National Affairs Rory Leishman
The Euthanasia Prevention Coalition has good reason to commend the unanimous ruling by a three-judge panel of the Ontario Court of Appeal in the Rasouli case on June 29, which holds that physicians have no right in Ontario law to withdraw life support from a patient without the consent of the patient or a qualified substitute decision-maker.
Hassan Rasouli is a patient at Sunnybrook Hospital in Toronto, who has been in a coma since last October. Hospital physicians resolved to remove him from life support on the ground that he was in a “persistent vegetative state” – a dehumanizing term used by some physicians to designate the condition of a still living, but comatose person who is deemed to have no chance of regaining consciousness.
Rasouli’s wife refused to consent to the removal of life support, and understandably so. There are several examples in the medical literature of patients who have amazingly recovered from a supposedly irreversible coma.
Given the Rasouli impasse, his physicians could have appealed to the Ontario Consent and Capacity Board for a ruling. Instead, they summarily informed his wife that they intended to proceed on their own to kill her husband by removing him from life support.
Rather than meekly acquiescing to this unilateral decree, Rasouli’s wife, Parichehr Salase, appealed to the courts. And let us all be thankful that she did: in an exemplary interpretation of the plain meaning of the law as enacted by the Ontario legislature in the Consent to Treatment Act, the Court of Appeal has now made clear that physicians have no authority under the laws of Ontario to decide on their own to kill a patient by withdrawing life support.
While it might be supposed that this ruling could result in a substantial increase in the number of dying patients who linger on life support pending appeals to the Consent and Capacity Board, that is unlikely. Counsel for the Sunnybrook physicians told the Court that the burden on hospital resources was not an issue in the case.
The consent board is an independent body that sits in expert panels consisting of a lawyer, a psychiatrist, and a member of the public. Rules of procedure for the board are designed to assure that all parties to an end-of-life dispute can have a reasonably prompt, fair and expeditious hearing that typically leads to a ruling within a few days.
In the current issue of Healthcare Quarterly, researchers Paula Chadwick and Robert Sibbald cite the results of a survey of physicians who have referred cases to the board. According to these physicians, the board is “worthwhile, patient-centred, process-oriented, orderly and efficient for resolving end of life disputes” in the best interests of patients.
Granted, the system is not perfect. End-of-life disputes can drag on when appeals arise from the board to the courts. However, according to Mark Handelman, a lawyer hired by the Euthanasia Prevention Coalition, only about one-third of board rulings so far have been appealed. This suggests that if the board did not exist, the burden of end-of-life conflicts on the medicare and legal systems would be far greater, because many of the cases now resolved by the board in a few days would probably land in the courts where, as in the Rasouli case, it can take weeks or months to come up with a final decision.
Meanwhile, the Rasouli dispute remains unresolved. If the Sunnybrook physicians persist in requesting his removal from life support, while his wife refuses to consent, the case could not only go before the Consent and Capacity Board, but also end up back in the courts.
That would be regrettable. But such prolonged and costly litigation in rare cases is a necessary safeguard for patients and their families. The Ontario legislature has done well to stipulate in the Health Care Consent Act that physicians do not have authority to remove life support from a comatose patient without consent.
Ontario’s Consent and Capacity Board is unique. Other provinces should establish similar bodies. As the Rasouli case demonstrates, recourse to an independent panel of experts that can settle most end-of-life conflicts quickly, fairly and efficiently is in the best interests of physicians, patients and substitute decision-makers.
