Rasouli v. Sunnybrook Health Sciences Centre et al., (2013) 310 O.A.C. 19 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 310 O.A.C. 19 (SCC);2013 SCC 53

Rasouli v. Health Sciences Centre (2013), 310 O.A.C. 19 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] O.A.C. TBEd. OC.030

Brian Cuthbertson and Gordon Rubenfeld (appellants) v. Hassan Rasouli, by his Litigation Guardian and Substitute Decision-Maker, Parichehr Salasel (respondent) and Consent and Capacity Board, Euthanasia Prevention Coalition, Canadian Critical Care Society, Canadian Association of Critical Care Nurses, Advocacy Centre for the Elderly, ARCH Disability Law Centre, Mental Health Legal Committee, HIV & AIDS Legal Clinic Ontario and Evangelical Fellowship of Canada (interveners)

(34362; 2013 SCC 53; 2013 CSC 53)

Indexed As: Rasouli v. Sunnybrook Health Sciences Centre et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis, JJ.

October 18, 2013.

Summary:

A hospital patient (husband) went into a permanent vegetative state following surgery to remove a benign brain tumour, and was placed on life support. His doctors sought to take him off life support and place him on end-of-life palliative care. The patient's wife, who was his substitute decision-maker under the Health Care Consent Act (HCCA), disagreed and argued that the doctors required her consent. The wife applied for an order restraining the doctors from taking her husband off life support and an order that the doctors refer their treatment proposal to the Consent and Capacity Board. The doctors cross-applied, seeking to be allowed to take the husband off life support without his wife's consent.

The Ontario Superior Court, in a decision reported [2011] O.T.C. Uned. 1500, found in favour of the wife and against the doctors. The doctors appealed.

The Ontario Court of Appeal, in a decision reported 281 O.A.C. 183, dismissed the appeal. The doctors appealed again.

The Supreme Court of Canada, Karakatsanis and Abella, J., dissenting, dismissed the appeal. Withdrawal of life support constituted "treatment" such that the HCCA applied to this situation. Consent was required. Where physicians and a substitute decision-maker disagreed over the withdrawal of life support, the physicians' remedy was to make an application to the Consent and Capacity Board in accordance with the HCCA.

Medicine - Topic 3004

Relation with patient - General - Non-resuscitation, termination of life support and personal directives - [See all Persons of Unsound Mind - Topic 1434 ].

Medicine - Topic 3041

Relation with patient - Consent to treatment - General - [See all Persons of Unsound Mind - Topic 1434 ].

Medicine - Topic 3047

Relation with patient - Consent to treatment - Withholding of consent - [See all Persons of Unsound Mind - Topic 1434 ].

Persons of Unsound Mind - Topic 1402.1

General principles - Treatment defined - The Health Care Consent Act, s. 2(1), defined "treatment" as care given for a "health-related purpose" - The Supreme Court of Canada interpreted these words - See paragraphs 29 to 44.

Persons of Unsound Mind - Topic 1431

Treatment - Consent - Substitute decision maker - General - [See first Persons of Unsound Mind - Topic 1434 ].

Persons of Unsound Mind - Topic 1432

Treatment - Consent - Substitute decision maker - Considerations - Prior capable wishes - [See third and fifth Persons of Unsound Mind - Topic 1434 ].

Persons of Unsound Mind - Topic 1433

Treatment - Consent - Substitute decision maker - Considerations - Best interests - [See third and fifth Persons of Unsound Mind - Topic 1434 ].

Persons of Unsound Mind - Topic 1434

Treatment - Consent - Substitute decision maker - Withholding of treatment (incl. withdrawal of life support) - The Supreme Court of Canada stated that "In enacting the Health Care Consent Act (HCCA), the Ontario legislature both codified and in important ways modified the common law of consent to medical treatment ..." - The court discussed how the statute fit into the common law legal landscape and reviewed the statutory scheme - The court stated that, in summary, the HCCA contemplated disputes between physicians and substitute decision-makers over the care of incapable patients, and provided for their resolution by the Consent and Capacity Board, an independent, quasi-judicial body with specialized jurisdiction over matters of consent to medical treatment - See paragraphs 17 to 28.

