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Law & Ethics. Camille Ciarniello Director, Risk Management and Patient Safety Providence Health Care For the Health Care Ethics Seminar March 30, 2009. Objectives. At the end of this session, participants will be able to: describe how the law in British Columbia has evolved;

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Law ethics

Law & Ethics

Camille Ciarniello

Director, Risk Management and Patient Safety

Providence Health Care

For the Health Care Ethics Seminar

March 30, 2009


Objectives
Objectives

At the end of this session, participants will be able to:

  • describe how the law in British Columbia has evolved;

  • describe the role of ethics in the formation of BC laws; and

  • have a practical opportunity to analyse case law using a legal and ethical lens.


Origin of our laws
Origin of our laws

  • Common law: a law established by following earlier judicial decisions

  • Laws or legal principles that have been established by courts over the years. May be codified into a statute or overruled by a statute passed by the government.


  • The traditional legal code of England that developed in the Middle Ages from custom and precedent, and has been expanded by subsequent legal decisions. Unlike statutory and constitutional law, it is not necessarily gathered in written form in a single place.

  • Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the "common sense of the community, crystallized and formulated by our ancestors".


Beatty v cullingworth 1896 england
Beatty v. Cullingworth Middle Ages from custom and precedent, and has been expanded by subsequent legal decisions. Unlike statutory and constitutional law, it is not necessarily gathered in written form in a single place. (1896) England

  • Plaintiff scheduled for abdominal surgery

  • Before going in, she told the surgeon that if both ovaries were diseased he was to remove neither, as she was about to be married

  • The surgeon replied, "You must leave that to me" or "You may be sure I shall not remove anything I can help"

  • The Plaintiff denied hearing the remark

  • The surgeon removed both ovaries


"The object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“

Justice McCardie

Prager v. Blatspiel 1924 England


Marshall v curry 1933 3 dlr 260 nsj
Marshall adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. Curry[1933] 3 DLR 260 NSJ

  • 52 yo “seafarer” with 30 year history of spinal trauma

  • Numerous admissions for urosepsis

  • Left inguinal hernia repaired during one 6 month hospital stay

    • Left testicle removed at the same time without consent as it “might have caused trouble”


Mulloy v hop sang 1935 1 wwr 714 alt ca
Mulloy adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. Hop Sang[1935] 1 WWR 714 (Alt CA)

  • Defendant injured his hand in an MVA

  • Wrapped it in an old cloth and presented to hospital

  • Told the surgeon to “fix it up” but not amputate as he wanted to see a physician he knew in his home town

  • Physician said he would be guided by conditions he found

  • Hand amputated

  • Defendant didn’t pay – physician sued!


Parmley v parmley yule 1945 4 dlr 81 scc
Parmley adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v Parmley & Yule[1945] 4 DLR 81 (SCC)

  • Plaintiff wished to have two teeth extracted at the same time as her tonsillectomy

  • Physician suggested his brother, a dentist, perform the extraction and she agreed

  • No pre-operative consult took place

  • The dentist discussed the procedure with his brother over tea at their mother’s –

  • Dentist removed all of the upper teeth and one molar


Murray v mcmurchy 1949 2 dlr 442 bcsc
Murray adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. McMurchy[1949] 2 DLR 442 (BCSC)

  • C-section delivery after an extended labour and failed forceps attempt

  • Multiple fibroids discovered

  • Physician decided to do a tubal ligation in order to prevent the Plaintiff from undergoing the hazards of a second pregnancy


Male v hopmans et al 1965 oj 1138 hcj
Male adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. Hopmans et al [1965] OJ 1138 (HCJ)

  • Patient in hospital with knee infection not responding to treatment

  • Risk that the knee joint would be destroyed, or the infection might spread

  • Dr. Hopmans determined that IM and intra-articular injection of neomycin presented the best option for recovery

  • Known 10-20% risk of hearing impairment with treatment


Male v hopmans con t
Male adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. Hopmans con’t

  • A week after the commencement of the treatment, Mr. Male asked what was meant by the warning on the label of the neomycin

