The Rasouli case : Life support and challenges to the definition of “treatment”

Posted By Silvia Neagu – Nov. 28, 2012

Silvia Neagu is a second-year law student at McGill. Her main interests are health care policy, the intersection of constitutional rights and health law, human rights and education.

 

Background

On December 10, 2012, the Supreme Court of Canada will hear an appeal from the Ontario Court of Appeal’s decision in Rasouli (Litigation Guardian of) v Sunnybrook Health Sciences Centre [1].Interestingly, Justice Moldaver, who was appointed to the Supreme Court last year, co-wrote the Court of Appeal’s decision. The decision has garnered extensive media attention. It centers on Mr. Hassan Rasouli, who is on life support and has been in a persistent vegetative state since October 2010. Mr. Rasouli’s doctors wanted to withdraw life support, but his wife, as his substitute decision-maker, objected because she believes he has shown signs of consciousness.

 

Legal Issues

The decision focused on whether the withdrawal of life-sustaining treatment could be considered “treatment”.  This is significant because if withdrawal constitutes treatment, then the withdrawal of life-sustaining treatment would require the consent of Mr. Rasouli’s wife in her capacity as substitute decision-maker. The case also raises questions regarding whether ineffective treatment, which is how the doctors regard the provision of life support, should be considered “treatment.”

The case considers how health care professionals should respect a patient’s autonomy when end of life decision-making is delegated to family members. There is little case law and no legislation in Canada dealing with the removal of life-sustaining treatment in instances when the patient has not previously expressed his/her wishes.  Hence, this case represents new legal territory in Canada.

 

Ontario Court of Appeal’s decision

 The Court of Appeal and Superior Court judge decided the case under Ontario’s Health Care Consent Act.  The Court upheld the Superior Court judge’s determination that withdrawing Mr. Rasouli’s life support constituted “treatment” under the Act, although for different reasons, and ordered the issue be referred to the Consent and Capacity Board.

Although the Court of Appeal did not determine whether the definition of treatment should exclude treatment with no medical benefit, it came close to expressing an opinion. The Court stated: “there is much to be said for the [physicians’] argument” and “we have difficulty accepting that the legislature intended to include within the definition of treatment measures that attending physicians consider to be of no medical value and therefore worthless” (para 48). As such, the Court did not say whether in Mr. Rasouli’s case, life support was of no medical value.

The Court concluded that in the physician’s plan, which includes removing life support and placing Mr. Rasouli in palliative care, constitutes a “treatment package” under the Act and therefore, requires treatment. The reasoning can be summarized as follows:

  • The definition of “treatment” under the Act includes palliative care
  • The medical definition of “palliative care” is the “alleviation of symptoms without curing the underlying disease”  (the Act does not define palliative care) [1]
  • In this case, removing life support is necessary for palliative care to begin and thus, they
  • are “integrally linked” and “cannot be separated”
  • They constitute one “treatment package” for the purpose of the Act [2]
  • Therefore, the appellants must obtain Mr. Rasouli’s wife’s consent to begin palliative care

The Court was careful to limit the cases where removal of life support is considered part of the palliative care treatment “package” by differentiating cases where withdrawing treatment will trigger death as in Mr. Rasouli’s case, and where there is a gap between withdrawal of futile treatment and death.

Finally, the Court pointed to the fact that even if the doctors do not believe that Mr. Rasouli’s wife is acting in his best interests, they can apply to the Consent and Capacity Board for a determination.

The full decision is available here: http://www.canlii.org/en/on/onca/doc/2011/2011onca482/2011onca482.html.

 

 

Significance and potential impact of SCC’s judgment

 The decision is a significant for supporting patient autonomy. Although the decision was made under the Ontario statute, the Court’s reasoning here may influence courts’ interpretations under similar provincial statutes.

Law professor Hilary Young writes that the Court of Appeal’s ruling will mean that patients can demand treatments even in cases when it is futile or inappropriate, which will have significant effects on the allocation of health resources. According to Young, the solution would be to push for provincial legislation dealing with the removal of life support in end of life circumstances [2].

The SCC’s judgment has the capacity to clarify the Canadian legal position in this largely undefined area of Canadian law.

