No Removal from Life Support Without Consent or Order: Rasouli at the Supreme Court of Canada

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  Julie Zamprogna Balles
  Lawyer

By now, you may have heard that the Supreme Court of Canada has just handed down its decision in the case of Cuthbertson and Rubenfeld v. Rasouli. This case is of particular interest as it was the “sister case” to the Baby Joseph case in which many of us were involved a couple of years ago. These two cases were being heard by the Ontario Superior Court at about the same time.

While we advised application to the Consent and Capacity Board to resolve the disagreement between treatment providers and Baby Joseph’s substitute decision-makers around the withdrawal of life support, the physicians at Sunnybrook Hospital opted to test the law on the issue of consent to the withdrawal of life support in Mr. Rasouli’s case.

In the result, the Supreme Court of Canada endorsed our approach. This is a brief overview of the Rasouli case.

Background:

Mr. Rasouli had been on life support since October 2010. The physicians responsible for his care believed that he was in a persistent vegetative state, that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope for his recovery. In their opinion, continuing life support would not provide any medical benefit to Mr. Rasouli and may cause him harm. They sought to remove his life support and provide palliative care until his expected death. Mr. Rasouli’s substitute decision-maker (“SDM”) refused to give her consent to the withdrawal.

The SDM applied to the Ontario Superior Court for an order restraining the physicians for withdrawing life support without her consent, and directing that any challenge to her refusal to consent be made to the Ontario Consent and Capacity Board (“CCB”). The physicians cross-applied for a declaration that consent is not required to withdraw life support where such treatment is futile and, as a result, the CCB has no jurisdiction to decide these issues.

The Superior Court granted the SDM’s application. The physicians appealed to the Ontario Court of Appeal which upheld the Superior Court decision, finding that the withdrawal of life support and administration of end-of-life palliative care were integrally linked and should be viewed as a “treatment package” requiring consent under the Health Care Consent Act (“HCCA”). The physicians again appealed to the Supreme Court of Canada.

Issues at the Supreme Court of Canada:

Before the Supreme Court, the physicians argued that:

(1) life support that is not “medically indicated” is not “treatment” under the definition in the HCCA;

(2) in any event, the withdrawal of treatment does not itself constitute “treatment” and therefore does not require consent; and

(3) requiring consent for withdrawal of life support will place them in an untenable ethical position.

The Supreme Court rejected all three arguments. This is a summary of the decision on each issue raised:

(1) “Treatment” and “health related purpose” are not limited to procedures that are of medical benefit in the view of a patient’s treatment providers. Rather, “treatment” is broadly defined as “anything that is done” for one of the enumerated purposes in the Act (therapeutic, preventive, palliative, diagnostic and cosmetic) or “other health-related purpose”. What a health practitioner considers to be of “medical benefit” is a clinical term, having implications for the physician’s standard of care to determine whether a given treatment ought to be offered. In contrast “health-related purpose” is a legal term under the HCCA used to set limits on when actions taken by a health practitioner will require consent. Life support falls within the meaning of “therapeutic” and “preventive” in that it is to keep a patient alive and forestall death.

(2) “Treatment” under the HCCA is to be broadly defined and understood to extend to the withdrawal of life support. Withdrawal of life support aims at the health-related purpose of preventing suffering and indignity at the end of life and is closely associated with the provision of palliative care. Withdrawal of life support impacts on patient autonomy in the most fundamental way and goes to the heart of the purposes of the HCCA.

(3) While a physician may feel that the legal obligation not to withdraw life support is in tension with their professional or personal ethics, such tensions are inherent to medical practice. No legal principle can avoid every ethical dilemma. A physician cannot be legally faulted for following the direction of the Board. While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA.

This decision is not about whether or not life supports were to be withdrawn in the case of Mr. Rasouli. That issue may be raised before the Ontario Consent and Capacity Board for a determination on facts that were not before the appellate courts.

In its decision, the Supreme Court also outlined what this case is NOT about:

[4] This case turns on statutory interpretation – what the HCCA provides. It is not a case about who, in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment. Nor does the case require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physician’s interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed of little or no value. The Ontario legislature had addressed the conflicting interests and arguments that arise in cases such as this in the HCCA. The court’s task is simply to determine what the statute requires. I note that the parties did not address resource implications or Charter issues in this appeal.

Rather, this case is about the proper process to be followed in end-of-life decision-making when there is disagreement between health practitioners and substitute decision-makers.

From this decision, it is now clear that a health practitioner is obliged to seek the SDM’s consent to withdraw life support. If the health practitioner does not agree with the SDM’s determination of prior capable wishes and/or best interests, then his or her recourse is to apply to the CCB for directions or for a determination as to whether the SDM has complied with the principles for substitute decision-making under the HCCA. The Board’s determination is subject to review by the Court, ensuring that the CCB acts within its mandate and in accordance with the Constitution.

For more information, please contact Julie Zamprogna Balles or any other member of the McKenzie Lake Health Care Team by email or by calling 519-672-5666.