By Thaddeus Mason Pope, 23rd June 2021
On Friday June 11 2021, I had the pleasure of watching The Honorable Mr. Justice Hayden deliver judgment in a Court of Protection case involving the withdrawal of life-sustaining treatment. I have been reading Court of Protection judgments for years and have even collected many on my website. But this was my first opportunity to see and hear a senior COP judge. I am grateful to Celia Kitzinger both for helping to raise awareness of the publicly accessible nature of COP hearings and for informing me of this specific proceeding.
I am a law professor based in the United States, though I am presently the Fulbright Canada Research Chair in Health Law, Policy, and Ethics at the University of Ottawa. I have been writing and consulting on end-of-life treatment conflicts for over a decade. Therefore, I want to compare the Court of Protection to analogous dispute resolution mechanisms in Canada and the United States.
All three mechanisms resolve the small subset of conflicts that are intractable to informal and intramural processes such as mediation and clinical ethics consultation. And while all three mechanisms adjudicate issues other than end-of-life treatment disputes, these may be the most consequential type of case. Below, I compare how each mechanism affords procedural due process in terms of (1) neutrality, (2) transparency, and (3) competence.
Case No. 1375980T before Mr. Justice Hayden on 10th – 11th June 2021
While emotionally fraught, the case at issue did not appear legally complicated. The patient, GU, was an incapacitated 70-year-old man. On 14th April 2014, the former pilot had suffered a catastrophic hypoxic brain injury after accidentally electrocuting himself in his garden pond. He has been completely unconscious and unable to interact with his environment ever since. No party disputed that the patient would not have wanted to live in this condition. None of his family believed that he would wish to continue to live in his current situation.
The primary issue in this case concerned one specific form of life-sustaining treatment: clinically assisted nutrition and hydration (CANH). The patient’s wife, siblings and children all agreed that it is not in GU’s best interests to continue to provide him with CANH. But GU’s son disagreed. He did not want his father to die from dehydration.
Mr. Justice Hayden ultimately sided with the brother and against the son, ruling that life-sustaining treatment was not in the patient’s best interests and should be withdrawn. But the judge did this only after thoroughly explaining and acknowledging the son’s perspective. Because the lawyers were transcribing his judgment, Mr. Justice Hayden spoke with the slow pace and distinct enunciation of former U.S. President Barak Obama. But this has the perhaps unintended effect of permitting public observers to follow easily. And Mr. Justice Hayden spoke directly to the patient’s son, demonstrating that he had carefully considered the son’s concerns.
Neutrality of Decision Maker
The central element of procedural due process is the independence and neutrality of the decision maker. It is unfair to have a conflict adjudicated by someone who either has a stake in the outcome or has a relationship with one of the parties. The Court of Protection earns top scores on this aspect of procedural due process. Mr. Justice Hayden, like all COP judges has no relationship with the patient, the patient’s family, or the hospital.
The key Canadian analog to the Court of Protection, the Consent and Capacity Board also scores well on this element of procedural due process. In Ontario, conflicts over life-sustaining treatment are often brought to the CCB, a specialized quasi-judicial administrative tribunal. Cases are heard by three member panels: a lawyer, a psychiatrist, and a public member. All members are independent from the parties.
In contrast to the COP and CCB, in California and Texas, intractable end-of-life treatment conflicts are typically adjudicated by hospital ethics committees or medical appropriateness review committees rather than by a court or quasi-judicial tribunal. Coincidentally, I participated as a voting member on such a committee on the same day that I observed the COP hearing. Most or all members of hospital ethics committees are employed by or otherwise affiliated with the same hospital that is treating the patient. These committee members are not neutral and independent. Indeed, a massive 150-page appellate decision recently challenged the legitimacy of these committees for this reason.
Transparency of Proceedings and Judgment
Like neutrality, transparency is a core element of procedural due process. The Court of Protection operates in an admirably open and transparent manner. First, the proceedings themselves are open to the public, and have regularly attracted Public Observers since the pandemic forced hearings to be held remotely (rather than solely in court buildings) and led to the forming of the Open Justice Court of Protection Project. Hearings before Mr. Justice Hayden are especially well attended by Observers. Second, Mr. Justice Hayden carefully, lucidly, and compassionately explained the reasons for his decision not only to the parties but also to the public observers. Third, Mr. Justice Hayden will later publish a written version of the judgment he delivered orally. This is typical. The Court of Protection regularly prepares written judgments offering reasoning and justification for decisions, and these are publicly available on BAILII.
The Ontario CCB is somewhat less open and transparent than the COP. While the CCB publishes written decisions that are publicly available on CANLII, its evidence gathering proceedings are not open to the public. But starkly different from both the COP and CCB, hospital ethics committees in California and Texas operate with the least openness and transparency. No aspect of their proceedings is observable by the public. Nor do hospital ethics committees prepare written decisions that are publicly available. Moreover, while the parties may get a letter explaining the committee’s decision, these are typically only a single page, offering far less reasoning and explanation than the COP or CCB. While some level of secrecy may be required by U.S. healthcare privacy laws, there is not even a database of redacted anonymized decisions. And while COP and CCB judgments are regularly reviewed by appellate tribunals, hospital ethics committee judgments are almost never judicially reviewed.
Competence of Decision Maker
The Honorable Mr. Justice Hayden is an experienced professional judge. This was apparent in his formal and eloquent manner. Moreover, the Court of Protection has extensive rules for evidentiary submissions, arguments, and other matters. These assure that the matter is carefully and fairly investigated, explored, and assessed.
Still, some of what I observed is surely specific to Mr. Justice Hayden. He visited the patient in person early on the morning after the main body of the hearing and before delivering his judgment. Mr. Justice Hayden did this even though the patient was unconscious and unable to participate in the proceedings. And he described the scene as if he were writing a novel or painting a picture. Mr. Justice Hayden colorfully described the patient’s room, the garden below, and the nurses caring for the patient. He apparently did this for the benefit of family who live in various countries around the world, unable to visit the patient because of the pandemic. Mr. Justice Hayden clearly paused to absorb and reflect on the incapacitated patient whom he was charged with protecting. This helped convey how seriously the judge approaches his solemn task.
While the members of Ontario CCB panels are not professional judges, they are vetted and trained. And like the COP, the CCB also operates under rules of practice. In contrast, hospital ethics committees in California and Texas are comprised primarily or entirely of clinicians at the hospital. They receive little or no training in dispute resolution. And there are no rules that dictate substantive or procedural standards. Consequently, hospital ethics committees are unconstrained both in how they run the proceedings and in how they reach decisions.
I am grateful to the Open Justice Court of Protection Project for making it possible for me (an American in Ottawa) to be a public observer in the (virtual) court. I have a deepened respect for the COP and will help other jurisdictions view it as a model dispute resolution mechanism.
Thaddeus Mason Pope is a law professor at Mitchell Hamline School of Law in Minnesota USA. He is currently the Fulbright Canada Research Chair in Health Law, Policy, and Ethics at the University of Ottawa. He tweets @ThaddeusPope.