July 29, 2011

End of Life: Just the beginning

Health Law

By Matthew Voell, our rather brilliant and fashionable summer graduate law student.

The Ontario Court of Appeal recently weighed in on the law surrounding the withdrawal of mechanical life support, an issue that promises to remain front and center in the minds of the Canadian public as the baby boomer generation ages: Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

Hassan Rasouli, a 59-year-old former doctor, was placed on a life-sustaining mechanical ventilator and tube feed after incurring brain damage following surgery to remove a brain tumour. A number of doctors, including Mr. Rasouli’s physicians (the “respondent physicians”), concluded that as a result of these post-operative complications Rasouli was in a persistent vegetative state (PVS), and that as there was no realistic hope of recovery, proposed to Mr. Rasouli’s wife, in her capacity as his substitute decision-maker (“SDM”), that it was in his best interests that he be taken off life support and be provided palliative care. Taking issue with these medical conclusions, Mr. Rasouli’s wife, Ms. Salasel, applied to the Ontario Superior Court for an order restraining the doctors from withdrawing the mechanical life-support without her consent, as well as an order requiring the doctors to refer their treatment proposal to the Consent and Capacity Board (the “Board”) should they persist in their assertions.

The trial judge, Himel J., found in favour of Ms. Salasel and ordered that the respondent physicians refer their treatment proposal to the Board and that, pending the Board’s decision, ordered that they not be permitted to unilaterally transfer Mr. Rasouli to palliative care. In appealing the decision to the Ontario Court of Appeal, the respondent physicians argued that the decision of Himel J. set a dangerous precedent, “requir[ing] them to obtain the consent of patients before withholding or withdrawing treatment that they consider to be of no medical value.” While patients have the right to refuse treatment (Malette v. Shulman, (1990), 72 O.R. (2d) 417 (C.A.)) they argued, patients do not have the right to insist upon medically ineffective and inappropriate treatment (Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318). The respondent physicians further argued that doctors have a legal obligation to act in their patients’ best interests, and that should a decision to withhold or withdraw treatment fall below the required standard of care, the doctor would be negligent (¶12).

The primary issue on appeal was whether the withdrawal of life-support amounted to “treatment” under the Health Care Consent Act, 1996, S.O. 1996, c. 2 *the “Act”). The Ontario Court of Appeal, in reasons penned by Moldaver and Simmons JJ.A., held that they had difficulty “accepting that the legislature intended to include within the definition of treatment measures…consider[ed] to be of no medical value and therefore worthless” (¶41). However, because the withdrawal of life-sustaining care is necessarily accompanied by the initiation of palliative care, this “package” of care constituted “treatment” under the Act, and thus the consent of Ms. Salasel was required. Further, the ONCA held that absent her consent, the respondent physicians’ treatment proposal must be referred to the Board (¶65).

This case is of great import for the questions it answers as well as the ones it does not. On one hand, the case stands for the proposition that a physician cannot unilaterally withdraw life-sustaining treatment, but may be able to do so with Board approval. However, in provinces like British Columbia, where the Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c. 181 and Adult Guardianship Act, RSBC 1996, c. 6 do not create a board equivalent to the Consent and Capacity Board, the question remains unanswered as to whether the lack of consent of a SDM is determinative. Further, the reasons of Justices Moldaver and Simmons fail to adequately address the difference at law, if any, between the withdrawal and the withholding of mechanical life support. Further, they avoided wading in to the “metaphysical debate” about whether life-support, in the circumstances, was of any medical benefit to Mr. Rasouli. What is certain is that these questions will have to be answered at some point, if not in the near future, and that for these issues about the end of life, it is just the beginning.

Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482