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Issues of Vulnerability and Equality: The Emerging Need for Court Evaluations of Physicians' Fiduciary Duties in High Stakes End-of-Life Decisions.

At the heart of high stakes end of life (EOL) decisions such as withdrawal of life-sustaining treatments (WLST) or medical assistance in dying (MAiD), are concerns that vulnerable people in our society need to be legally protected from prematurely ending their own lives or from having their lives inappropriately ended by healthcare teams predisposed to negatively assess their quality of life. Recently, two Supreme Court of Canada rulings in Rasouli and Carter (MAiD) have clearly emphasized the role of consent in providing legal protections to people at the end of life. The role of the medical standard of care is less clear: though the Supreme Court in Rasouli was careful to state there had been no ruling on the medical standard of care with respect to WLST, the Court did state that standard of care considerations would be important in such decisions. In contrast to Rasouli, the result of the Carter ruling was that consent alone is insufficient protection for physician assisted death without a medical standard of care. Subsequently, in its new legislation, the Canadian Government restricted access to MAiD on the grounds that some people - those who lose capacity, with mental illnesses and mature minors - are so vulnerable that this potential choice at the EOL must be denied. In simple terms, for some, consent and the medical standard of care are insufficient protections. Such claims and their consequences are a sign of an emerging and significant problem: the reduction of medicine to a mere contractual relationship while disregarding its fiduciary nature simply because the courts have, in the words of Chief Justice McLachlin, "never reviewed physicians' good faith treatment decisions on the basis of fiduciary duty". The goals of this article are to explore issues of vulnerability and equality, the existing protections in both medicine and law and the emerging need for courts to evaluate physicians' fiduciary duties in high stakes EOL decisions in order to resolve conflicts with respect to WLST, to ensure access to MAiD and to promote the future aualitv of EOL care for all Canadians.