line for them in this lengthy exercise that spanned four years and began after their daughter’s death, is that it was their duty in the public interest to work for change for other patients who were terminally ill. As mentioned in the introduction, the Complainants pursued complaints about their daughter’s care under the processes of two statutes. The submitted their complaint initially to two different agencies under the Patient Care Quality Review Board Act. Then under the Health Professions Act they submitted their complaint to the College and finally to the Health Profession Review Board.

III BACKGROUND

[6] The Complainant’s terminally ill daughter was admitted to ER near midnight on October 24, 2011, and later to the hospital palliative care unit with the express request on her chart that she wanted “supportive care” only and DNR (Do Not Resuscitate).


[7] Their daughter was in the ER to determine if she had broken her leg, which she had not. The Registrants’ treatment plan and delivery of care from the time of admission until her death less than two days later varied little from standard emergency room care. She had expressly asked for and expected end of life care rather than the intrusive life-prolonging standard of medical care that she received.

[8] She was in the final stages of dying from metastatic breast cancer and under the palliative care of the British Columbia Cancer Agency (“BCCA”) at her parent’s home. Upon admission she asked to be transferred to the BCCA palliative care unit where she was known.

[9] Her symptoms on admission were those of a seriously ill person who was also terminally ill. She and her parents knew she was dying in the final stages of cancer and they believed the Registrants did also since she made them aware upon admission and it was recorded in her chart.

[10] Upon admission Registrant 1, the emergency physician, began a treatment plan to address her presenting symptoms of rapid pulse, low blood pressure, nausea, vomiting, edema, and pain to make the patient more comfortable. He ordered several blood tests, an ECG, IV’s with medications and pain medications. At the end of his shift in the early morning of October 25, 2011, Registrant 2, the emergency room hospitalist, came on duty. He did not have the benefit of the patient’s prior medical records. Registrant 2 continued the treatment plan started by Registrant 1 and added additional tests and treatment.

[11] That morning the patient was still in emergency. Her father informed Registrant 2 about their wish to have her transferred to the cancer centre as soon as possible. Registrant 2 refused and indicated she was too sick to transfer.

[12] The nursing notes state that later that morning, the patient asked the nurse to have the intravenous (IV) with medications discontinued, that Registrant 2 was aware of the request and “states that he will come and reassess patient.”

[13] According to the complaint, “We were told [Registrant 2] would reassess her and he did see her more than 2 hours later but did not speak to us.” Registrant 2 advised the College that he did attempt to “obtain some direction from [the patient] with regard to the level of care” and that her only request was to be transferred to the cancer centre. Registrant 2 also stated that, “unable to solicit any further details from the patient, I took her father to the side to further discuss her goal of care”, and that the father “was not able to provide any specific direction as to her treatment plan.” The father categorically denies that any such discussion ever took place, which issue is discussed later in these reasons. What is clear is that the IV was not ever removed.

[14] The patient was examined by Registrant 3 in the afternoon of her first day and moved from ER to the hospital palliative care unit. The patient and her parents hoped she would be able to rest and her care would be in line with their understanding of palliative care gained during her treatment at the BCCA. However there was no relief


from the same intensive treatment and ongoing testing initiated on admission to ER. That level of care intended on prolonging the daughter’s life continued until she died early the next morning on October 26, 2011.

[15] In their response letters to the College the Registrants acknowledged that the patient received emergency room care although Registrant 1 stated that he did not adopt an “aggressive” treatment plan. They did not want her to die of a heart attack that could be prevented.

[16] What is clear is that neither the Complainants nor their daughter were successful in having the Registrants provide the type of care they believed was both explicit and implicit in the direction for “supportive care” and “DNR”. After her death the parents then set about preparing their complaint.

IV COMPLAINTS UNDER THE PATIENT CARE QUALITY REVIEW BOARD ACT AND THE HEALTH PROFESSIONS ACT

[17] Their first complaint about the Registrants’ care was with the Patient Care Quality Office (“PCQO”) of the hospital under the regional Health Authority, in which the three Registrants were members of the medical staff. Dissatisfied with the outcome of that process, they took their complaint to the next level, the regional Patient Care and Quality Review Board (“PCQRB”). The PCQRB reviewed the patient’s hospital medical records, the Ministry of Health website on End of Life Care and the Provincial Framework/guidelines on End of Life Care. The PCQRB’s October 11, 2012 decision letter to the Complainants stated:

The Board found that your directions for end-of-life care were not followed. Based on the information provided to the Board, the treatment interventions exceeded both your daughter’s and your directions. According to information provided by you, upon arrival at the hospital, you indicated the level of intervention requested by your daughter for end-of-life care was for palliative support only and not to have excessive medical treatment interventions, for example infusions, injections, tests, etc. Although these directions were not written down it was made clear by you to hospital staff that end of life care was requested…

The PCQO informed the Board that the [hospital] does not have its own specific practice guidelines for end-of-life care at this time. The Board is aware that the best practice for end-of-life care planning should begin as soon as the goal of care is comfort and palliation and that palliative care instruction should clearly be understood by the patient, care providers and the family. Your family should have been made aware of the benefit of making an advance directive to guide care for the benefit of your daughter, yourselves and the health professionals. In this case, the advance directive should have been initiated by either the family doctor or the (cancer centre).

[18] The same letter found the hospital’s Patient Care Quality Office investigation and response to be unsatisfactory as there were no notes taken of the Office’s initial meeting with the Complainants. The PCQRB recommended that the hospital report to the Board and the Complainants the result of its review, and in particular how the


hospital manages the protocols related to palliative care patients who are admitted through the emergency department.

[19] The PCQRB’s October 2012 recommendations led to a December 2012 letter from the Health Authority to the Complainants which states in part:

The role of an emergency department is to assess the current situation, identify and treat immediate medical concerns and transfer or discharge the patient as appropriate. In situations where a palliative care patient comes to the hospital through the emergency department, there may be times when diagnostic tests are needed to determine the medical issues or concerns. Whenever a diagnostic test or treatment is not immediately necessary, we seek to discuss the test or treatment with the capable patient, and if the patient not able to participate, then with the substitute decision-maker. The fact that the patient is in the hospital will not be interpreted as consent to any or all processes that the doctors feel may be appropriate in a given situation. One of the issues present in your daughter’s situation was the fact that you and our medical staff interpreted “comfort care” in different ways. The best model of care is to be very specific about the care being proposed and then to ask the patient or substitute decision maker whether they consent to the treatment or wish to discuss other options. We did not engage in this specific conversation with your daughter and your family and believe that having these specific conversations in the future will prevent such a stressful misunderstanding from happening in the future.