  • Dr. Hopmans told him not to worry about it:

    “It is in my view not reasonable to infer that the doctor’s failure to give to his patient an opportunity two days earlier to elect to discontinue the dosage then being administered constituted an effective cause of the plaintiff’s ultimate misfortune”


Reibl v hughes 1980 2 scr 880 scc
Reibl adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“v. Hughes [1980] 2 SCR 880 SCC

  • 44 year old patient suffering from headaches brought on by hypertension

  • Incidental finding during physical workup of significant narrowing of the left carotid artery (unrelated to hypertension)

  • Surgeon believed risk of stroke related to narrowing was 10% in each untreated year


Reibl v hughes
Reibl adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“v. Hughes

  • Risk of stroke related to surgery not disclosed to patient

  • Patient suffered a massive stroke following surgery leaving him impotent and hemiplegic

  • Sued in both battery and negligence

  • Reibl was 1½ years away from qualifying for a lifetime pension from Ford


Mason v forgie 1986 nbca
Mason adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“ v. Forgie (1986) NBCA

  • Chiropractice case

  • Mr. Mason suffered a stroke after a neck manipulation

  • Court found that there was no negligence in the manipulation of Mr. Mason’s neck

  • However, Dr. Forgie found liable for not disclosing a known, albeit remote, risk


Malette v shulman 1990 72 o r 2d 417 ca
Malette adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“v. Shulman (1990) 72 O.R. (2d) 417 (CA)

  • Woman severely injured in a car accident and brought unconscious to ER

  • A nurse found a card in the patient's wallet indicating she was a Jehovah’s Witness and requesting that she be given no blood transfusions under any circumstances

  • Dr. Shulman of the opinion that a transfusion was necessary to save her life and personally administered transfusions to her


Malette v shulman
Malette adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law.“v. Shulman

  • The right of self-determination which underlies the doctrine of informed consent also encompasses the right to refuse medical treatment

  • The instructions on the card imposed a valid restriction on the emergency treatment

  • No liability to be held where doctor or other health provider relies on the card – the patient must accept the consequences of their decision to carry the card


Health care consent and care facility admission act rsbc 1996 c 181
Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c. 181

Consent rights

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, and

(e)the right to be involved to the greatest degree possible in all case planning and decision making.


Van mol v ashmore 1999 bcca 6
Van Mol RSBC 1996, c. 181 v. Ashmore 1999 BCCA 6

  • 16 year old girl underwent the third in a serious of surgical procedures to correct a congenital coarctation of her aorta

  • Significant difficulties were encountered during the operation

  • Although the coarctation was repaired, the girl was rendered a paraplegic and suffered a recurrent laryngeal nerve injury as a result


Minors
Minors RSBC 1996, c. 181

  • At common law, a mature minor is considered capable of giving consent to a procedure in his/her best interests

  • Absent specific legislation limiting that right based on age, capacity is determined the same as if they were adult:

    • Are they able to understand the information?

    • Are they able to exercise judgment?

    • Are they able to understand the consequences in relation to themselves?


Van mol v ashmore
Van Mol RSBC 1996, c. 181 v. Ashmore

  • 1. As a matter of law was the informed consent of Melanie required in this case? If so did the Reibl standard apply or did an Infants Act standard apply or did both standards apply or did some other standard apply?

  • 2. As a matter of law was the informed consent of Mr. and Mrs. Van Mol required in this case? If so did the Reibl standard apply or did some other standard apply or did both apply?


Van mol v ashmore1
Van Mol RSBC 1996, c. 181 v. Ashmore

  • In Canada, the common law recognizes the doctrine of a mature minor, namely, one who is capable of understanding the nature and consequences of the proposed treatment. Accordingly, a minor, if mature, does have the legal capacity to consent to his or her own medical treatment…what s. 16 does is give protection to doctors who might otherwise be at risk in relation to the commission of an act of battery…because they are uncertain of a particular young person's capacity to give consent.