In addition, it will be interesting to see whether the Supreme Court analyses the issues using the either the right to life, liberty and security of the person, which are protected under s. 7 of the Charter. Neither the Court of Appeal nor the Superior Court’s analysis included the Charter. Furthermore, the Court’s analysis regarding end of life decision and personal autonomy may also impact the Court’s future analysis regarding physician-assisted suicide, an issue that will likely be heard at the Supreme Court in light of the British Columbia Supreme Court ruling in Carter v Canada (A.G) [3]

 

References

1. Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII) at para 41.

2. Young, Hilary “When family and doctors disagree on when to end life”, The Toronto Star (20 September 2011) online: The Star .

3. Carter v. Canada (Attorney General), 2012 BCCA 336 (CanLII).

What’s So Bad About Bath Salts? A Look at the Regulation of Canada’s Newest Illegal Drug

Posted By Laura Crestohl – Nov. 16, 2012

 

Laura Crestohl is a 2nd-year student at McGill University’s Faculty of Law. She holds a Bachelor of Arts in Communication Studies from Concordia University, as well as a Master of Arts in Media Studies from the New School in New York City. Laura’s research interests focus on the intersection of technology, health and the law, including privacy and liability issues.

 

In the summer of 2012, a moral panic began surrounding the use of “bath salts”, a new synthetic drug popular in Canada, the US and Europe. The drug, so named because its white crystals can resemble Epsom salts, was blamed for causing people to take part in such incredulous acts as cannibalism, self-harm and violence towards others. However, the most surprising fact that the public learned about this new drug was that it was actually perfectly legal, and was being sold online or over the counter in small independent stores such as gas stations and convenience stores. The reputation of these drugs as ‘legal highs’ also gave users a false impression that the drugs were safe to use (Smith and Cardile, e7), when in fact, they can have serious medical effects including tachycardia, hypertension, hyperthermia, seizures, and death (Ross et al, 967).

In efforts to protect citizens from these serious health effects, various legislatures have been struggling to ban these ‘designer drugs’. The seemingly innocuous term ‘bath salts’ can cover a variety of synthetic drugs, made from various combinations of different ingredients. Legislatures are struggling to keep up since once they ban an ingredient, makers of the drugs can adjust the formula to make something not covered by the new laws (Vargas-Cooper). This cat-and-mouse game has been a danger to the public, as users can never be sure of what they are ingesting, and doctors dealing with suspected overdoses are clueless about what chemicals they were dealing with and how to treat their patients. Also, due to the drug’s novelty, it is rarely detected on routine drug screenings (Smith and Cardile, ibid).

As a result, the Canadian government has recently banned one of the most commonly used ingredients in bath salts, methylenedioxypyrovalerone (MDPV), following in the steps of many US states and the UK. MDPV is now recognized in Canada as a schedule I substance under the Controlled Drugs and Substances Act, assigning it the same category as heroin and cocaine. Some worry, however, about how banning a previously legal chemical could affect scientific research and that Canada might have done better by implementing educational efforts and regulating sales of the drug (Soupcoff). Thus, it remains to be seen whether this approach will effectively help protect the safety and health of Canadians, or if the policy will be a detriment by driving the practice underground and unregulated.

REFERENCES

  1. Edward A. Ross, Mary Watson and Bruce Goldberg, “Bath Salts Intoxication” (8 September 2011) 365;10 N Engl J of Med 967.
  2. Carin Smith and Anthony Cardile, “Bath Salts as ‘legal high’” (November 2011) 124;11 The American Journal of Medicinee7.
  3. Marni Soupcoff, “Why Canada Should Not Have Banned ‘Bath Salts’” National Post, 26 September 2012. Online: Full Comment: http://fullcomment.nationalpost.com
  4. Natasha Vargas-Cooper, “Bath Salts: Deep in the Heart of America’s New Drug Nightmare” Spin Magazine, July/August 2012. Online: http://www.spin.com.

Resource Allocation in Health Care: Should Socioeconomic Status Count?

Posted By Adrian Thorogood – Nov. 1, 2012

The Montreal Health Equity Research Consortium (MHERC) held an informal workshop Friday, October 26th discussing whether a patient’s socioeconomic status (SES) should be considered when allocating healthcare resources. Dr. Berit Bringedal, a sociologist and senior researcher at the Research Institute of the Norwegian Medical Association, delivered the talk. She is a former Harkness Fellow in Health Care Policy and Practice at Harvard Medical School, and secretary for the Norwegian governmental committee for priority setting in health care.

