Caregiver News
End of Life Decisions and the Law – A Prelude to the Supreme Court of Canada’s Hearing of the Rasouli Appeal

As is clear from the Ontario Court of Appeal decision in Rasouli v. Sunnybrook Health Sciences Centre, the decision whether or not to continue life support is always emotional and never best determined by the courts. What the Supreme Court will be required to determine when it hears the appeal in this case, is that rare situation where the wishes of the family and the opinion of medical practitioners are in conflict.

In Rasouli, the issue is whether doctors can withdraw life support from a patient in a vegetative state without the consent of the substitute decision-maker, where the doctors are of the opinion that there is no realistic hope of medical recovery and the patient is not receiving any medical benefit from life support. Consent to do so has been refused by the patient’s spouse. Under s. 21 of the Ontario Health Care Consent Act (the “Act”), a person designated as a substitute decision-maker may exercise a right to consent or refuse treatment on behalf of a patient, provided they have followed the steps set out in that section. Where the medical practitioner proposing the treatment consented to or refused disagrees with the decision of the substitute decision-maker, he or she may apply to the Consent and Capacity Board established by the Act (the “Board”) for a determination whether the substitute decision-maker has complied with s. 21.

Here, the medical practitioners contend that the withdrawal of life support does not constitute “treatment” under the Act where life support provides no medical benefit to the patient. Therefore, it is argued that withdrawal in this instance is not “treatment” and consent of the substitute decision-maker is not required. In this instance, the doctors propose to withdraw life support and to institute palliative care until the patient passes away.

The Court of Appeal disagreed with the medical practitioners’ position and dismissed the appeal. However, it did so on fairly narrow grounds. While sympathetic to the concern of the medical practitioners that there may be no benefit to continued life support, the Court held that the administration of palliative care is treatment under the Act and is inextricably intertwined with and results from the withdrawal of life support. Therefore, the Court could not separate the two and found that withdrawal of life support in this situation is also “treatment”. Consent of the substitute decision-maker to withdrawal is therefore required. If the medical practitioners disagree with the decision of the substitute decision-maker, they must take the matter to the Board.

Right or wrong, the Court of Appeal appears to have been more comfortable leaving the matter in the hands of the expedited process before the Consent and Capacity Board, adding that since its establishment 15 years ago, the Board seems to have worked well. Some medical practitioners may take a different view given the choice to continue to appeal this matter. The Court added that the ability of medical practitioners to go to the Board acts as a form of “safety valve” for doctors. In what appears to be an expression of surprise at the position of the medical practitioners in this case, the Court stated further that it believes doctors would see the Board procedure as a good thing, rather than “an impediment to their professional independence and autonomy”.

The reality of the situation is that, whatever the Supreme Court decides, medical scenarios similar to that of Mr. Rasouli will almost always be decided properly between family, the patient’s doctors and, if necessary, through counselling. Beyond the obvious importance of the case to the Rasouli family, it will be interesting to gauge the impact of the decision in the context of public policy. A web search referencing the decision renders disparate opinions, ranging from those of anti-euthanasia groups to advocates of a right to a dignified death. One thing is certain, while there is law governing these decisions, they are not well suited to the courtroom.

Forbes.

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