Doctors at Sunnybrook Hospital in Toronto took their flight to unilaterally withdraw life support from Hassan Rasouli to three levels of court, including the Supreme Court of Canada. Rasouli’s family was victorious, saying medical staff could not end treatment with ought their content or without the permission of the Consent and Capacity Board.
The Canadian Supreme Court has ruled in Cuthbertson v Rasouli that doctors cannot unilaterally withdraw life support from patients. The 5-2 decision issued Oct. 18 concerned Hassan Rasouli, who was said to be in a persistent vegetative state after suffering brain, brainstem, and spinal injury. This was caused by a meningitis and ventriculitis infection he developed following a minor surgery in October 2010 to remove a benign tumour.
The Euthanasia Prevention Coalition intervened in the case on behalf of the Rasouli family and they were happy with the decision. EPC executive director Alex Schadenberg said in a press release, “there is a real concern about the impact of accuracy of diagnosis and the critical role of patient autonomy in the making of treatment decisions. EPC is pleased that the Supreme Court of Canada maintained that doctors are not the arbiters of life and death.”
Doctors Brian Cuthbertson and Gordon Rubenfeld at Sunnybrook Hospital in Toronto wanted to withdraw life support, believing there was no hope Rasouli would recover. His wife, Parichehr Salasel, who is also a physician, disagreed with the diagnosis of PVS and refused to give consent, along with the rest of the family. The Shia Muslim family also claimed it has religious objections to withdrawing the ventilator. Rasouli’s condition was later upgraded from “vegetative” to “minimally conscious.”
The physicians from Sunnybrook argued that they did not need to seek consent under Ontario’s 1996 Health Care Consent Act because withdrawing life support does not qualify as a medical treatment.
The Rasouli family went to the Superior Court of Justice to get an injunction stopping the doctors from withdrawing the ventilator. The decision by Justice Susan Himel on March 9, 2011 stated that the family did not need an injunction because the doctors were not permitted to withdraw medical treatment without consent. The doctors then appealed the ruling to the Ontario Court of Appeal, where the justices likewise ruled in favour of the family. The decision also upheld the right of doctors to approach the Consent and Capacity Board if their advice conflicts with the opinions of patients and their substitute decision makers.
The Supreme Court of Canada agreed with the decision of the Court of Appeal. “By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way,” stated the Supreme Court majority ruling written by Chief Justice Beverley McLachlin. The decision, which only applies to cases in Ontario, also says that “‘the physicians’ attempt to exclude withdrawal of life support from the definition of ‘treatment’ … cannot succeed.”
Moreover, the ruling states that the Rasouli case does not “require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed to be of little value.”
Don Hutchinson, vice president and legal counsel of the Evangelical Fellowship of Canada, said in a media release: “As the Supreme Court explained in today’s decision, to go outside the dispute resolution process managed by the Board, as was proposed by the Mr. Rasouli’s doctors, could ‘heighten the vulnerability of incapable patients, since the legal burden would be on family or friends to initiate court proceedings to prevent the withdrawal of life support’.”
