Rasouli at the Supreme Court of Canada: no end to the end of life debate.

• Author: Waite, Michael A.

Introduction

Is difficult to conceive of a more legally and ethically challenging circumstance than a dispute between family members and a health care team regarding the withdrawal or withholding of treatment at the end of life. On one hand are families who are emotionally devastated and trying to come to terms with the condition of their loved one. On the other is a health care team struggling to balance the wishes of family members with their ethical and legal obligations to do no harm and to act in the best interests of their patient. While the patient's family in these situations is clearly suffering, health care providers also experience distress when they are pressured to provide treatment they deem to be futile, harmful or otherwise not clinically indicated. This paper will briefly summarize the main aspects of the recent Supreme Court of Canada decision in Cuthbertson v Rasouli (1) ( " Rasouli " ) and will consider the impact of the decision both inside and outside of Ontario.

The Rasouli Decision

In October 2010, Hassan Rasouli was admitted to the Sunnybrook Health Science Centre in Toronto, Ontario for the removal of a benign brain tumor. He subsequently developed an infection causing severe brain damage and was placed on life support. Rasouli's health care team, understanding him to he in a persistent vegetative state with no real chance of recovering, sought to remove artificial life support and implement palliative care. The care team believed that further artificial life support provided no medical benefit and advised Rasouli's wife, Ms. Salasel, that discontinuing life support and providing palliative care was the best option available.

Ms. Salasel, as Mr. Rasouli's substitute decision maker ( "SDM" ), disagreed with this assessment and applied to the Ontario Supreme Court for an order preventing the physicians from withdrawing life sustaining treatment without her consent, citing the provisions of Ontario's Health Care Consent Act ("HCCA" ). (2) Rasouli's health team cross-applied seeking a ruling that consent was not required to withdraw life support when the treatment being provided was futile. The trial judge granted Ms. Salasel's application holding that her consent was required for the withdrawal of care and if she refused, the physicians were required to apply to the Consent and Capacity Board ( " CCB " ). The Ontario Court of Appeal subsequently upheld this decision. (3)

Two questions were at issue at the Supreme Court of Canada. The first was whether withdrawal of an intervention no longer providing a medical benefit was considered "treatment" under s. 10(1) of the HCCA. Key to this issue is the HCCA's definition of "treatment" which reads in part:

Treatment means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan. (4) lithe HCCA was found not to apply, the second question was whether the common law permitted the removal of life support without Ms. Salasel's consent. Given the breadth of the definition of "treatment" under the HCCA, and how close the administration of palliative care was linked to the withdrawal of life support, it was found that for the purposes of the HCCA, the withdrawal of treatment did constitute "treatment" and consent was required. The Court held that in this case, with Ms. Salasel's refusal to consent, the physicians were required to apply to the CCB. As the Court stated, " it will be for the Board to determine whether Ms. Salasel's refusal to provide consent to the withdrawal of life support was in Mr. Rasouli's best interests, within the meaning of s. 21(2) of the HCCA" . (5) According to the Court, while questions involving end of life care may indeed place physicians in difficult ethical situations, this does not alter the burdens placed on them by the HCCA. The majority also stated that the HCCA did not simply codify the common law of consent. The Court explained that in some ways the HCCA broadened the common law of consent and in other ways narrowed it, particularly through the detailed definition of treatment. (6) As the HCCA was found to be applicable, the majority did not address the second issue.

Writing for the majority, McLachlin CJ significantly narrowed the scope of the decision:

This case turns on statutory interpretation--what the FICCA 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 physicians' interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed of little or no value. (7) Justice Karakatsanis, joined by Justice Abella, dissented and would have found that the common law, rather than the HCCA, governs disputes between physicians and SDMs in situations involving the removal of life support. According to Justice Karakatsanis, the HCCA codifies the common law and does not give patients or their SDMs the right to treatment that is "futile, harmful, or contrary to professional medical standards of care." (8)

Impact of the Decision

In Ontario, the Rasouli decision will no doubt cause an increase in applications to the CC13 for the withdrawal of treatment by health providers. Only time will tell if this is ultimately a good thing for patients, families, health providers and the health system as a whole. In provinces without similar legislation, the direct impact of the Rasouli decision is limited. It will, however, be interesting to see how justices hearing injunction applications under the common law interpret the decision and whether the reasoning of the dissent is applied.

The majority in Rasouli broadly interpreted the provisions and purpose of the HCCA and concluded that withdrawal of treatment under the HCCA is included in the definition of treatment. As a result, in the face of an objection from the SDM, health providers in Ontario will be required to obtain CCB approval before withdrawing care even in the most futile of cases. Often the dispute does not end there and an application to the courts is made to review the decision of the CCB. As a result, despite the hopes of those who believe applications to the CCB will shorten the process and are preferable to an injunction application, there are no guarantees that the time to resolution in Ontario will be any shorter than other provinces. In Alberta, where the practice has developed to deal with these applications by originating application, the court process is capable of reacting in an expedited and efficient fashion and may prove to be more expeditious than the Ontario system.

The majority gives minimal attention to the limitations of sections 35 to 37 of the HCC A and relies heavily on these sections as support for a physician's ability to challenge a SDM's refusal of consent to withdrawal of treatment. However, s. 35 only applies to limited circumstances including where the prior expressed wish is not clear or where it is not clear whether the wish is applicable to the circumstances. (9) Consider if Mr. Rasouli had a clear prior expressed wish...