We are training our staff to ask patients and family members if they have such documents or wishes recorded………if the record is in another health care facility then we will ask that facility whether they have such documentation. We hope that the improved communication and specific conversations about treatment options and what “comfort care” means to the individual and their family will enable us to improve the care we provide to our patients in the future.

[20] The Complainants had achieved an important part of their objective by succeeding in having the Health Authority introduce new hospital protocols and training for hospital medical staff that included the three Registrants.

[21] The Complainants then submitted their complaint to the College and included findings from these two previous levels of review under the Patient Care and Quality Review Board Act with their list of 17 questions [Appendix 1]. The questions formed a key part of their complaint and questioned the Inquiry Committee about specific instances in their daughter’s medical care. The Complainants asked the Inquiry Committee to take action to ensure the three Registrants acknowledge that they had denied their daughter’s wishes for supportive care at the end of her life. They asked that other physician members of the College be advised of their role and the role of the terminally ill patient in managing their level of medical intervention, and that patient requests be accepted and considered whether oral and written.

[22] The complaint to the College stated: “we feel it is our duty to report this thereby helping to ensure that it does not happen to someone else.” The Complainants requested that an expert medical consultant be hired to review the Record and that the


Discharge Summary be corrected, as there were in their view several inaccuracies and omissions.

[23] The complaint was dismissed by the Inquiry Committee.

V DISPOSITION LETTER

[24] The Inquiry Committee’s April 2014 Disposition Letter, after setting out the background, commenced with the following discussion:

At the outset, the Inquiry Committee noted a paradox posed by your complaint. In your review the physicians disregarded [your daughter’s] and your clear wishes regarding the goals of therapy and provided overaggressive and inhumane management, while they contended that they were both honouring your expressed wishes and providing appropriate and humane end of life care. More specifically, your letter of complaint sets out your firm conviction that [your daughter] had been brought to hospital after a fall solely to determine if her femur was fractured; you and her clear expectation was that any treatment offered would be supportive in nature only. The treating physicians, on the other hand, believe that while [your daughter] was indeed suffering from advanced breast cancer with no hope of cure that a rational medical approach, and one endorsed by both you and [your daughter] was that medical treatment of potentially immediately life threatening and correctable problems, such as hyperkalemia, could and should proceed along with purely palliative measures.

The Inquiry Committee was not able to resolve this paradox, nor was it able to answer the 17 questions posed in your complaint based on a review of the medical records and the physicians’ written responses. Instead, the Committee attempted to answer the following question:

How would a reasonable and conscientious emergency physician, hospitalist or palliative care physicians go about attempting to provide optimal management to a patient such as your daughter; i.e., a patient in her mid 30’s with widespread metastatic cancer whose health was rapidly declining in the face of disease that had become resistant to conventional cancer therapy and who expressed a wish for supportive care only?

[25] The Inquiry Committee answered this question in respect of each Registrant.

[26] With regard to Registrant No. 1, the Inquiry Committee found that it was reasonable and appropriate for him to administer IV fluids and provide treatment for hyperkalemia with insulin, bicarbonate and kayexalate, that nothing about that treatment was inconsistent with supportive care and that the patient improved over night with that treatment. The Inquiry Committee saw no reason for Registrant No. 1 to contact the oncologist at BCAA that night as there was no emergent basis to do so. The Inquiry Committee could find no regulatory criticism of Registrant No.1.

[27] With regard to Registrant No. 2, the Inquiry Committee stated that “It was agreed that the use of calcium and glucose for hypoglycemia was reasonable and appropriate in the circumstances, and not inconsistent with the goals of supportive therapy. The Inquiry Committee agreed that [Registrant No. 2] provided [the patient] with appropriate


medical care and could find no basis for regulatory criticism of his care.” The Inquiry Committee accepted that Registrant No. 2 had attempted to contact the oncologist and left a message but did not in this part of its discussion specifically reference the oncologist’s statement that all calls are tracked and that there is no record at the BCCA of the call. The Committee noted that while the patient understandably trusted her oncologist at BCCA and wanted her care, the cancer agency “is resourced to provide cancer care and not palliative care, which can be provided in community hospitals.” The Inquiry Committee thus deemed it reasonable for Registrant No. 2 to make the referral to Registrant No. 3.

[28] With regard to Registrant No. 3, the Inquiry Committee felt that his assessment of the patient’s condition was reasonable and that his plan for symptom management was appropriate. The Inquiry Committee noted that while Registrant No. 3 was qualified to manage the patient’s condition, he nonetheless agreed to get her transferred to BCCA, but unfortunately the patient died before the transfer could be carried out. The Inquiry Committee found no basis for regulatory criticism of Registrant No. 3.

[29] The Inquiry Committee concluded as follows:

In summary, the Committee determined that [the Registrants] had all done a reasonable job of both treating acute life threatening disease (i.e., elevated blood potassium) while at the same time offering care that was supportive and not overly aggressive or invasive. The Committee agreed that the physicians had made reasonable efforts to contact [the oncologist] and seek [the patient’s] transfer to BCCA as per her wishes. The Committee agreed that there is no generally agreed upon definition of “supportive care” and that labels such as “palliative” or “supportive” care, while helpful in terms of describing a general philosophy of care, cannot substitute for the exercise of medical judgment applied to a particular patient in a particular situation. Clinical decision-making in a case such as [the patient’s] can be very challenging: the Committee agreed with [Registrant No. 3] that there are multiple reasonable approaches, and no one correct way, to balance the dual goals of prolonging life by attempting to remedy correctable conditions (like hyperkalemia) which avoiding any measures that might be perceived as invasive or meddlesome.

Finally, while the Committee noted your allegation that the physicians ignored your specific wishes and directions when [your daughter] was hospitalized at [the hospital] the Committee found no evidence from the medical records or physicians responses to suggest that they had knowingly pursued any treatment to which you or [the patient] had actively objected at the time. The Committee concluded that all three physicians had acted in good faith in attempting to provide care that was appropriate in [your daughter’s] specific circumstances.

VI APPLICATION FOR REVIEW

[30] The father (Complainant) submitted this application to the Review Board in May 2014.

[31] The application for review alleged that the Inquiry Committee did not respond to the Complainants’ questions in a satisfactory manner, noted the contrast between the


Inquiry Committee’s conclusion and that of the PCQRB, asserted that his wife had “voiced concerns, including with hospital staff”, regarding aspects of their daughter’s care (including the amount of fluids administered) and asked “is it really not possible to tell us categorically whether or not [our daughter] was resuscitated?”