Persons of Unsound Mind - Topic 1434

Treatment - Consent - Substitute decision maker - Withholding of treatment (incl. withdrawal of life support) - At issue was whether withdrawal of life support constituted "treatment" within the meaning of the Health Care Consent Act (HCCA), requiring the consent of the patient's substitute decision-maker - Doctors argued that: (1) life support that was not "medically indicated" (i.e., not of benefit) was not "treatment" under the HCCA; (2) in any case, withdrawal of treatment did not itself constitute "treatment" under the HCCA; and (3) requiring consent for withdrawal of life support would place them in an untenable ethical position - The Supreme Court of Canada rejected the doctors' arguments - The court interpreted the HCCA, holding that withdrawal of life support constituted treatment requiring consent of the substitute decision-maker under the HCCA - Where physicians and substitute decision-makers disagreed about withdrawal of life support, the matter was to be decided by the Consent and Capacity Board - See paragraphs 29 to 104.

Persons of Unsound Mind - Topic 1434

Treatment - Consent - Substitute decision maker - Withholding of treatment (incl. withdrawal of life support) - The Supreme Court of Canada discussed how disagreements between doctors and substitute decision-makers were to be resolved under the Health Care Consent Act (HCCA) - The court stated that "Under the HCCA, the substitute decision-maker does not have carte blanche to give or refuse consent. He or she must comply with the requirements of s. 21 of the Act, which contemplates two situations. The first is where the substitute decision-maker knows of a prior expressed wish by the patient which is applicable to the circumstances. The second is where there is no such wish, in which case the substitute decision-maker 'shall act in the incapable person's best interests'." - The court elaborated on the issues of prior wishes and best interests - The court concluded that "When it comes to the life and death matter of withdrawal of life support, there is every reason to think that the legislature intended a patient's applicable prior wishes to be respected. Moreover, as discussed, a prior wish will only be binding if it is applicable to the patient's current circumstances. Vagueness in a prior wish or changes in the patient's condition, prognosis, or treatment options may mean that the prior wish is inapplicable. Where prior wishes are inapplicable, the best interests analysis governs" - See paragraphs 79 to 116.

Persons of Unsound Mind - Topic 1434

Treatment - Consent - Substitute decision maker - Withholding of treatment (incl. withdrawal of life support) - The Supreme Court of Canada set out the six steps to be followed under the Health Care and Consent Act in a case where a substitute decision-maker and the medical health care providers disagreed on whether life support should be discontinued - See paragraph 116.

Persons of Unsound Mind - Topic 1434

Treatment - Consent - Substitute decision maker - Withholding of treatment (incl. withdrawal of life support) - A hospital patient (husband) went into a permanent vegetative state following surgery to remove a benign brain tumour, and was placed on life support - His doctors sought to take him off life support and place him on end-of-life palliative care - The patient's wife, who was his substitute decision-maker under the Health Care Consent Act (HCCA), disagreed and argued that the doctors required her consent - The Supreme Court of Canada concluded that withdrawal of life support constituted treatment within the meaning of the HCCA, such that physicians were obliged to seek the substitute decision-maker's consent - Since the husband had not expressed a previous wish regarding such matters (HCCA, s. 21(1)1), the substitute decision-maker was required to determine whether removal of life support was in her husband's best interests, having regard to the factors set out in s. 21(2) - If the physicians disagreed, their recourse was to apply to the Consent and Capacity Board for a determination as provided by s. 37(1) of the HCCA - It would then be for the Board to determine whether the substitute decision-maker's refusal to consent was in her husband's best interests - If the Board was of the opinion it was not, it could substitute its decision for that of the substitute decision-maker, and clear the way for removal of life support - See paragraphs 117 to 122.

Words and Phrases

Health related purpose - The Supreme Court of Canada discussed the meaning of this phrase as it was used in the definition of "treatment" in s. 2(1) of the Health Care Consent Act, S.O. 1996, c. 2 - See paragraphs 30 to 70.

Words and Phrases

Treatment - The Supreme Court of Canada discussed the meaning of the word "treatment" as defined in s. 2(1) of the Health Care Consent Act, S.O. 1996, c. 2 - See paragraphs 29 to 70.

