The Requirement of Consent to Withdraw Treatment: A Critique of the Rasouli Decision

• Author: Sarah Jones
• Position: Is a 2015 J.D. Candidate at the University of Victoria Faculty of Law
• Pages: 121-146

APPEAL VOLUME 20

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121

CASE COMMENT

THE REQUIREMENT OF CONSENT TO

WITHDRAW TREATMENT: A CRITIQUE

OFTHE RASOULI DECISION

Sarah Jones*

CITED: (2015) 20 Appeal 121

INTRODUCTION.................................................122

I. BACKGROUND................................................123

A. Facts........................................................123

B. Court Decisions...............................................124

C. Main Legal Issues..............................................124

II. STATUTORY INTERPRETATION.................................125

A. Treatment ...................................................125

i. Ordinary Meaning ..........................................125

ii. Scheme of the Act ..........................................128

iii. Purpose of the Act/Intention of Parliament .......................130

B. Plan of Treatment..............................................131

i. Ordinary Meaning ..........................................131

ii. Scheme of the Act ..........................................132

iii. Purpose of the Act/Intention of Parliament .......................133

C. Conclusion on Statutory Interpretation .............................134

III. COMMON LAW................................................134

A. Battery ......................................................135

B. Informed Consent .............................................136

C. Evaluation of Patient Reasoning...................................138

D. Cases on Life Support ..........................................139

E. Incremental Changes ...........................................141

I V. CHARTER .....................................................141

V. POLICY CONSIDERATIONS AND PROPOSALS . . . . . . . . . . . . . . . . . . . . 142

A. Decreased Conservatism.........................................143

B. Objective Consideration of Patient’s Best Interests .....................143

C. Patient’s Wishes ...............................................144

D. Family Consultation & Communication ............................144

CONCLUSION ...................................................146

* Sarah J ones is a 2015 J.D. Candidate at the University of Victoria Facult y of Law. She will be

articling at Eric Harv ie Professional Corporation in Ban , Alberta. This article was or iginally

submitted as a major pape r for Professor Maneesha Deckh a’s Health Law class. The author

would like to thank Professor Deck ha for her suggestions, suppo rt, and encouragement as well

as Appeal editor Britney N ewbigging for her input and assista nce.

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APPEAL VOLUME 20

INTRODUCTION

[T]he guiding pri nciple for medical decision-making is not life in itself a s

an absolute value, but the patient’s overall welfare. In most instances, this

welfare imposes t he maintenance of life, but t his is not always the c ase.

It is not the case when the prolonging of life has become purely articial.

It is not the case when the mai ntenance of life can only b e achieved by

an undue prolongation of the patient’s agony. It is not the case when the

maintenance of life re sults only in the in iction of additional suering.

In other words, it is not the case when the treatment is diverted from its

proper end and merely prolongs the dying process r ather than life itself.1

is quotation, from the Law Reform C ommission of Canada, highlights a d anger

inherent to the rapid advancement of life-su staining medical tech nologies in our society.

Modern hospitals are able to keep some patients a live in a comatose or vegetative state

almost indenitely a nd to use extraordinary measure s to prevent their deaths.2  is

phenomenon has caused the na l stages of life to bec ome an increasingly technical and

articial process.3 A long with our aging popul ation, this type of med ical care has led to

the emergence of pressing lega l and ethica l challenges.4 A lthough it may be possible to

delay a patient’s death through agg ressive medical t reatment, doing so will not alw ays

be the best course of act ion. ere comes a point where life-susta ining measure s are

no longer serving the pur pose of promoting recovery, but are simply extending patient

suering and t ying up hospital resource s.5 However, there has been much contention

over who is entitled to decide when withdrawin g life support is appropriate.

Historically, a doctor’s expertise wa s highly revered and pat ients tended to trust their

health care prac titioners to make even the most vital and personal determinations

unilateral ly. Over the years, however, an increasing dema nd from patients for more

autonomy and self-determination has re sulted in a shift in the Canadi an common law of

medical consent.6 Balancing pat ient autonomy with physicians’ professional and ethic al

duties illuminates potential conicts.7 On one hand, patients can refuse life-saving

treatment and consent to pal liative sedation that may hasten death.8 On t he other hand,

physicians’ duty to “do no harm” prevents t hem from actively bringing a bout death via

assisted suicide or eutha nasia.9 In the recent case of Cuthbertson v Ra souli (“Rasouli”) the

1 The Law Reform Commissi on of Canada, Working Paper 28: Euthanasia, Aiding Suicid e and

Cessation of Treatment (Ottawa: Minister of Suppl y and Services Canada, 1982) at 59. Note that

the Commission goes on to say that a physi cian should still continue provision of lif e support in

such a scenario if the patient re quests it.

2 Airedale NHS Trust v Bland, [1993] AC 789 at 8, 1 All ER 821 [Airedale]; Hilary Young, “Why

Withdrawing Life-Sus taining Treatment Should Not Require “Raso uli Consent”” (2012) 6 McGill

JL& Health 54 at 54.

3 Richard I Hall & Graeme M Ro cker, “End-of-Life Care in the ICU: Treatments Provi ded When Life

Support Was or Was Not Withdraw n” (2000) 118:5 Chest 1424 at 1429.

4 Ibid at 1424; Young, supra note 2 at 56.

5 Sharon Kirkey, “Rasouli case may ma ke doctors reluctant to star t life support in “borderl ine”

cases” (16 December 2012) online: O Canada o.canada.com/news/rasouli-case-may-

make-doctors-reluctant-to-start-life-support-in-borderline-cases>; Young, supra note 2 at 57.

6 Ian McDowell, “Furthe r Concepts in Medical Ethics”, online: Societ y, the Individual, and Medicine

.

7 Graeme Rocker & Scott D unbar, “Withholding or Withdrawa l of Life Support: The Canadia n

Critical Care Societ y Position Paper” (2000) 16 J Palliat Care S53 at S54.

8 Ibid; McDowell, supra note 6; Young, sup ra note 2 at 57.

9 Rodriguez v British Columbia (AG), [1993] 3 SCR 519 (available on CanLII) [Rodriguez cited to SCR].

A new case, Carter v Canad a (AG), has recently been heard by the SCC and may overtur n the

prohibition on assisted sui cide, although the judgement will be r eleased post-publication:

Carter, infra note 158.