[32] The relief sought from the Review Board was for the complaint to be sent back to the Inquiry Committee and for the Review Board to:

(a) Direct the Inquiry Committee to take appropriate action to resolve the matter between me and the registrants;

(b) Direct the Inquiry Committee to direct the registrar of the College to issue a citation against the registrants;

(c) Direct the Inquiry Committee to request in writing that the registrants undertake not to repeat the conduct which is the subject of my complaint;

(d) Direct the Inquiry Committee to request in writing that the registrants consent to a reprimand;

(e) Send the matter of my complaint back to the Inquiry Committee for reconsideration with such directions as the review board determines are appropriate.

[33] The Complainant’s Statement of Points, filed in October 2014 concisely summarized the concerns:

As noted previously, the questions my wife and I posed in our original complaint are of an extremely serious nature and I still believe they warrant responses. I will repeat them here. Is it really not possible to tell us categorically whether [our daughter] was resuscitated? If [our daughter] was resuscitated, how does this correspond to [her] clear DNR instructions? In light of [her] condition on admission … and in light of the fact that she was not voiding, was she administered too much fluid by her successive … hospital physicians? Why were our family’s wishes regarding supportive care not followed? Given ongoing ambiguity regarding 1) the kind of medical treatment [our daughter] received, 2) the rationale for the treatment, 3) the consequences of that treatment as well as the College’s inability to answer our questions, would it not be appropriate for an independent third party to investigate our complaint?

[34] A subsequent Statement of Points from the Complainant filed May 8, 2015, stated:

(3) My first question in my Statement of Points “Is it really not possible to tell categorically whether or not (our daughter) was resuscitated? Was not addressed at all by the College. A statement of Registrant 2 made to the College is quoted as: There was no attempt to resuscitate this patient…” this hardly is evidence of a fair review by the College and is certainly not satisfactory to me. The hospital records of October 25, 2011 which cover the time period from 7:10 (when Registrant 2 left) to approximately 10.00 should be carefully reviewed as this is the critical time when (our daughter’s) express DNR wishes were violated. It also shows the result of the second ECG: Acute (anteroseptal) MI.


VII THE COLLEGE AND REGISTRANTS’ STATEMENT OF POINTS

[35] The College reviewed the positions of the three Registrants as set out in the Record. This included reference to the statement of Registrant No. 1 that “the ECG at 00:22 ‘showed sinus tachycardia with no evidence of an MI” and the statement of Registrant No. 2 that “I do not believe [the patient] suffered a myocardial infarction as indicated by the 2nd ECG reading of “acute anteroseptal infarct. Her previous ECG demonstrated SVT and any cardiac damage would be as a result of the demand ischemia. I understand that the false positive reading may have caused confusion with her family when they reviewed the medical records.”

[36] The College made submissions about the legal principles pertaining to the Review Board. The College responded to the letter of questions I had sent as noted in the Stage 2 Hearing Introduction of this decision. The College’s submission described the College’s internal process in this case, as well as the material that was provided to the Inquiry Committee for review. The College noted that “The number of new matters for review on agendas for the panel meetings typically ranges between 12 and 20.”

[37] With regard to the adequacy of the investigation, the College summarized the steps it took, and the information it obtained, and submitted that the Inquiry Committee “took reasonable steps to identify the key information that would have affected the Inquiry Committee assessment of the Complaint. As such the College submits the investigation of this matter was adequate.”

[38] With regard to the reasonableness of the disposition, the College emphasized the Inquiry Committee’s role and medical expertise, and submitted that “In accordance with the principles of reasonableness and procedural fairness, before any type of action is imposed, remedial or disciplinary, there must be a sufficient evidentiary foundation to establish the registrant’s conduct or care was not satisfactory.” The College emphasized that it is not the Review Board’s role to second-guess medical assessments on the standard of care, and submitted that the Inquiry Committee’s disposition was reasonable – that “the College obtained an adequate factual foundation for assessing the clinical conduct of the Registrants”, and that it was “within the range of reasonable and acceptable solutions” to find that the Registrants had met the appropriate standard of practice with respect to the [patient’s] end-of-life treatment.”

[39] The Registrants submitted a joint Statement of Points asserting that the investigation was adequate and the decision was reasonable. The Registrants argue that although the Complainant “objects to the reasonableness of the College’s decision, he provides no legitimate foundation for this argument, aside from a disagreement with the outcome.” They submit that “the College clearly reviewed the complaint with sensitivity to the applicant’s tragic loss of his daughter, while carefully and reasonably determining the complaint outcome based on the care that was provided to her.”


VIII THE REVIEW BOARD’S ROLE

[40] This is a review of the Inquiry Committee’s investigation and the disposition (decision) in accordance with s.50.6(5) of the Act. The Review Board must only decide on the following:

(a) the adequacy of the investigation conducted respecting the complaint; and

(b) the reasonableness of the disposition.

[41] I will attempt to set out in the following analysis that the legal terms of “adequate” and “reasonable” as defined in the Act differ in interpretation from the common language meaning of “adequate” and “reasonable”. Under s.33(1) of the Act, Inquiry Committees are obligated to conduct investigations of the matters raised by complainants. While investigators may be engaged, the responsibility for the conduct and completion of an investigation resides with the Inquiry Committee. The College has an obligation to act in the public interest in a transparent, impartial and fair manner as set out in s.16(1) and s.16(2) of the Act, and further articulated in Review Board Decision 2013-HPA-050(a) at para. [23]:

It is clear that in all respects those guiding precepts apply and all investigations and related procedures must be directed to fulfilling those obligations for the service and protection of the public. This is balanced by specific procedural steps under s.33(5) of the Act-specifically giving the Registrant a right to be heard in the investigation. This procedural right exists because of the potential effect on the Registrant’s ability to practice his profession. It is a right that also exists at common law as an element of natural justice.

[42] The Review Board’s role in reviewing the “adequacy of the investigation conducted respecting the complaint” has been the subject of extensive discussion, both in Review Board decisions and in Court judgments. The leading decision is the decision of the BC Supreme Court in Moore v. College of Physicians and Surgeons, 2013 BCSC 2081, which reasons were adopted by the Court of Appeal [2014 BCCA 466]. I accept that decision as governing me in this case. I also accept the Review Board’s discussion of Moore as set out in Review Board Decision No. 2013-HPA-216(a), at paragraphs [24-34]. Both the Court and the Review Board have recognized that in the case of an objectively serious complaint, even “an extensive investigation into a complaint might be considered inadequate where one line of inquiry was ignored or not properly pursued”: Moore, para. [105].