Cases Noticed:

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [paras. 18, 135].

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [paras. 18, 135].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 18].

Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [para. 20].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 21].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 21].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

S.D., Re, [1983] 3 W.W.R. 618 (B.C.S.C.), refd to. [para. 21].

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 173 O.A.C. 210; 2003 SCC 32, refd to. [para. 23].

Golubchuk et al. v. Salvation Army Grace General Hospital et al. (2008), 227 Man.R.(2d) 274; 2008 MBQB 49, refd to. [para. 53].

Sweiss v. Alberta Health Services et al. (2009), 483 A.R. 340; 2009 ABQB 691, refd to. [para. 53].

Children's Aid Society of Ottawa-Carleton v. M.C., [2008] O.T.C. Uned. J84; 301 D.L.R.(4th) 194 (Sup. Ct.), refd to. [para. 53].

E.J.G., Re, 2007 CanLII 44704 (Ont. C.C.B.) refd to. [para. 62].

G., Re, 2009 CanLII 25289 (Ont. C.C.B.), refd to. [para. 62].

A.K., Re, 2011 CanLII 82907 (Ont. C.C.B.), refd to. [para. 64].

Scardoni et al. v. Hawryluck et al., [2004] O.T.C. 128; 69 O.R.(3d) 700 (Sup. Ct.), refd to. [para. 69].

R. (Burke) v. General Medical Council, [2005] E.W.C.A. Civ. 1003; [2005] 3 W.L.R. 1132, refd to. [para. 73].

Conway v. Jacques et al. (2002), 159 O.A.C. 236; 59 O.R.(3d) 737 (C.A.), refd to. [para. 81].

K.M.S., Re, 2007 CanLII 29956 (Ont. C.C.B.), refd to. [para. 83].

D.D., Re, 2013 CanLII 18799 (Ont. C.C.B.), refd to. [para. 83].

D.P., Re, 2010 CarswellOnt. 7848 (C.C.B.), refd to. [para. 83].

E.B., Re, 2006 CanLII 46624 (Ont. C.C.B.), refd to. [para. 83].

E., Re, 2009 CanLII 28625 (Ont. C.C.B.), refd to. [para. 83].

H.J., Re, 2003 CanLII 49837, refd to. [para. 83].

A.M. et al. v. Benes (1999), 126 O.A.C. 216; 46 O.R.(3d) 271 (C.A.), refd to. [para. 98].

D.W., Re, 2011 CanLII 18217 (Ont. C.C.B.), refd to. [para. 102].

S.S., Re, 2011 CanLII 5000 (Ont. C.C.B.), refd to. [para. 102].

N., Re, 2009 CarswellOnt. 4748 (C.C.B.), refd to. [para. 102].

Crits v. Sylvester (1956), 1 D.L.R.(2d) 502 (Ont. C.A.), refd to. [para. 110].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 111].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 111].

Airedale National Health Service Trust v. Bland, [1993] A.C. 789; 149 N.R. 321 (H.L.), refd to. [para. 174].

I.H.V., Re (2008), 449 A.R. 211; 2008 ABQB 250, refd to. [para. 176].

Sawatzky v. Riverview Health Centre Inc. (1998), 132 Man.R.(2d) 222 (Q.B.), refd to. [para. 177].

Jin v. Calgary Health Region et al. (2007), 428 A.R. 161; 2007 ABQB 593, refd to. [para. 179].

Child and Family Services of Central Manitoba v. R.L. and S.L.H. (1997), 123 Man.R.(2d) 135; 159 W.A.C. 135 (C.A.), refd to. [para. 180].

Rotaru v. Vancouver General Hospital Intensive Care Unit et al., [2008] B.C.T.C. Uned. B11; 2008 BCSC 318, refd to. [para. 180].

J., Re, [1992] 4 All E.R. 614 (C.A.), refd to. [para. 182].

R., Re, [1991] 4 All E.R. 177 (C.A.), refd to. [para. 182].

Baby K., Re (1994), 16 F.3d 590 (4th Cir.), refd to. [para. 184].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 191].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 197].