A tentative argument for preferring low SES patients is to correct for general inequality in health. Low SES groups exhibit less favourable health outcomes, even with universal health care; physicians could therefore play a redistributive role to correct for such disparities.

This view is widely regarded as inappropriate. Traditionally, physicians are assigned the role of advocating for the best health interest of their patients. There is resistance to grant them a larger role in allocation decisions, which could threaten the standard of care of treatment. Dr. Bringedal also argues that this view undervalues the natural causes of disease, and commits an ecological fallacy. The ecological fallacy is ascribing qualities of a group to a single individual. An individual poor patient may have much better health than an individual rich patient. Justifications that hold between groups do not necessarily hold between individuals. (One member of the audience, however, pointed out that the ecological fallacy could also be levelled against all individual medical treatment decisions that rely on population trial data).

This approach essentially attempts to correct for unequal health outcomes. For this reason, it is susceptible to both utilitarian and levelling down criticisms: first, it is more expensive to use health care alone to try and generate the same outcomes in poorer groups; second, providing more robust services to the poor means providing less robust services to the rich (under resource scarcity).

Alternatively, Dr. Bringedal suggests a focus on input equality. Instead of trying to correct for disparities in health outcomes, the goal should be equal access to healthcare, equal ability to benefit from treatment. This approach recognizes that physicians are susceptible to biases that generate unequal access to the benefits of health care. Patients with lower SES status often have higher health needs. Doctors often need to spend more time helping them understand their conditions and treatment regimens. They should also recognize difference in patients’ abilities to advocate for their own treatment. There is evidence of these inequalities. For example, diagnoses of diffuse psychiatric conditions increase with SES status, suggesting unjustified differential treatment at the input stage.

Dr. Bringedal suggests solutions to improve equal access to benefit. Physician ethics could be reworked to articulate an explicit commitment to give equal regard to all patients. More research should explore factors causing unequal opportunity to benefit, which in turn unjustifiably exacerbate SES correlated health disparities. Whether we like it or not, on some level, physicians are making important resource allocation decisions. These decisions must be made consciously, transparently, and with an eye towards just distribution of access to the benefit of treatment.

“Impact of Cuts to the Interim Federal Health Program on Refugees” – an Oppenheimer Chair Seminar

Posted By William Stephenson – Nov. 8, 2012

On October 31, Dr. Janet Cleveland of CSSS de la Montagne presented an Oppenheimer Chair in Public International Law Seminar on the Impact of Cuts to the Interim Federal Health Program on Refugees.

While the cuts to the Interim Federal Health Program (IFHP) are not as severe as some have portrayed them, certain classes of refugee claimants will be left virtually without care. In addition, changes have made the program “excruciatingly technical,” and this “has a huge impact on access to healthcare.” According to Cleveland, doctors routinely demand upfront payment or refuse to see refugee claimants, because the new rules are so complex.

In one case an obstetrician demanded $3,000 to continue to care for a refugee claimant who was 36 weeks pregnant. Since she could not afford to pay this amount, she went to a community clinic and eventually received care from a midwife.

In another case, emergency room staff demanded that a 32-week-pregnant woman who had abdominal pains sign an undertaking to pay before they would screen her. Instead she left.

Before June 30, 2012, all resettled refugees and refugee claimants received the same coverage – what is now called Expanded Health-Care Coverage. Now three types of coverage exist: Expanded Health-Care Coverage, Health-Care Coverage, and Public Health or Public Safety Health-Care Coverage.

Expanded Health-Care Coverage includes all medical, diagnostic and hospital services. It also covers psychotherapy, vision and dental benefits, and medications and medical devices. It is granted to government assisted refugees (GARs) until they receive provincial coverage and to victims of human trafficking who have a temporary resident permit.

Health-Care Coverage includes medical, diagnostic and hospital services except elective surgery, rehabilitation, and long term care. It does not cover medication, unless it is for diseases that are a risk to the public or conditions that are a risk to public safety, such as psychotic aggression. This coverage is granted to refugee claimants and privately sponsored refugees (PSRs).