[43] The Court and the Review Board have also commented on the Review Board’s role where it is assessing an Inquiry Committee’s investigation in circumstances where there was a conflict in the evidence before the Inquiry Committee. As noted in Review Board Decision No. 2011-HPA-0036(b) at paragraphs [43-86], which decision was cited by the BC Supreme Court in College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 at para. [71], the fact that the Inquiry Committee exercises a “screening” role and not the formal disciplinary role that applies


after a citation is issued, should not “obscure the evaluative function that the Inquiry Committee is sometimes required to undertake in the exercise of its mandate.”

[44] With regard to the test that applies when the Review Board assesses the reasonableness of the disposition, I adopt the discussion contained in Review Board Decision No. 2013-HPA-216(a) at paras. [36-39]:

[36] The test the Review Board has traditionally applied to determine reasonableness is whether the Committee’s disposition “falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent, and intelligible to be sustained.”

[37] Such a review will include consideration of whether an inquiry committee has acted within its authority. As was stated in Review Board Decision No. 2009-HPA-0045(a) at paragraph [55]: “A decision made outside of one’s lawful mandate falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law...”.

[38] The Review Board is not required to apply the reasonableness test as if it were a generalist court. While reasonableness requires deference, the nature and degree of deference applied by the Review Board must be suited to the statutory context—otherwise, why assign this task to the Review Board and protect it with a privative clause?

[39] Given the accountability purposes of the legislation, one aspect of this is that the Review Board’s reasonableness assessment necessarily and properly gives special weight to the importance of an inquiry committee justifying its decisions (or that of the Registrar) in a transparent and intelligible way in the s.34 summary that the inquiry committee is obligated to provide to the complainant. This does not require that inquiry committees issue lengthy archival reasons. However, on its review the Review Board is to look to see whether and how inquiry committees have explained themselves on key issues, and—given the obligations under s. 16(2)(i.1)—to avoid too readily assuming that an inquiry committee has “implicitly” considered or decided thus or so where such an assumption is not readily evident or cannot be readily drawn from the Record. This is one example of where the Review Board’s “reasonableness” review, given the statutory context and the purposes of the legislation, may appropriately differ from the reasonableness test as it might be applied by a court.

IX SERIOUSNESS OF THE COMPLAINT

[45] I have applied these tests in full recognition that this was, as the Inquiry Committee clearly recognized, an objectively serious complaint. The patient’s parents alleged that in the 32 hour period of time from admission until her death, the patient (over and above the x-ray which showed no fracture) had to endure multiple intrusions as blood samples were taken frequently (blood tests for diabetes, electrolytes, insulin levels) two ECG (Electro cardio grams) were performed, there was testing for MSRN and VRE bacterial infection swabs, and there a range of injectable medications as well as IV’s. Her parents alleged that she had 17 needle stabs during the short time she was in hospital and that even in the palliative care unit she was not allowed to rest. The


Complaint alleged that all of this was contrary to her clear instruction, and expressed serious concern that their daughter had been resuscitated following a Myocardial Infarction (MI), a clear violation of her unambiguous wishes as expressed in the DNR order.

X KEY CONCERNS

[46] In this case, the Application for Review emphasized the following key concerns:

(a) the amount of fluid their daughter received despite the fact that she was edematous and was not voiding;

(b) the Inquiry Committee’s apparent acceptance of the statement of [Registrant No. 2] that the goal of care was discussed with the father;

(c) the Inquiry Committee’s failure to conclude, consistent with the Patient Care Quality Review Board, that the family’s “directions for end-of-life care were not followed”;

(d) the Inquiry Committee’s failure to recognize that a palliative care nurse suggested catheterization, which the mother refused, its failure to address the giving of unnecessary MRSA swabs “as a result of improperly filled out forms by hospital staff”; and

(e) that medical treatment intended to prevent a MI was contrary to the patient’s wishes of supportive care only and failure to note a myocardial infarction occurred as noted in the ECG report in the Record.

[47] The first question is whether these matters were adequately investigated. If they were adequately investigated, the second question is whether the Inquiry Committee’s substantive outcome was reasonable.

[48] In the circumstances of this case, it will be convenient to review firstly what the College did by way of investigation, and then to address adequacy and reasonableness with regard to each of the headings summarized above.

XI THE INVESTIGATION

[49] The Inquiry Committee investigation took the following steps:

(a) On October 15, 2013, the Clinical Advisor wrote a letter to the complainants acknowledging receipt of the complaint correspondence and setting out the College’s process and timelines;

(b) On November 15, 2013, the Deputy Registrar wrote to the hospital seeking “all records” pertaining to the patient for October 2011;

(c) Also on November 15, 2013, the Clinical Advisor wrote the three Registrants enclosing the Complaint and requesting a written response within 15 working days;


(d) Also on November 15, 2013, the Clinical Advisor wrote to the patient’s oncologist at the BC Cancer Agency seeking a summary of her attendance upon the patient;

(e) On December 2, 2013, the patient’s medical records from the hospital were received by the College;

(f) On December 4, 2013, a written response to the Complaint was received by the College from Registrant No. 1, together with medical records;

(g) On December 30, 2013, a letter from the oncologist dated November 25, 2013, together with records from the BC Cancer Agency, was received by the College;

(h) On February 3, 2014, the investigation received a written response from Registrant No. 3 under cover of a letter from his legal counsel;

(i) On February 5, 2014, a written response was received from Registrant No. 2 under cover of a letter from legal counsel;

(j) On February 14, 2014, the investigation provided a copy of the responses of the three Registrants and the oncologist to the Complainants, and advised them that while they were not required to respond, they could do so;

(k) On February 21, 2014, the Complainants replied by email to the College’s February 14, 2014 correspondence;

(l) The Complainants made no specific reply to the response of Registrant No. 1. Their email focused on the responses of Registrant No. 2 and Registrant No. 3; and

(m)The Inquiry Committee’s investigative staff provided the Complainants’ reply to the Registrants (or their counsel) on the same date it was received (February 21, 2014). It stated that while they were not required to reply, they could reply within 15 working days. No reply was received;

[50] The College’s Bylaws state that “an inquiry committee is established consisting of at least nine persons appointed by the board, at least one third of whom must be public representatives”: Bylaw 1-16(1). As noted above, the number of new matters for review on agendas for the panel meetings typically ranges between 12 and 20. In this case, the complaint was considered by Inquiry Panel C. The meeting was scheduled for March 24, 2014.

