The Toronto Star by Hilary Young 21 September 2011
In 2010, Hassan Rasouli had surgery to remove a brain tumour. Unfortunately, there were complications and his doctors say Rasouli is now in a permanent vegetative state. According to them, he will never regain consciousness or be able to survive without the help of a machine that breathes for him. They think it’s medically inappropriate to keep him on a ventilator and want it turned off. His physician wife, however, disagrees with the diagnosis and still hopes for a miracle. Unable to agree whether to “pull the plug,” the wife and doctors went to court.
Most of us now die in hospital. Decisions to provide or withhold life support are made every day across Canada. Yet surprisingly, until June when the Ontario Court of Appeal ruled in the Rasouli case, the law was unclear as to who decides whether to withdraw life support.
The court held that Rasouli’s life support cannot be withdrawn without the consent of his substitute decision-maker (SDM), his wife. The court’s reasoning tried to avoid the suggestion that doctors must sometimes provide inappropriate treatment, but that is exactly what the Rasouli case dictates. The SDM’s decision wins out over the doctor’s — even if continued treatment provides no realistic chance for improvement — so long as palliative care is required after withdrawing treatment.
Intuitively, the result may seem right in an era when patient autonomy is so highly valued. But the problems the decision creates are significant, and the Ontario government should legislate to undo what the Ontario Court of Appeal has done. And although the decision only affects Ontario, courts in other Canadian provinces may find the Rasouli case persuasive. Other provinces should also consider legislating to provide clarity to their own courts.
The first problem with the Rasouli decision is that it creates a dilemma for doctors. If SDMs insist on life support that doctors consider medically inappropriate, doctors face potential legal liability no matter what they do. If they insist on withholding treatment against the SDM’s wishes, they violate the Health Care Consent Act. But if to do so is medically inappropriate, a doctor continuing such treatment faces potential professional discipline or liability for malpractice, even if the SDM insisted on continued life support.
The second problem is that the Rasouli decision may create an entitlement to receive certain medical treatment. Although many Canadians believe that health care is a right, the fact is that with few exceptions, we have no legal right to demand medical treatment of any kind. The reason is that health-care funding is a limited resource and courts tend to defer to the provinces as to how funds are spent.
By giving patients a right to insist on life support, the Ontario Court of Appeal may have limited Ontario’s ability to allocate scarce resources as it sees fit.
What’s more, this right exists even where life support is medically inappropriate or futile. Provincial governments cannot afford to give everyone all the medical treatment that would improve their health, let alone to provide treatment that can provide no medical benefit.
Of course, what counts as medically beneficial is contentious. There must, therefore, be safeguards. For example, there should be a process to ensure that continued life support is, in fact, medically inappropriate, and to inform and counsel SDMs and family members. We must give families a reasonable amount of time to come to terms with the tragedy they face.
But when all attempts to get the doctor and the SDM to agree have failed, the SDM’s consent should not be required to withdraw medically inappropriate life support. As noted by the court, this would mean that if a patient previously said she wanted life support under all circumstances and for as long as possible, the physicians involved could not withdraw life support regardless of the patient’s prognosis. This is a bad idea: It creates a dilemma for doctors and amounts to an undesirable legal entitlement to health care.
The Ontario Legislature should amend the Health Care Consent Act to clarify that patients have no right to demand life-sustaining treatment — at least where it is medically inappropriate.
Hilary Young teaches law at Queen’s University.