Hassan Rasouli

On June 29, the Ontario Court of Appeals unanimously upheld the Rasouli decision by Susan Himel -– doctors have to obtain consent before withdrawing life-sustaining treatment. The three judge Ontario Court of Appeals panel stated: “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.” The Euthanasia Prevention Coalition (EPC) successfully intervened in the Rasouli case and many of the legal comments in our intervention were used in the Appeals Court decision.

It is important to note that in Ontario a Consent and Capacity Board exists to make decisions based on the “best interest” of a person, when a disagreement exists between a doctor or health care institution and a patient or the substitute decision maker. Therefore the Rasouli decision did not create a problem for when a medical decision that is in the best interest of the patient needs to be made and a patient or a substitute decision maker refuses.

The EPC originally thought that if the doctors lost their appeal, that they would once again appeal the decision, but when the Ontario Court of Appeal unanimously upheld the Himel decision, we were hopeful that the doctors would accept the decision.

Now that the doctors have appealed the decision to the Supreme Court of Canada, EPC will once again prepare an intervention based on the reasons that the doctors provided for their appeal.

The Rasouli case concerns 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 insists that he can now respond.

His doctors determined that Rasouli was in a persistent vegetative 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 to prevent 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 Himel was released on March 9. The judge decided that the Rasouli family did not need an injunction because the doctors are 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 Rasouli decision was a huge victory for individual rights, assuring that the rights of individuals would be respected. The Rasouli decision had 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 Rasouli decision maintained 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.

The EPC is concerned that if the Rasouli decision is overturned that vulnerable Canadians will be denied life-sustaining treatment or care, against their wishes or consent. The definition of life-sustaining treatment or care includes fluids and food, ventilators and antibiotics.

No date has been set for the case.

Alex Schadenberg is the executive director of the Euthanasia Prevention Coalition, an intervenor in the Rasouli case. A version of this article originally appeared on his blog, alexschadenberg.blospot.com, August 5.