Hughes next friend of v alberta director of child welfare 2002 a j no 518
Hughes (Next friend of) RSBC 1996, c. 181v. Alberta (Director of Child Welfare [2002] A.J. No. 518

  • 16 ½ year old girl diagnosed February 14, 2002 with AML

  • Baptised member of the Fellowship of Jehovah’s Witnesses

  • Child and family uniform in rejection of transfusion

  • Application to Director for child to be apprehended

  • After several hours of evidence Bethany’s father consented to the transfusion

  • Bethany and her mom continued to refuse


Hughes next friend of v alberta director of child welfare
Hughes (Next friend of) RSBC 1996, c. 181v. Alberta (Director of Child Welfare

  • Bethany determined to be a mature minor

  • However, legislation replaces common law

  • Legislation says to “take into consideration” the mature minor’s wishes

  • Overwhelming evidence that the treatment regime recommended was the only curative treatment available

  • Court determined it was in Bethany’s best interests to have the treatment


Rodriguez v bc ag 1993 bcj no 461 ca
Rodriguez RSBC 1996, c. 181v. BC(AG) [1993] BCJ No 461 (CA)

  • 42 year old woman with ALS

  • First symptoms in April 1991

  • By November 1992 she was only able to walk 20’, requiring assistance with all ADLs, difficulty swallowing and her voice and cough are weak

  • Experiencing spasms daily in her legs and hands with associated pain in her shoulders and back

  • Prognosis was a 6-18 month life expectancy with complete inability to speak and swallow within weeks


Rodriguez v bc ag
Rodriguez RSBC 1996, c. 181v. BC (AG)

  • Initial Petition heard December 1992

  • Heard at BCCA February 1993 and SCC May 1993

  • Sought an order that s. 241 of the Criminal Code be declared invalid, pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, on the grounds that it violates her rights under ss 78, 12 and 15(1) of the Charter


Criminal code
Criminal Code RSBC 1996, c. 181

s 241. Every one who

  • counsels a person to commit suicide, or

  • aids or abets a person to commit suicide,

    whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.


1. The RSBC 1996, c. 181Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.


Rodriguez v bc ag1
Rodriguez RSBC 1996, c. 181v. BC (AG)

Dissent Lamer CJ

  • s. 241(b) infringes the right to equality in s. 15(1) of the Charter

  • This infringement cannot be justified under s. 1 of the Charter

  • The remedy should be the availability of a constitutional exemption sought by way of application to a superior court


Rodriguez v bc ag2
Rodriguez RSBC 1996, c. 181v. BC (AG)

Majority – Sopinka J

  • s. 241(b) deprives a person of autonomy over person in a manner which impinges on the security of the person

  • This deprivation, however, is not contrary to any principles of fundamental justice and therefore does not infringe s. 7 of the Charter

  • s. 241(b) infringes s. 15 of the Charter, but is clearly justified under s. 1


Golubchuk v salvation army grace general hospital 2008 mbqb 49
Golubchuk RSBC 1996, c. 181v. Salvation Army Grace General Hospital 2008 MBQB 49

  • Patient suffered a severe brain injury from a fall in 2003

  • Underwent a partial temporal lobectomy in 2005

  • Subsequently residing in a care facility

  • Transferred to acute care on October 26, 2007 with pneumonia and pulmonary hypertension

  • Condition deteriorated and transferred to ICU on November 7, 2007


Golubchuk v salvation army grace general hospital
Golubchuk RSBC 1996, c. 181v. Salvation Army Grace General Hospital

  • ICU physicians of the view that the ventilator and life supports should be withdrawn

  • Consulted with ethicist who provided a plan of action

  • Family advised of plan at family meeting on November 20, 2007

  • Second family meeting on November 29 following an assessment by the ICU Director

  • Interim injunction granted on an emergency basis without notice on November 30, 2007


Decision
Decision RSBC 1996, c. 181

  • The Court determined that the question to be answered was not whether the doctors could discontinue the ventilator, or whether Jewish law trumps the decision of the physicians

  • The narrow question was whether the Court should continue the interim injunction until trial

  • The role of the court was to resolve factual disputes and advise of the legality or illegality of disputed decisions before the patient is dead


Decision1
Decision RSBC 1996, c. 181

  • There were questions of both law and fact that required an answer

  • Damages would be completely inadequate as a remedy in the event the physicians made the wrong decision

  • The balance of convenience favoured the patient

  • The physicians placed the patient on the ventilator initially, so it made sense to maintain the status quo

  • Special considerations


  • Family’s lawyer RSBC 1996, c. 181“We won the injunction. That is a precedent. There are no others in this kind of case. So people who are faced with what Samuel Golubchuk was faced with, they know there is something to rely on in the future”.

