Hassan Rasouli

In a ruling of vital national significance, the Supreme Court of Canada has held in the Rasouli case that the Ontario Health Care Consent Act (HCCA) prohibits a physician from unilaterally terminating life-support for a patient who is incapable of consenting to medical treatment. While this case dealt specifically with Ontario, physicians in other provinces should beware that the Court has signalled in its judgment that it could eventually impose the legal principles spelled out in Rasouli on the entire country.

The patient in this case, Hassan Rasouli, is unconscious and has been on life-support in the intensive care unit of Toronto’s Sunnybrook Hospital since October, 2010. The physicians responsible for his care at Sunnybrook proposed to remove him from life support on the ground that he had lapsed into a “permanent vegetative state” – an offensive and dehumanizing label that is all-too-often applied to patients who appear to be in an irreversible coma with no detectable sense of awareness.

Rasouli’s wife and substitute decision-maker, Parichehr Salasel, prevented the Sunnybrook physicians from killing her husband by applying to the Ontario Superior Court of Justice for an order restraining them from withdrawing Rasouli from life support without either her consent or the approval of the Ontario Consent and Capacity Board, an independent, quasi-judicial agency created by the HCCA to mediate such disputes.

In response, the Sunnybrook physicians submitted to the Court that although a physician cannot in most cases legally begin treatment for an incapable patient without the consent of the patient’s substitute decision maker, there is nothing in the HCCA or precedents of the common law that obligates a physician to obtain consent from a substitute decision-maker to terminate a treatment which the physician regards as futile.

With its five-to-two ruling in Rasouli, the Supreme Court of Canada rejected this argument. In reasons for the majority, Chief Justice Beverley McLachlin persuasively argues that under the plain terms of the HCCA, a physician cannot legally withdraw life support from an incapable patient without first seeking the consent of the patient’s substitute decision-maker or if that consent is not forthcoming, gaining the approval of the province’s Consent and Capacity Board, which McLachlin commended as a fair and effective agency that has succeeded over the past 17 years in quickly and efficiently settling disputes in a manner that respects the fundamental rights of physicians, patients and substitute decision-makers.

McLachlin observed in her ruling that if the Court were to accept the alternative theory of the Sunnybrook physicians that the HCCA does not apply to the termination of life support, “it is unclear on the proposed approach whether the physician could withdraw life support without judicial oversight if no legal action is taken by the patient’s family or friends.”

Mark Handelman, co-counsel the Euthanasia Prevention Coalition, an intervener in the case, has warned physicians in other provinces to take due note. In his learned opinion, the Chief Justice has implied in her ruling “that physicians should bring the court application, instead of putting the  burden  on  the  incapable  patient’s  family  and  friends,  and  has explained  her reasoning.” He advises: “Ignore her words at your peril.”

Given the Court’s approval of the procedures of the Ontario Consent and Capacity Board, Handelman has also suggested that “it may be that other provinces consider a similar tribunal. Again, the Chief Justice likes it.”

That, too, would seem to be sound advice. If other provinces do not emulate the HCCA, the Supreme Court of Canada is all too likely to impose its key provisions upon them, given the disposition of the Chief Justice and a majority of her colleagues to write whatever they like into the law under the pretence of upholding the Canadian Charter of Rights and Freedoms.

Meanwhile, what are the implications of this ruling for Rasouli? Can he remain indefinitely on life-support so long as his wife, Salasel, refuses to consent to withdrawal of the treatment? Not necessarily.

If the Sunnybrook physicians still think that Rasouli should be allowed to die through the withdrawal of life support, they could appeal Salasel’s refusal of consent to the Consent and Capacity Board. If, after holding an expeditious public hearing with submissions from the physicians, Salasel and counsel for Rasouli, the Board were to decide that it is in the best interests of Rasouli as set out in the Health Care Consent Act to allow him to die, the Board could direct Salasel to consent to the withdrawal of life support and if she were to refuse, substitute its own decision.

Alternatively, the Board might well agree with Salasel. While the Rasouli case was before the Ontario Court of Appeal in 2011, his diagnosis was upgraded to “minimally conscious state,” a condition in which he still remains in the intensive care unit of Sunnybrook Hospital.

In comparison to the Rasouli case, many others are decidedly clear cut. Handelman observes that it is not uncommon for physicians in large intensive-care units to allow a patient like someone with late-stage Alzheimer’s Dementia to linger for months, if not years, on life support in an intensive-care bed although the patient has no awareness of his surroundings and no prospect for recovery. Such treatment is not only contrary to the best interests of the patient, but also wasteful of scarce medicare resources that could be used to save lives. The annual cost of maintaining each bed in an intensive care unit comes close to $1 million.

Handelman concludes: “Sometimes, life support does not continue life but rather prolongs the dying process. Yet, physicians sometimes continue to accede to the demands of family that ‘everything be done.’ In my view, treating a patient contrary to his or her best interests because the family demands it is unethical and contrary to the statute.

“Recourse is to The Consent and Capacity Board in Ontario and the courts in other provinces.”