[51] In preparation for Inquiry Committee meetings, the Deputy Registrar, Registrar Staff and Medical Reviewers put together a package of the relevant information in the investigation file for distribution to each member of the panel of the Inquiry Committee prior to the meeting date. Panel C received the following information in connection with the March 24, 2014 meeting:

(a) The complaint package (18 pp);

(b) Hospital records (62 pp);


(c) The responses from the three registrants (10 pp); and

(d) The “Reviewer’s Summary and Points for Consideration” (11 pp).

[52] A summary of the Inquiry Committee’s deliberation is provided in a separate document, which states as follows:

The Committee discussed the difficulties that can arise from people’s differing interpretations of the terms “supportive”, “palliative”, and “comfort care”. It was also acknowledged that palliative patients and families sometimes deviate from their originally stated wishes, and that complaints are just as likely to be received from families who do not think the doctors intervened to a high enough degree as they are from families who perceive the care to have been overly excessive.

The Committee found it understandable that a physician would elect to correct a life-threatening potassium level by means of a simply IV. Unfortunately, in this case complications resulted and further intervention was thus required.

[53] It is readily apparent that the Inquiry Committee had before it the events as described by the Complainants and Registrants, collected all the objective relevant clinical information and medical records concerning this issue. It is my view that the investigation was adequate.

A. Fluids

[54] The question as to whether it was appropriate for the Complainants’ daughter to have received the volume of fluids she did is a matter of clinical judgment by the Inquiry Committee and not within the Review Board’s jurisdiction to evaluate.

[55] The real question, however, is whether that clinical medical treatment fell below regulatory standards because of the patient’s recorded wish for supportive care only? While I have been troubled by this issue, I have concluded that given the absence of College standards of palliative care it was not unreasonable for the Inquiry Committee to have taken the view it expressed as follows:

The Committee agreed that there is no generally agreed upon definition of “supportive care” and that labels such as “palliative” or “supportive” care, while helpful in terms of describing a general philosophy of care, cannot substitute for the exercise of medical judgment applied to a particular patient in a particular situation. Clinical decision-making in a case such as [the patient’s] can be very challenging: the Committee agreed with [Registrant No. 3] that there are multiple reasonable approaches, and no one correct way, to balance the dual goals of prolonging life by attempting to remedy correctable conditions (like hyperkalemia) which avoiding any measures that might be perceived as invasive or meddlesome.

[56] It is important to recognize that the College’s role is fundamentally a regulatory and disciplinary role. If a case arises that cries out for clarity in regulatory standards concerning terms like “supportive care”, as this one does (see below), the appropriate role is for proactive reform and guidelines to direct future actions, rather than discipline.


B. Discussion of goal of care

[57] With regard to the Inquiry Committee’s apparent acceptance of the statement of Registrant No. 2 that the goal of care was discussed with the father, the first question here is about adequacy, and about whether, in the face of conflicting evidence, the Inquiry Committee was required to go any further in its investigation.

[58] The statement of Registrant No. 2 appeared to implicitly recognize that the circumstances did call for a discussion of the “goal of care” with the patient or family in his response letter. His version of events was as follows:

During my initial encounter with the patient at approximately 830 am, she was drowsy but was able to converse a few sentences. Her systolic blood pressure was 86 and her heart rate was 158. Sensing that this patient was not medically stable, I tried to obtain some direction from her with regard to the level of care. The only request from the patient was that she wanted to be transferred to BCCA to be seen by her medical oncologist…. Unable to solicit any further details from the patient, I took her father to the side to further discuss her goal of care.

I explained to [the patient’s] father that her medical condition was worsening and not knowing her well and without any previous BCCA medical record; I wanted to know what type of treatment to provide to his daughter. Unfortunately, [the father] was not able to provide any specific direction as to her treatment plan during our discussion. [The father] asked me to have his daughter transferred to BCCA and to speak with [the oncologist] to do so. I explained that I planned on contacting [the oncologist] with regard to [the patient]. I believe that [the father] did indicate to me that he wanted his daughter to be admitted under Palliative Care at BCCA. When I explained that we have a palliative care unit, [the father] insisted on the transfer without further explanation of why.

In the course of discussing the above issues with [the father], I was alerted by the nurse looking after [the patient] that her blood pressure had dropped to systolic 73 and her blood glucose was measured at 1.9. She was noted to have irregular breathing. I was concerned that the patient would die from a reversible medical condition if there were no intervention. I did not feel that I had a clear indication of the patient’s wishes to refrain from medical intervention at that time. I ordered one amp of D50W and a litre of bolus and asked for some routine blood work to be done. I did not ask for a Foley catheter to monitor her urine output.

[59] The father categorically denied (and denies) in his Statement of Points that version of events. He states that he had been asked about the goal of care he would have requested that Registrant No. 2 discuss this with his wife “who was taking a break at home and only 10 minutes away from the hospital.” The Complainants’ reply, which was not provided to the Inquiry Committee other than by way of summary, stated that:

This is not true. In fact the father, pointed to a Doctor and asked a male nurse: “Is that [Registrant No. 2]”? And he said “yes”. The father then introduced himself to [Registrant No. 2] and asked whether he knew that our wish was to move our daughter … to BCCA. His reply was “she is too sick now”. There was no further discussion and I was never approach by [Registrant No. 2] or was spoken to by him again.


[60] I note that the “history and progress notes” of Registrant No. 2 do specifically state “spoke to father about goal of care … insisting on transferring to BCCA … unable to provide a reason … will contact [the oncologist] at BCCA … awaiting to reply.”

[61] The Inquiry Committee was entitled to proceed on the basis that the progress notes of Registrant No. 2 were made at the time of the events in question. Since there was a discrepancy on this matter it would have been best had College staff placed the Complainants’ specific email reply before the Inquiry Committee rather than providing a more general summary, that reply reiterated what was in the original complaint. It is difficult to see what further steps the Inquiry Committee could reasonably have taken two years later that would have potentially shed more light on this conflict in recollections.

[62] Was the Inquiry Committee’s disposition reasonable? I am very much aware that the father strongly and categorically denies that Registrant No. 2 approached him or had any meaningful conversation with the father about the goals of care.

[63] The difficulty I have, is that the Review Board is not permitted to re-weigh the evidence. The question for me is whether it was reasonable for the Inquiry Committee to have accepted Registrant No. 2’s version of events. This is a particularly challenging task where a complainant and a registrant – the only two people with direct evidence of the alleged discussion – are the only witnesses to the event and the only corroborative information is what might be contained in medical or clinical records made at or near the time of the events.