  • Bioethicist Arthur Schafer, PhD “At the human level one has to feel relief for Mr. Golubchuk, because he was not in a vegetative state but in a near-vegetative state – he was feeling pain and discomfort. But on the other hand we won’t have a court ruling that will clarify the situation”.


“There are some patients we cannot help, there are none we cannot harm”

Arthur L. Bloomfield, Professor of Medicine, Stanford University, 1888-1962


Law and ethics

Law and Ethics cannot harm”

Case Studies


Manitoba director of child and family services v a c 2007 mbca 9
Manitoba (Director of Child and Family Services) cannot harm” v. A.C.2007 MBCA 9

  • A.C. 16 year old girl, baptized member of the Fellowship of Jehovah’s Witnesses

  • Firmly believes that she must abstain from blood

  • Completed an Advanced Medical Directive pursuant to Manitoba legislation in January 2006 containing written instructions that she was not to be given blood under any circumstances

  • History of Crohn’s disease – chronic inflammation of the GI tract


  • Admitted to hospital on April 12, 2006 with a GI bleed cannot harm”

  • The bleed led to a drop in Hemoglobin, but her condition stabilized

  • Second bleed early Sunday, April 16

  • AC’s physician thought there was an imminent, serious risk to AC’s life or significant harm

  • Both AC and her parents declined the blood transfusion


  • Hospital contacted the Director of Child and Family Services, and AC was apprehended as a child being in need of protection

  • Counsel for the Director applied for the matter to be heard with short notice (24 hours) for an Order authorizing qualified medical personnel to give blood transfusions as deemed necessary without consent


Evidence of physician
Evidence of physician Services, and AC was apprehended as a child being in need of protection

... [T]he longer she goes without, the more the risk is of her having serious oxygen deprivation to the point where [if] for argument sake she's not getting enough oxygen to her kidneys, they will shut down and cause essential poisoning of her system. If she does not get enough oxygen to her brain she can conceivably have seizures and other manifestations of the brain that will contribute to a faster demise or death.

AC’s attending physician to the Court


Child and family services act ccsm c c80
Child and Family Services Act CCSM c. C80 Services, and AC was apprehended as a child being in need of protection

Declaration of Principles

The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are:

1. The safety, security and well-being of children and their best interests are fundamental responsibilities of society.  


Child and family services act ccsm c c801
Child and Family Services Act CCSM c. C80 Services, and AC was apprehended as a child being in need of protection

25(1) Where a child has been apprehended, an agency

c) may authorize the provision of medical or dental treatment for the child if

  • The treatment is recommended by a duly qualified medical practitioner or dentist,

  • The consent of a parent or guardian of the child would otherwise be required, and

  • No parent or guardian of the child is available to consent to the treatment


Child and family services act ccsm c c802
Child and Family Services Act CCSM c. C80 Services, and AC was apprehended as a child being in need of protection

Child's consent required if 16 or over

25(2) Notwithstanding clause (1)(b) or (c), if the child is 16 years of age or older, an agency shall not authorize a medical examination under clause (1)(b) or medical or dental treatment under clause (1)(c) without the consent of the child.


The health care directives act ccsm c h27
The Health Care Directives Act CCSM c. H27 Services, and AC was apprehended as a child being in need of protection

Age of capacity

4(2) In the absence of evidence to the contrary, it shall be presumed for the purpose of this Act

(a) that a person who is 16 years of age or more has the capacity to make health care decisions; and

(b) that a person who is under 16 years of age does not have the capacity to make health care decisions.


