Rasouli: Withdrawal of medical treatment.

• Author: Bowal, Peter

"... a myriad of important interests, such as the integrity of our health care system, (is) at stake." --Cuthbertson v. Rasouli, [2013] 3 SCR 341 Introduction

In October 2010, Mr. Rasouli underwent surgery at Sunnybrook Health Sciences Centre in Toronto, Ontario to remove a benign brain tumour. Following the procedure, he developed meningitis that caused severe brain damage and left him unconscious. He has been kept alive by mechanical ventilation. It was expected that if his life-support were removed, he would pass away.

Mr. Rasouli's physicians decided that he was in a persistent vegetative state and there was no hope for his recovery. They were of the opinion that continuing life support would not provide any medical benefit to him.

Rasouli's wife disagreed. She wanted her husband to be kept alive on life-support. This was partly driven by her religious beliefs, but she also did not accept that her husband was in a state of irreversible unconsciousness.

The case went to the Supreme Court of Canada.

Law

Disputes between next of kin and physicians over consent and life support used to be resolved through the common law. However, Ontario's 1996 Health Care Consent Act (HCCA) set out the law to settle such disputes. Under the HCCA, a designated substitute decision-maker (SDM), who is often a close family member, has the right to decide whether life support can be removed. The provision aims "... to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services." The legislation seeks to protect patient autonomy and medical interests. In cases of disagreement between the patient's physician and SDM, the physician can appeal the SDM's decision to the Consent and Capacity Board which makes the final care decision for the patient. The Board is typically composed of physicians, ethicists, lawyers and members of the public.

The issue before the Supreme Court was whether the HCCA governed this case. If not, what common law applied to the question of whether life-support should be maintained?

Position of the Physicians

The physicians argued that "treatment" under the HCCA is what they determine to be of medical benefit to the patient. They formed the professional opinion that life-support no longer offered any medical benefit for Rasouli despite the fact that the system kept him alive in his unconscious state. They said maintaining...