[64] In this case, the Inquiry Committee decided that it was not in a position to criticize Registrant No. 2 on this issue. The “history and progress notes” of Registrant No. 2 do specifically state “spoke to father about goal of care … insisting on transferring to BCCA … unable to provide a reason … will contact [the oncologist] at BCCA … awaiting to reply.” That being so, the Inquiry Committee was not unreasonable in failing to criticize Registrant No. 2 for making false statements when his clinical records provided some support to his version of events with regard to that conversation.

C. Patient Care Quality Review Board process

[65] The Inquiry Committee was provided with all of the relevant evidence pertaining to the Patient Care Quality Review Board Act process by the Complainants. Clearly, the Inquiry Committee’s investigation on this issue was adequate. The question is whether, in light of the PCQRB Act outcomes, the Inquiry Committee’s disposition was unreasonable.

[66] On that issue, I certainly understand the concern that there is a dissonance between the Patient Care Quality Review Board’s statement that “your directions for end-of-life care were not followed” and the Inquiry Committee’s conclusion that “regulatory criticism of [the Registrants] was not warranted.”


[67] But that apparent conflict is not really a conflict when one recognizes that the College’s regulatory and disciplinary role under the Health Professions Act differs significantly from the objects of the Patient Care Quality Review Board Act. The PCQRB Act is about improving service. The HPA is about determining whether a Registrant has fallen below minimum professional regulatory standards, standards that are about prolonging life. The two questions are not necessarily the same thing. Nor are they necessarily answered by the same investigative and evidentiary methods under the two Acts.

[68] While the Inquiry Committee can take into account any findings made under the PCQRB Act processes, it cannot treat the latter as being binding and must make its own findings under its own mandate.

[69] In this case, the PCQRB Act decisions do not render the Inquiry Committee’s disposition unreasonable.

D. Myocardial Infarction Issue

[70] This is the issue that has given me the greatest difficulty on this review. I have given this matter careful consideration. In particular, I have considered the record, the Inquiry Committee’s different and more limited role than that of the Discipline Committee and the Review Board’s role (which is a review role). Having taken all of that into account, I have concluded that, with regard to this one issue, the disposition must be set aside and remitted back to the Inquiry Committee with directions.

[71] I begin this discussion by returning to Review Board Decision No. 2013-HPA-216(a), where the Review Board stated - in my view correctly - as follows:

[39] Given the accountability purposes of the legislation, one aspect of this is that the Review Board’s reasonableness assessment necessarily and properly gives special weight to the importance of an inquiry committee justifying its decisions (or that of the Registrar) in a transparent and intelligible way in the s.34 summary that the inquiry committee is obligated to provide to the complainant. This does not require that inquiry committees issue lengthy archival reasons. However, on its review the Review Board is to look to see whether and how inquiry committees have explained themselves on key issues, and—given the obligations under s16(2)(i.1)—to avoid too readily assuming that an inquiry committee has “implicitly” considered or decided thus or so where such an assumption is not readily evident or cannot be readily drawn from the Record. This is one example of where the Review Board’s “reasonableness” review, given the statutory context and the purposes of the legislation, may appropriately differ from the reasonableness test as it might be applied by a court.

[72] As stated in Review Board Decision No. 2009-HPA-0001(a) to 0004(a), an Inquiry Committee is “…well advised to explain themselves and their key findings in sufficient detail so that the complainant and the Review Board will understand the key findings of fact, law and discretion that gave rise to the decision on the complaint.” To issue a disposition that is not transparent, intelligible and justified on a key issue, is to invite a disposition to be found not reasonable upon review.


[73] In this case, I find the Inquiry Committee’s disposition, insofar as it failed to meaningfully address the MI issue, was unreasonable.

[74] I turn first to the Complaint. The Complaint specifically asked “Why were the family not told that [the patient] had an MI during her time in Emergency?” and later “Calcium chloride was given. One of the reasons to give this drug is in cardiac resuscitation when the patient’s cardiac contractions are ineffective. Did they in fact resuscitate [our daughter]?”

[75] Clearly, one of the central questions before the investigation concerned whether in fact the patient was resuscitated contrary to the DNR Order.

[76] The hospital record includes a ECG reading from October 25, 2011, at 08:26, which states

***AGE AND GENDER SPECIFIC ECG ANALYSIS*** SUPRA VENTRICULAR TACHYCHARDIA LOW VOLTAGE QRS ANTEROSEPTAL INFARCT, NEW INFERIOR INJURY PATTERN ******** ACUTE MI ******* ABNORMAL ECG WHEN COMPARED WITH ECG OF 25-OCT-2011 00:22, QUESTIONABLE CHANGE IN QRS DURATION ACUTE ANTEROSEPTAL INFARCT IS NOW PRESENT Referred by [Registrant No.2] Confirmed by: [IA, MD]

[77] With regard to this record, Registrant No. 2 responded:

[The mother] complains that [the patient] had a myocardial infarction and the family was not told. I do not believe [the patient] suffered a myocardial infarction as indicated by the 2nd EEG reading of “acute anteroseptal infarct”. Her previous EEG demonstrated SVT and any cardiac damage would be the result of demand ischemia. I understand that the false positive reading may have caused confusion with her family when they reviewed the records.

[78] Registrant No. 3 advised the Inquiry Committee as follows:

I was unaware until the meeting [with the parents] that an ECG had been reported later as showing evidence of an MI. This was not a “denial”. In the face of a tachycardia someone with more expertise than I would have to diagnose such electrical abnormalities; I would have to defer to such a colleague.

[79] The parents’ February 21, 2014, email reply to the Inquiry Committee stated:

About her MI [Registrant No. 2] believes it was a false positive reading, we would like to know why he did a second EEG on a palliative care patient eight hours after the first EEG. Had he seen something suspicious on the monitor? What was the rational [sic] for doing this?


About the MI, it surely had been read by a colleague with expertise, Dr. [A].

[80] The Complainant’s Statement of Points refers to the treatment that followed this reading, including insulin, calcium chloride and the ordering of blood gasses, which in the Complainant’s mind was less consistent with supportive care than with the resuscitation of the patient. The Complainant states that “these questions touch on the essence of resuscitation” and raise the question whether the DNR order was in fact respected in this case. The Statement of Points states:

[Registrant No. 2] does not believe [the patient] suffered an MI but understands how the apparently false positive ECG interpretation could have led to the confusion? A GP [Registrant No. 2] is questioning the findings of the cardiologist [Dr. A] a specialist in the field. That is confusing. [bold in original]

[81] The difficulty that I face is that while the Inquiry Committee obtained responses from Registrants No. 2 and No. 3 on this issue and had the clinical records, neither the Reviewer’s Summary, the record of the Inquiry Committee’s deliberation nor the Inquiry Committee’s reasons for the decision spoke to the issue.