Argument of the family
Argument of the family Services, and AC was apprehended as a child being in need of protection

  • At common law a mature minor has the capacity to decide their own medical care

  • The common law has not been replaced by the Child and Family Services Act

  • The “best interests” test should only apply to minors under 16 without capacity whose parents have refused to consent to needed medical treatment


Argument of the director
Argument of the Director Services, and AC was apprehended as a child being in need of protection

  • The legislative regime replaces the common law authority in a serious medical situation where the opinion of the doctor is in conflict with that of the child and parents


Decision2
Decision Services, and AC was apprehended as a child being in need of protection

  • The problem is difficult because it sets in opposition fundamental values which we hold dear. The first is the value of autonomy - the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive. The second value is effective medical treatment - that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life.


Decision3
Decision Services, and AC was apprehended as a child being in need of protection

Within a child protection context, the legislature has struck the balance between personal autonomy and sanctity of life differently than with respect to adults. Given the concerns over protecting the life of children in relation to essential medical treatment and the difficulty in determining capacity in these emergency situations, the choice of a best interests test for minors under 16 that takes the child’s wishes into account is not unfair or arbitrary. It represents a fair balance between the interests of the individual and those of the state


Affidavit of a c
Affidavit of A.C. Services, and AC was apprehended as a child being in need of protection

“Having someone else’s blood pumping through my veins, stressing my body, caused me to reflect on how my rights over my body had been taken away by a judge who did not care enough to talk with me”


“That day, my tears flowed non-stop. Nothing can properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”


Rotaru v vgh icu 2008 bcsc 318
Rotaru properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”v. VGH ICU 2008 BCSC 318

  • Admitted to VGH with right leg ischemia due to popliteal artery occlusion

  • Post-op developed perforated sigmoid colon d/t ischemic bowel

  • ICU December 5 to 16, 2007 for sepsis

  • Subsequent GI bleeding, ischemic colitis, TPN dependent, renal failure

  • February 3, 2008 Code blue, brought back to ICU

  • Vascular and Nephrology consulting to ICU


Rotaru v vgh icu
Rotaru properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”v. VGH ICU

Meetings with family week of February 4, 2008:

  • no operative solution for Mrs. Priboi’s global vascular disease

  • Therapy to optimize renal function unsuccessful and detrimental to cardiac/respiratory function

  • TPN, digoxin, albumin and lasix causing further complications

  • Dialysis not an option d/t underlying disease processes


Rotaru v vgh icu1
Rotaru properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”v. VGH ICU

Petition for an Order that:

  • The medical staff of the VGH ICU continue to provide life support to Alecsandrina Priboi – their patient, in order to sustain life;

  • The medical staff of the VGH ICU and any other medical section Alecsandrina Prioboi may be transferred to, provide this patient, effective immediately, with medication the patient has been on before February 3, 2008 ICU transfer, medication vital to her life and well being and such staff change their death inducing actions to maintaining and supporting this patient’s life.


Argument of the petitioner
Argument of the Petitioner properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”

  • She was told by the admitting ICU physician that her mother would continue to be given the medical care she had been receiving all along

  • The next ICU physician discontinued this medical care without her or the family’s consent

  • The ICU physician advised that the only thing that would make him change his mind was a court order


Argument of the defendant doctors
Argument of the Defendant Doctors properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”

  • The court does not have the power to make the Order as requested

  • Even if such an Order could be made, the return of the previous medication and treatment would be counter-productive and/or of no effect and other than in accordance with their ethical obligations

  • Dialysis would not change the patient’s outcome, as her renal failure is a consequence of systemic failure


Decision4
Decision properly describe how I was feeling and still feel today. I could liken it to being raped and violated but even those words do not express my feelings strong enough.”

…this decision does not involve the consideration of whether medical advisors can be prohibited from withdrawing forms of treatment of life-support systems.

…the Petition raises the issue of whether, after certain treatment has ceased, the Court is in a position to order that the treatment resume where the medical advisors state that it is in their bona fide clinical judgment that the former treatment is contra-indicated.


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