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).
McGill Journal of Law and Health 