[82] The Inquiry Committee’s function is not just about collecting data. It must review and explain its assessment of that data on the key issues, consistent with the screening role of the Inquiry Committee, which, despite the label “screening”, is not a superficial function: Review Board Decision No. 2011-HPA-0036(b) at paragraphs [43-86]. That is especially important in the case of a question that is central to a very serious complaint, as was the case here.

[83] I don’t wish to be understood as saying that the Inquiry Committee has to address a complaint exactly as it has been framed by a complainant. Nor do I think it has to provide reasons addressing every component of every complaint – in some cases, its conclusions will reasonably be seen as being implicit in its other findings.

[84] In this case, however, the closest the Inquiry Committee came to addressing this issue is in the following generally worded paragraph:

Finally, while the Committee noted your allegation that the physicians ignored your specific wishes and directions when [your daughter] was hospitalized at [the hospital] the Committee found no evidence from the medical records or physicians responses to suggest that they had knowingly pursued any treatment to which you or [the patient] had actively objected at the time. The Committee concluded that all three physicians had acted in good faith in attempting to provide care that was appropriate in [your daughter’s] specific circumstances.

[85] This paragraph could be referring to any number of allegations made in this case. But the MI issue was clearly central to the Complaint. It spoke to whether a registrant acted to resuscitate the patient contrary to her explicit DNR instruction, and whether the treatments given were responding to more than simply elevated potassium and the risk of a heart attack. While the Inquiry Committee did address whether the care in question was consistent with supportive care, it did not specifically address the question whether


the treatment was given, despite the DNR order, because there was an MI of which Registrant No. 2 knew or should reasonably have known.

[86] No one in this case disputes that the patient had unambiguously given a DNR order on admission. The DNR order was a matter of profound significance in this case. The right to refuse treatment is a common law right, a Charter right, and a statutory right: Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s.4.

[87] As unclear as the term “supportive care” might have been - which issue I have found was reasonably addressed by the Inquiry Committee - there could be no ambiguity about the meaning of DNR. Thus, for treatment to proceed based on the view attributed to Registrant No. 3 - that “we could not let her die of a heart attack as that is not what she came in with” - would obviously be very problematic if the treatment was to treat a heart attack.

[88] In my view, the Inquiry Committee’s decision was, on this key issue, not transparent, intelligible or justified.

[89] The College refers to judicial review cases that suggest that a court can uphold a tribunal’s decision, even if reasons are deficient, if the ultimate outcome would be reasonable on the record. While that could apply in some kinds of cases, the problem here is that I am obviously in no position to make the necessary clinical judgment as to whether an MI occurred and whether the Registrants knew or should have reasonably known of that fact, and acted in contravention of the DNR order. In the absence of a reasoned explanation by the Inquiry Committee, there is a gap about which I cannot speculate.

[90] This is clearly a subject that only the Inquiry Committee can answer, and on which it may well decide to consult with Dr. [A], the physician identified on the ECG in the Record and as identified by the Complainant, or take other specialized advice. My directions below concerning this issue will give the Inquiry Committee flexibility with regard to how it wishes to proceed.

XII CONCLUSION

[91] For the reasons given, I have concluded that the Inquiry Committee’s investigation and disposition were reasonable, except insofar as the Inquiry Committee failed to meaningfully address in its disposition the Complaint that the Record shows that the patient experienced an MI which Registrant No. 2 treated based on that MI, contrary to her explicit “Do Not Resuscitate” instruction.

[92] Pursuant to s.50.6(8)(c) of the Act, I am therefore sending this matter back to the Inquiry Committee with these directions in respect of the complaint against Registrant No. 2:


(a) That the Inquiry Committee prepare a supplementary disposition, including reasons, that addresses the MI issue;

(b) That the Inquiry Committee, as part of its deliberations, review the Complainant’s February 21, 2014 email to the College1 and the Complainant’s Statements of Points to the Review Board concerning this issue;

(c) That the Inquiry Committee take such additional investigative steps as it considers appropriate in order to issue a supplementary disposition on the MI issue; and

(d) That the Inquiry Committee’s supplementary disposition, in addition to setting out its assessment of this issue, specify what if any additional investigative steps and inquiries it undertook prior to arriving at its disposition.

[93] I have considered whether to direct the Inquiry Committee to take the specific steps of consulting with Dr. [A] who “confirmed” the MI, or to consult with a cardiologist with regard to this issue. In the end, however, I consider it more appropriate to allow the Inquiry Committee to consider what additional inquiries of investigations may be appropriate. If the Inquiry Committee concludes that it does not have all of the information or the expertise to properly address the matter, it may well decide to consult with Dr. [A] or retain a cardiologist to assist it, or pose any supplementary questions to Registrant No. 2 that it considers would assist it in addressing this issue. I leave these issues for the Inquiry Committee to determine, without limiting the Review Board should a supplementary disposition give rise to further proceedings before the Review Board.

[94] In making this order, I want to make it clear that I am not dictating what the outcome of the new disposition should be. Consistent with the role of this Board and that of the Inquiry Committee, my intent is to ensure no more or less than that the Inquiry Committee directly address the issue that the Complainants have raised concerning the MI issue.

[95] In making this decision I have considered all of the information and submissions whether or not specifically identified in this decision.

XIII NON JURISDICTIONAL OBSERVATIONS

[96] I consider it appropriate to conclude with some observations of a non-jurisdictional nature. While I know it is unusual for the Review Board to include such observations in its decisions, it is my view that they are warranted in the difficult circumstances of this case, including the Complainants determination in this matter to effect change and the deep disappointment that their daughter’s request for end of life care was not realized.

1 Based on the record, which the College verified as having been complete, investigative staff

summarized but did not provide the Inquiry Committee with the Complainants’ February 21, 2014 email reply to the Inquiry Committee arising from the Registrants’ responses.


[97] The Complainants have spent four years, seeing it as their public duty to follow each available avenue of complaint and review, determinedly pursing each avenue open to them. They sought to bring about change through the College that would allow all physicians to know that terminally ill patients should be entitled to the type of end of life care they ask for. With the material prepared by his wife the Complainant submitted an Application to the Review Board through the last avenue open to him. His intent was to persuade the College to embrace change on this matter.