Statutes Noticed:

Health Care Consent Act, S.O. 1996, c. 2, Schedule A, sect. 2(1) [para. 30]; sect. 10(1) [para. 29]; sect. 21 [para. 79].

Authors and Works Noticed:

Canada, Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper No. 28 (1982), p. 59 [para. 197].

Canada, Special Senate Committee of Life and Death, Report on Euthanasia and Assisted Suicide (1995), p. 45 [para. 200].

Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada, Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care (1999), http://www.cma.ca, generally [para. 198, footnote 3].

Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada, Joint Statement on Resuscitative Interventions (1995 Update), http://www.cma.ca, generally [para. 198, footnote 3].

Côté, Pierre-André, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 584, 585 [para. 69].

Hoffman, Brian F., The Law of Consent to Treatment in Ontario (2nd Ed. 1997), pp. 7, 10, 163 [para. 52].

Manitoba, College of Physicians and Surgeons, Statement No. 1602: Withholding and Withdrawing Life-Sustaining Treatment (2007), http://cpsm.mb.ca, generally [para. 198, footnote 3].

Manitoba Law Reform Commission, Withholding or Withdrawing Life Sustaining Medical Treatment, Report #109 (2003), http://www.manitobalawreform.ca, generally [para. 198, footnote 3].

Ontario, College of Physicians and Surgeons, Policy Statement #1-06: Decision-making for the End of Life (2006), http://www.cpso.on.ca, pp. 4, 5 [para. 198].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 225 [para. 110]; 345, 346 [para. 200].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 1 [para. 32]; 621 [para. 69].

Young, Hilary, Why Withdrawing Life-Sustaining Treatment Should Not Require "Rasouli Consent" (2012), 62 M.J.L.H. 54, p. 66 [para. 134].

Counsel:

Harry Underwood, Andrew McCutcheon and Erica J. Baron, for the appellants;

J. Gardner Hodder, Guillermo Schible and Stefan A. De Smit, for the respondent;

No one appeared for the intervener, the Consent and Capacity Board;

Hugh R. Scher, for the intervener, the Euthanasia Prevention Coalition;

Andrew S. Faith and Alexi N. Wood, for the intervener, the Canadian Critical Care Society;

Rahool P. Agarwal, Nahla Khouri and Nicholas Saint-Martin, for the intervener, the Canadian Association of Critical Care Nurses;

Dianne Wintermute, Graham Webb and C. Tess Sheldon, for the interveners, the Advocacy Centre for the Elderly and the ARCH Disability Law Centre;

Marshall Swadron, Ryan Peck and Amy Wah, for the interveners, the Mental Health Legal Committee and the HIV & AIDS Legal Clinic Ontario;

Albertos Polizogopoulos and Don Hutchinson, for the intervener, the Evangelical Fellowship of Canada.

Solicitors of Record:

McCarthy Tétrault, Toronto, Ontario, for the appellants;

Hodder Barristers, Toronto, Ontario, for the respondent;

Scher Law Professional Corporation, Toronto, Ontario, for the intervener, the Euthanasia Prevention Coalition;

Polley Faith, Toronto, Ontario, for the intervener, the Canadian Critical Care Society;

Norton Rose Fulbright, Toronto, Ontario, for the intervener, the Canadian Association of Critical Care Nurses;

Advocacy Centre for the Elderly, Toronto, Ontario; ARCH Disability Law Centre, Toronto, Ontario, for the interveners, the Advocacy Centre for the Elderly and the ARCH Disability Law Centre;

Swadron Associates, Toronto, Ontario; HIV & AIDS Legal Clinic Ontario, Toronto, Ontario, for the interveners, the Mental Health Legal Committee and the HIV & AIDS Legal Clinic Ontario;

Vincent Dagenais Gibson, Ottawa, Ontario, for the intervener, the Evangelical Fellowship of Canada.

This appeal was heard on December 10, 2012, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis, JJ., of the Supreme Court of Canada. The decision of the court was delivered on October 18, 2013, including the following opinions:

McLachlin, C.J.C. (LeBel, Fish, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 122;

Karakatsanis, J., dissenting (Abella, J., concurring) - see paragraphs 123 to 206.