Hassan Rasouli
The Court of Appeal ruled that it is necessary for doctors to raise any objections or concerns they may have about consent before the Ontario Consent and Capacity Board, who has the jurisdiction to determine the issue of consent and to address any challenges to that consent made by a doctor.
The Rasouli case concerned Hassan Rasouli, who underwent surgery on Oct. 7, 2010 at Sunnybrook Health Sciences Centre in Toronto for a benign brain tumour. He experienced a bacterial meningitis infection that caused him significant cognitive damage. On Oct. 16, Rasouli was placed on a ventilator and a tube was inserted to provide him hydration and nutrition. His condition remains similar, even though the Rasouli family insist that he can now respond. His doctors determined that Rasouli was in a persistent vegatative state and decided to withdraw the ventilator, but his wife, Parichehr Salasel, who is also a physician, refused to give consent to the withdrawal of the ventilator.
The Rasouli family applied to the Superior Court of Justice to obtain an injunction preventing the doctors at Sunnybrook hospital from unilaterally withdrawing the ventilator.
The case was heard over three days in February and March and the decision by Justice Susan Himel was released on March 9. Justice Himel decided that the Rasouli family did not need an injunction because the doctors were required to obtain consent before withdrawing medical treatment, which in this case was the ventilator.
The doctors appealed the decision of Justice Himel and thus the case went to the Court of Appeal for Ontario.
The decision has profound implications for patients throughout Ontario and Canada in terms of feeling safe and secure in accessing medical services near the end of life, the Euthanasia Prevention Coalition said in a release. The EPC intervened in the appeal.
The three judge panel decided that: “We are of the view that the application judge reached the correct result in this case. In short, we are satisfied that the plan of care proposed by the appellants does amount to ‘treatment’ as defined in the Act.”
A contrary decision would have effectively provided doctors with unilateral authority to withdraw life-support and end the life of a patient without any oversight, due process or procedural safeguards to patients, said Toronto lawyer Hugh Scher, who represented the EPC at the Court of Appeal.
During the hearing, Scher argued that Justice Himel was correct when she stated that doctors did not have the unilateral right to withdraw life-sustaining treatment and where a disagreement exists, that these decisions are rightly decided by the Consent and Capacity board. Scher also argued that medical treatment is defined as part of a treatment plan and that withdrawing life-sustaining medical treatment, when it is a change in a treatment plan, requires consent.
Withdrawing life-sustaining medical treatment or care often results in the death of the person. Society needs to be very careful with decisions to withdraw life support and granting doctors the unilateral right does not protect people who are misdiagnosed or not actually dying. Doing so would not respect the beliefs and values of people who live with a faith tradition, that includes certain ethical traditions.
The Court of Appeal ruling is perhaps the most significant end of life decision ever made by a Canadian court. It suggests that other provinces ought to be looking at implementing a similar regime of a board or tribunal to address such matters where they arise, according to Mark Handelman, who is a former vice-chair of the Consent and Capacity Board, who also served as counsel to EPC on their intervention.
The ruling is a huge victory for individual rights and it assures that the rights of individuals will be respected. It maintains the role of the Consent and Capacity Board. Doctors continue to have the right to seek consent from the Consent and Capacity Board when consent is refused by the person or the attorney for personal care.
If the doctors won in the Court of Appeals, or win if the case goes to the Supreme Court of Canada, it would mean that power-of-attorney documents would become irrelevant in terms of people with religious or moral values suggesting their treatment preferences.
The Toronto Star editorialized in favour of the Rasouli decision, supporting the position of the EPC. It summarized the issue neatly: “The question is: who decides? Who has the right to say whether Rasouli and patients like him be kept alive or allowed to die? Doctors or families?” The editorial stated “This is wise given the pressures on hospitals to allocate scarce resources among many deserving patients. No one wants life-and-death decisions to be shaped by the need to cut corners.”
The hospital is expected to appeal the ruling, but the unanimous decision indicates that the doctors face an uphill battle.
The EPC hopes that the Rasouli decision, and the support it has received, will lead to a change concerning attitudes towards health care and the need to have effective collaboration on issues that will result in the death of a person.
Alex Schadenberg is the executive director of the Euthanasia Prevention Coalition.