[98] There were many factors that led to what the Complainants saw as the “disconnect” in the standard of care sought and the type of medical care delivered by the three Registrants. In this case the Registrants were faced with a lack of College guidelines or standard for end of life care for terminally ill patients, no specific hospital protocols in place for palliative care patients admitted to ER, and they were without benefit of the patient’s BCCA medical records. It is reasonable to believe that for these reasons and the fact Registrant 1 and 2 were ER physicians, they may well not have considered that the reference to “supportive care” required a standard of care that significantly differed from the existing College standard of care these two Registrants practiced day to day in the ER, which was to prolong their patients’ life and prevent death. That Registrant 3, the Director of hospital palliative care unit did not alter the patient’s care more in keeping with end of life care is on its face more difficult to rationalize, but was explained in his detailed response to the College. That said, it was not unreasonable for the patient and the Complainants to believe that care in the palliative care unit of the hospital would be less aggressive and more in line with the type of palliative care they had been receiving prior to admission.

[99] The College is aware that every competent adult patient has the fundamental right to refuse treatment - a right that is recognized at common law, by statute, and under the Canadian Charter of Rights and Freedoms. In the British Columbia Health Care (Consent) and Care Facility (Admission) Act, that right is described as follows:

4 Every adult who is capable of giving or refusing consent to health care has (a) the right to give consent or to refuse consent on any grounds, including

moral or religious grounds, even if the refusal will result in death,

(b) the right to select a particular form of available health care on any grounds,

including moral or religious grounds,

(c) the right to revoke consent,

(d) the right to expect that a decision to give, refuse or revoke consent will be

respected.

[100] The fundamental right to personal autonomy does not disappear at the door of the ER. The question then becomes how to ensure that it is meaningfully recognized in that context, and what role the College can to play in ensuring that its registrants fully respect that right given that, as the College’s decision in this case makes clear, terms like “supportive care” and “comfort care” have no clear meaning at present.


[101] In my respectful view, this is an area where the College has a proper role to play in providing regulatory guidance and setting standards for all physicians for palliative care patients who do not wish to prolong their life and who wish end of life care with minimal medical intervention.

[102] It would also be an inadequate response to say that this is solely a matter for medical judgment. Such a view would give the patient’s rights and views second place, when in fact they must be first.

[103] In recognition of the public shift towards self-directed choices for end of life care, the BC Health Ministry and Doctors BC, the physicians’ professional association, have produced: guidelines for palliative care available online as well as My Voice-Advanced Care Planning Guide available on the BC Health Ministry’s website. It is a guide for patients with the help of their family physician to prepare for end of life care and includes forms for specific directives for patient and family members to sign and make available when under physicians and hospital care.

[104] While it is possible that the College has already embarked on addressing end of life and palliative care issues separate and apart from Physician Assisted Death, I offer the respectful suggestion that the College consider setting defined and specific regulatory standards for physicians. That would include ER and hospital physicians proactively obtaining and recording specific instructions from any patient (or the patient’s representatives where the patient cannot do so) entering the ER with a request for palliative “supportive care” or “comfort care”.

[105] Requiring communication, clarity and specificity on matters of such importance is in the interests of patients, their families and the College’s registrants.

[106] I note that on January 12, 2016, the Canadian Cancer Society released a report entitled Right to Care; Palliative care for all Canadians. A far reaching and up to date report on the state of palliative care in Canada. I encourage the College to review this document.

“Victoria Kuhl” Victoria Kuhl, Panel Chair Health Professions Review Board February 11, 2016


APPENDIX 1

The 17 Questions included in the Complaint to the College

The Complaint posed 17 questions in 15 paragraphs. The questions read:

(1) Why did all three doctors who treated [the patient] ignore her directive for supportive care only? [The patient] was a competent person, [Registrant No. 1] understood completely and wrote down [the patient] and family’s directive.

(2) Why was [the patient’s] oncologist not contacted? It says in [Registrant No. 2’s] History and Progress Notes in [the patient’s] chart “will contact [the oncologist] at BCCA. Awaiting for reply”. Nowhere does it say he did contact her and she certainly did not get a message, as she phoned us to ask why.

(3) Why did [Registrant No. 2] not contact BCCA and get the physician on call to give him information about [the patient], when the reply he waited for did not come?

(4) Did [Registrant No. 2] in fact not contact BCCA because he did not want to tell them what treatment [the Patient] was getting and that she was now much worse after treatment?

(5) Why were the family not told that [the patient] had an MI during her time in Emergency?

(6) Why did [Registrant No. 3] deny that [the patient] had an MI?

(7) Why was [the patient] given IV insulin without first being given an amp of D50W? To give IV insulin to a non-diabetic patient without D50W surely will cause them to crash. There is no time on the orders page and one order reads “insulin 10 units R in 50 ml over 10 minutes.” 50 ml of what?

(8) Why did [Registrant No. 2] write in his notes that he “spoke to the pt. and father about the goal of care”? In fact he had written above that saying “drowsy, confused … unable to examine the patient at this time”… if this was so it would have been difficult to speak to her about the goal of care. In fact he did not speak about the goal of care to her father either, nor was the father, as [Registrant No. 2] writes “insisting on pt. being transferred and unable to give a reason.” In fact [the patient’s] father approached [Registrant No. 2] and only asked him if he had got the message that [the patient] wanted to be transferred and [Registrant No. 2] replied “she is too sick now.” End of conversation.

(9) In an effort to hydrate her why did the doctors give such a large volume of fluid as a bolus without regard for clinical response e.g. output? Surely, the amount of fluid given by IV must be limited to what a person can absorb or excrete. [The patient] had ascites and her limbs were edematous. We do not see in any of the doctors’ orders were [sic] it says to record output.


(10) Why, when her lab report came back with GFR26 and elevated potassium 6.8, did they not mention anything about renal failure in her chart? It would have informed the palliative care nurse.

(11) Insulin was given to move potassium back into the cells. Why did they continue with it for so long when the only way to get rid of potassium is through the kidneys and she was anuric? Is it not a fact that any non-essential medication be stopped when the patient is actively dying?

(12) Calcium chloride was given. One of the reasons to give this drug is in cardiac resuscitation when the patient’s cardiac contractions are ineffective. Did they in fact resuscitate [the patient]?

(13) Blood gasses were ordered and cancelled when the nurse was unable to obtain them. Is that something that would normally be ordered when a patient is receiving supportive care?

(14) In the meeting with [Registrant No. 3] in January 2012, when [the patient’s] mother asked why continue with insulin all night in palliative care, he gave a questionable analogy saying, “if he has a diabetic patient for example he would never discontinue the insulin.” That is completely different. [The patient] was a non-diabetic and the insulin for her was a non-essential drug, why did he not stop it?

(15) We were told twice by [Registrant No. 3] that “we could not have her die from cardiac arrest”. In fact cardiac arrest is a natural death unless caused by a doctor’s treatment. Was [the patient] in fact kept alive, after she almost died, to prevent her death being a coroner’s case?

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