Public Health or Public Safety Health-Care Coverage does not cover medical services or medications unless they are to treat a condition that is a risk to public health or safety. At present, this limited coverage is only granted to refused refugee claimants from the final rejection of their claim until they are removed or deported.

However, the government will soon be grouping refugee claimants into two groups: those from Designated Countries of Origin (DCOs) and those not from DCOs. DCOs are counties that the Ministry of Citizenship and Immigration deems safe or stable and are therefore unlikely to produce refugees. Under the new DCO policy, refugee claimants from non-DCOs would continue to receive Health-Care Coverage, but refugee claimants from DCOs would only receive Public Health or Public Safety Health-Care.

DCO refugee claimants would thus receive only an extremely basic coverage – and this only because they are deemed a threat to Canadians’ health or safety. “This is very much an ‘us versus them mentality,’” said Cleveland. “If they’re dangerous to us, the government pays for it, but if they’re a danger to themselves – for example, they’re suicidal – it doesn’t because it only affects them.”

The provinces could begin covering individuals whose IFHP coverage is lacking, since early treatment could cost less than treating a condition that could have been prevented or mitigated. However, Cleveland noted that this would be difficult to sell politically, as provincial budgets are already tight and the political fallout could be devastating. In addition, the IFHP only costs about $660 per person annually, according to Cleveland – much lower than the per person cost of provincial health coverage.

Nevertheless, Québec has quietly established a system to fill in the gaps of IFHP coverage. It provides more complete coverage to refugee claimants, although the DCO policy’s impact on that coverage is still unknown. It also seems to cover refused claimants until the date set for their removal or the expiry of their IFHP certificate, but again the policy is not clear.

Québec has also begun to pay doctors for treating refugee claimants if their invoice is rejected by the IFHP insurer. Yet this makes for a long and uncertain process, and, according to Cleveland, still causes doctors to turn refugee claimants away.

McGill Research Group on Health and Law: Sex Work, Rights and the Criminal Law

Posted By Laura Crestohl – Nov. 4, 2012

On October 31st, the McGill Research Group on Health and Law hosted an interdisciplinary panel entitled: Sex Work, Rights, and the Criminal Law: Reflections on Bedford v Canada. The panel featured McGill Law professor Daniel Weinstock, attorney for applicant Terri Jean Bedford and Osgood Hall Law professor Alan Young, and Consultant for Stella (a community group offering resources for sex workers) and recent McGill Law graduate, Tara Santini.

The panel centered on the Bedford case, a constitutional challenge being raised by three sex workers surrounding three criminal code provisions, namely:

  • section 210 which outlaws the keeping of a “bawdy house”,
  • section 212(1)(j) which bans people from living off the avails of prostitution and;
  • section 213(1)(c) which prohibits communicating in public for the purpose of sex work.

The applicants submitted that these provisions infringe on their constitutionally protected right to life and security of the person by making it illegal for them to take certain precautions which would make their work safer. Thus, the prohibitions put their lives and security in jeopardy. The Ontario Superior Court of Justice struck down all three provisions, while the Ontario Court of Appeal struck down the bawdy-house provision, while clarifying that it is only prohibited to live off the avails of prostitution in circumstances of exploitation. The Court allowed the appeal on the communication prohibition, upholding that specific provision. On Thursday, October 25, 2012, the Supreme Court of Canada granted leave to both the appeal of the Crown and the respondents’ cross-appeal.

Each member of the panel looked at the case through a different lens. First, Professor Weinstock outlined public policy concerns and the ‘reduction-harm’ approach. He argued that if there is a behaviour that we will never agree on as a society, the best approach is to reduce its harm and control it through regulation. Professor Young spoke about the history of the criminal code provision at issue and how they were not intended to outlaw prostitution per se, but instead to help regulate the ‘streets’. He explained that now the detriment caused by these laws is grossly disproportionate to the ‘bad’ that they supposedly prohibit. Santini spoke about the difficulties that arise in representing sex workers, because they are often ‘invisibilized’ in society and are thus often rendered unable to speak for themselves.

The panel provided a useful overview for students, researchers and faculty of how this case might affect Canadian sex workers and how we can best approach protecting the health and safety of vulnerable members of our society.