The impact (or lack of impact) of Cuthbertson v. Rasouli on end-of-life medical decision making in Alberta.

• Author: Williams, Kristy

Introduction

End-of-life medical decision-making is complex and is further complicated by the uncertainty of whether physicians require patient consent to withdraw or withhold life-sustaining treatment a physician deems inappropriate. In the recent decision of Cuthbertson v. Rasouli, (1) the Supreme Court of Canada clarified the state of the law in Ontario, holding that pursuant to the Ontario Health Care Consent Act, 1996 (2) ("HCCA"), patient consent is required for the withdrawal of life support regardless of whether the physician providing such treatment believes it is inappropriate or futile. (3) Chief Justice McLachlin, speaking for a majority of the Court in Rasouli, found that the HCCA solely governed the issue of whether patient consent was required for the withdrawal of life-sustaining treatment. (4)

This article aims to elucidate the effect the decision in Rasouli will have in Alberta by comparing the HCA with relevant Alberta legislation, namely the Personal Directives Act (5) ("PDA"). The author concludes that, unlike the HCCA, the PDA is silent on the issue of whether patient consent is required for the withdrawal of life-sustaining treatment that a physician deems to he inappropriate and as a result, in Alberta, one must look to the common law for the answer to this question. The decision in Rasouli will therefore only impact the law in Alberta in so far as it provides guidance as to the common law.

Background

End-of-life medical decision-making has been complicated by advances in life-sustaining treatment technology including mechanical ventilation and artificial nutrition and hydration. Mechanical ventilators were originally developed for use during surgical operations and it was only in the 1960s that intravenous feeding and mechanical ventilators began to be widely used outside of operating and recovery rooms. (6) This expanded use of life support technology permits patients in minimally conscious or persistent vegetative states to be kept alive for extended periods of time. (7)

One of the first legal issues that arose in response to the prolific use of life-sustaining treatment was whether a patient, or a representative of the patient, (8) could refuse to consent to such treatment or have such treatment withdrawn. The ability of a patient to refuse medical treatment has long been recognized as stemming from the tort of battery at common law. (9) However, as the common law did not recognize a right to appoint an agent to make medical decisions and the legal effect of a patient's written instructions in advance of their incompetency is uncertain under the common law, there was no clear mechanism for patients to exercise their right to refuse medical treatment once incompetent. (10)

All Canadian provinces and territories, with the exception of Nunavut, have enacted legislation creating mechanisms for patients to control their own medical treatment in the event of incompetency. (11) Two types of mechanisms exist through which an individual can control their treatment. One option is for an individual to execute written instructions (a "directive") that will govern their future treatment in the event they become unable to make such decisions. Another mechanism through which an individual may retain some control over their treatment is to appoint an agent (12) to make treatment decisions on the individual's behalf.

Legislation that gives legal effect to advance directives and substitute decision-makers permits individuals to stipulate treatment they do not want, in advance of incompetency. Such legislation may, potentially permit individuals to demand that treatment is continued, particularly where the treatment at issue is life sustaining. Multiple cases have come before the courts where patients' agents or family members have requested the continuation of life-sustaining treatment despite the opposition of the treating physician. (13) The only of these cases to reach the Supreme Court of Canada was that of Rasouli. (14)

In Rasouli, the Supreme Court held that consent was required for the withdrawal of life...