Disputes Over Withdrawal of End of Life Treatment

Disputes Over Withdrawal of End of Life Treatment

The Supreme Court of Canada has just released the decision in Cuthbertson v. Rasouli, clarifying the steps health care practitioners should take when there is a dispute with a substitute decision maker over the withdrawal of life support:

1. The health practitioner determines whether in his view continuance of life support is medically indicated for the patient;

2. If the health practitioner determines that continuance of life support is no longer medically indicated for the patient, he advises the patient’s substitute decision-maker and seeks her consent to withdraw the treatment;

3. The substitute decision-maker gives or refuses consent in accordance with the applicable prior wishes of the incapable person, or in the absence of such wishes on the basis of the best interests of the patient, having regard to the specified factors in s. 21(2) of the HCCA;

4. If the substitute decision-maker consents, the health practitioner withdraws life support;

5. If the substitute decision-maker refuses consent to withdrawal of life support, the health practitioner may challenge the substitute decision-maker’s refusal by applying to the Consent and Capacity Board: s. 37;

6. If the Board finds that the refusal to provide consent to the withdrawal of life support was not in accordance with the requirements of the HCCA, it may substitute its own decision for that of the substitute decision-maker, and permit withdrawal of life support.

See discussion of the decision on Slaw.

 

Supreme Court of Canada on the day the Rasouli decision was released (Photo Credit: Omar Ha-Redeye)

Supreme Court of Canada on the day the Rasouli decision was released (Photo Credit: Omar Ha-Redeye)

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.

SCC will Hear Rasouli Appeal

The Supreme Court of Canada granted a motion earlier today to expedite the application for leave to appeal in Rasouli v. Sunnybrook Health Sciences Centre.  The motion was filed August 10, 2011, after the application for leave was filed August 5.

Mr. Hassan Rasouli is a 59-year-old retired engineer originally from Iran who became comotose after contracting bacterial meningitis after a brain surgery on October 7, 2010.  He was placed on life-sustaining measures, including artifical nutrition and  hydration through a tube in his stomach, and was placed on a mechanical ventilator on October 16, 2010.  His doctors believed he was in a permanent vegetative state and will never regain consciousness.  The case is described by the court as follows:

The respondent is in a coma.  The applicants, who are his physicians, seek to withdraw life‑sustaining treatment and to administer palliative care.  The respondent’s substitute decision‑maker under the Health Care Consent Act, 1996, S.O. 1996, c. 2, refuses to consent to withdrawing life‑sustaining treatment.  The applicants acknowledge that they require consent to administer palliative care but they believe that they do not need consent to withdraw life‑sustaining measures that are no longer medically indicated.  At issue is whether the applicants require consent or a determination from the Consent and Capacity Board that withdrawing life support is in the respondent’s best interests.

 On March 9, 2011, Justice Himel of the Ontario Superior Court of Justice ruled that the physicians must get the consent of the CCB before taking Mr. Rasouli off life support,

[103]      “Treatment” under the HCCA includes the withdrawal of life support. Therefore, doctors require consent when withdrawing life support in Ontario. End of life cases present very difficult considerations for all parties involved. It is clear from the evidence that the hospital, doctors and substitute decision-maker in this case all have as their priority the best interests of the applicant. We are fortunate in Ontario that our legislature has provided a statutory scheme to assist doctors and substitute decision-makers in determining when an incapable person should be removed from life support, complete with recourse to an independent, expert tribunal in the event that a dispute arises in applying the best interests test. This statutory scheme will allow the applicant’s doctors to challenge the substitute decision-maker’s decision refusing consent to the proposed plan at the CCB. While no end of life decision can be easy, the process established by the HCCA provides consistency and ensures a full consideration of an incapable person’s best interests in cases such as this.

Justice Himel also ruled that although there is some basis to indicate that the Charter applies to health services, as in Chaouilli, the Charter did not apply to the doctors’ decision to remove treatment in the same way that it might to hospitals. 

The physicians brought an appeal of the decision, questioning whether a patient has a right to insist on treatment that their doctors, when acting in the patient’s best interests, consider medically ineffective or inappropriate.  On June 29, 2011, the Ontario Court of Appeal dismissed the appeal stating,

[65]      The proposal of the appellants to withdraw the respondent from life support and place him on end-of-life palliative care constitutes “treatment” under the Act, for which the consent of Ms. Salasel is required. If her consent is not forthcoming, the appellants’ proposal must be referred to the Board. Save for requiring that any amendments be made to the formal orders below so that they conform to these reasons, we would thus dismiss the appeal… 

Drs. Brian Cuthbertson and Gordon Rubenfeld will be represented by Harry C. G. Underwood, Erica J. Baron and Andrew McCutcheon of McCarthy Tétrault LLP, and Mr. Hasan Rasouli and his Litigation Guardian and Substitute Decision Maker, Parichehr Salasel, will be represented by J. Gardner Hodder and Guillermo Schible of Hodder Barristers.  The Euthaniasia Prevention Coalition has indicated they will not be seeking leave to intervene in the case.

The Notice of Application and the Applicant’s Memordandum of Argument follows below.

Rasouli v. Sunnybrook (APPLICANTS’ MEMORANDUM OF ARGUMENT)

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.