Self-Determination Threatened by DNR Orders: David Martin Speaks Out

23 December 1998

How did the MLPD get involved in the Sawatzky case?

On 30 October 1998, a Mrs. Sawatzky phoned me and expressed concern about what was happening with her husband who is in a long term care facility. She said that the institution's medical team had put a Do Not Resuscitate Order (DNR) on her husband's file, against her wishes and against his own wishes. She was quite distressed about it and wasn't really sure what she could do. I informed her that we had been interested in this whole issue of Do No Resuscitate Orders for about a year now, because of a court decision in November 1997 that said that doctors alone could decide whether or not to put DNR orders on a file. I ask her if she had a lawyer. She said that she did. She said that they were beginning to do whatever they could to change the situation. I also told her that we had a lawyer working on our broader concerns about DNR orders and the status of doctor power in this area. I told her that I could get our lawyer to talk to her lawyer and share information.

What are the facts of the Sawatzky case?

As I understand it, Mr. Sawatzky, the gentleman in question, is an elderly person. He is a 79 year old fellow who has some medical problems— one of them being Parkinson' s Disease.

He has been living in Riverview for about a half a year. He was originally admitted there, according to Mrs. Sawatzky, to have therapy. It was their idea that it would be a short term stay. They live out of town in Beausejour, Manitoba. The medical facility there was not able to provide the kind of support that they needed, so they came into Winnipeg to Riverview for therapy.

It was never intended to be a palliative care situation. The idea was that he would go there, stabilize and possibly return home or possibly go elsewhere for other kinds of treatment. It was only meant to be a short term stay.

Why did the Manitoba League become involved in this case?

We have been very concerned about the whole issue of DNRs since the court decision of a year ago, which said that doctors alone could put DNR orders on patients' files and did not need to get consent or did not even need to consult patients' families. When Mrs. Sawatzky came to our attention, we realized that this is exactly the kind of situation we had feared since that decision of a year ago. Our members and our Provincial Council have the belief that patients (or their substitute decision makers) need to have some control over when and how DNR orders are put on their files.

We have been researching the DNR issue. We have recently written to the Minister of Justice for Manitoba asking him to investigate the law in this area and we have also written to the Public Trustee as well. After the decision of a year ago, the Public Trustee issued a statement that their office will not be involved any more in this issue area. So we are concerned about that as well.

As it turns out Mr. Sawatzky is currently under the guardianship of the Public Trustee and because the Public Trustee has basically backed away from the whole area; therefore they are not really doing anything to represent Mr. Sawatzky.

Why is Mr. Sawatzky being represented by the Public Trustee when his wife seems to be very interested in his welfare?

I don't know the absolute answer to that one. It appears there was a concern by the Riverview Health Centre that Mrs. Sawatzky may not have been making appropriate decisions for her husband. They apparently asked the Public Trustee to intervene and take over Mr. Sawatzky's decision making authority. It appears that the Public Trustee has accepted that and has taken over.

The Globe and Mail explained the situation in the following terms, "The Public Trustee took over the legal supervision of Mr. Sawatzky after his wife refused to accept the hospital's policy of non-resuscitation. The hospital contends that Mr. Sawatzky is not competent to make his own medical decisions and that his wife is not competent to act for him since she disagrees with medical experts." (11 November 1998)

It is something that we are going to be looking into more—how the Public Trustee can take over a person's representation when there appears to be a capable caring person there who most likely wants to do it herself. Mrs. Sawatzky says she is now trying to get the Public Trustee out of her husband's case.

What is the extent of the MLPD's involvement in the case?

We had been working with a lawyer even before Mr. and Mrs. Sawatzky came to our attention. It had been our intention to raise this issue with the legal system and the government. When Mrs. Sawatzky phoned me I talked to her about sharing information, because we had done a lot of research in this area already and her lawyer could benefit from our work. Also we decided that we wanted to be an intervenor in the case to help the court understand that the decision of the court could have a broader impact on people than on simply Mr. and Mrs. Sawatzky. Depending on how the decision goes we feel that it is an important case for anybody who might end up in a medical institution, particularly people with disabilities who are more vulnerable than your average patient.

The court granted us full intervenor status, which means that we have full party status—we can argue and make full verbal representations before the court. So we were pleased by that.

The court ordered an emergency injunction to undo the DNR order. Eventually, there will be a full hearing on the bigger issue of should in fact doctors be allowed to do this to Mr. Sawatzky. We do not know when that full hearing will take place. I heard the lawyers discussing that it could be a couple of months from now. I am not sure how long that argument will take. Then the decision, of course, would have to come down. Like any court case it could be appealed.

What policy work do you think needs to be done on this issue?

Quite a bit actually.

There does need to be some work looking at what the role of patients is in this area and what is the role of doctors.

There also needs to be a look at what happens when the public trustee is involved and how that office can play a role in protecting the rights of vulnerable people. Now in Manitoba on this issue they have played no role whatsoever.

They simply washed their hands of the DNR issue. They will not represent the interests of patients in this area, which I think is a serious abdication of their role.