An Ontario judge has ruled that a lawsuit against a Toronto hospital can proceed. The hospital faces allegations that it violated the constitutional rights of patients who were seeking liver transplants; the hospital refused to perform the procedure on patients who had not stopped drinking for a prolonged period of time.
The ruling is a technical one, but nonetheless important.
Justice Andras Schreck of the Ontario Superior Court rejected arguments put forward by University Health Network that the Charter of Rights and Freedoms does not apply to them because they are a private entity that made an internal policy decision to refuse the transplants.
The court ruled that when government delegates responsibility for an important public program such as medicare to a private entity, its decisions must respect the Charter.
The ruling has important implications because almost all health services in Canada are contracted out to not-for-profit (such as UHN) and for-profit entities.
Then there is the thorny issue at the heart of the lawsuit itself: Can governments, hospitals and individual physicians say no to providing a treatment without violating the Charter rights of patients?
There is pretty broad consensus that it is impossible, practically and financially, to provide all care to all people all the time. The fundamental question, then, is how can we – and should we – ration health care?
In other words, hospitals, physicians and other providers have to discriminate, but how can they do it in a fair and transparent manner?
What are, in the language of the Constitution, the “reasonable limits” to providing care? What is the balance between patient rights and responsibilities? And who determines those boundaries?
These are some of the questions at the heart of the lawsuit brought forward by the families of two men, Mark Selkirk and Mark Williams.
Mr. Selkirk was admitted to Toronto General Hospital in early November, 2010, with acute alcoholic hepatitis. He needed a liver transplant but was told that, to be eligible, he had to be abstinent from alcohol for six months. His wife offered to donate a part of her liver (live transplants were not subject to the sobriety rule), but the hospital still refused. Mr. Selkirk died two weeks later.
Debra Selkirk has since made it her life’s mission to strike down the rules, which she says discriminate unfairly against people such as her husband, who suffered from substance use disorder.
Trillium Gift of Life Network, the government agency that co-ordinates organ and tissue donation in Ontario, loosened its rules a bit, setting up a pilot project where it replaced the rigid six-month sobriety rule with a criterion that patients must “commit to alcohol abstinence.”
Mr. Williams, who was hospitalized in May of this year, felt unable to make that commitment. He was refused a transplant and died, and his family joined the lawsuit.
A history of alcohol use or misuse should not automatically make a patient ineligible for a liver transplant. Nor should we, a priori, refuse lung transplants to smokers.
But organs are among the rarest of commodities. We need to ensure they go not only to those in most need, but those who will benefit most. As a health system, we must maximize our return on investment.
If someone who receives a new liver resumes drinking alcohol, their recovery will likely be impaired. What we don’t know, however, is how likely someone with substance use disorder is to relapse. The studies are all over the map.
Ultimately, it has to come down to the clinical judgment of health professionals – in this case hepatologists and transplant specialists.
The new court ruling said hospital policies are subject to the provisions of the Charter. It is not clear whether the decisions of individual physicians are subject to the same rules.
There have been countless complaints to regulatory bodies and human-rights commissions about these issues: Physicians who refuse to treat patients because they are smokers, surgeons who refuse surgery to people with obesity, hospitals that refuse transplants to people who drink and governments that refuse to approve or pay for a drug because costs outweigh benefits.
These rulings invariably come to similar conclusions: Health-care providers cannot refuse care based on prejudices or stereotypes, but they can refuse or limit care if a medical condition could result in significant complications or costs.
But exclusion criteria must be clear and based on evidence, and we can’t let bias creep in when making difficult rationing decisions.
Finding the juste milieu is never going to be easy, but we have to debate these mind-bogglingly complex questions openly, not just punt them to the courts.
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