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In the Rasouli case, an opportunity to clarify patients’ rights and doctors’ power

The Globe and Mail by Hilary Young 2 May 2012

Hassan Rasouli is at the centre of a debate about withholding a patient’s life-sustaining treatment. The Supreme Court was set to hear Mr. Rasouli’s case. Now, with the revelation that Mr. Rasouli is not in a persistent vegetative state, the case has been thrown into doubt. However, given the importance of the issues at stake and the uncertainty in the law, the Supreme Court should take this opportunity to clarify the law.

Mr. Rasouli’s doctors diagnosed him as being in a persistent vegetative state. They were convinced he would never regain any degree of consciousness: His case was hopeless. As a result, they wanted to withdraw his life support and allow him to die. When Mr. Rasouli’s wife refused permission to withdraw life support, legal action followed and the case was on its way to the Supreme Court of Canada.

Then, this week, it was revealed that Mr. Rasouli can give a “thumbs up.” That he has some awareness and ability to control his movements means that he is not in a persistent vegetative state. This change in diagnosis may make the doctors’ case before the Supreme Court moot. His doctors may no longer wish to remove his life support and they would then have no reason to seek the court’s permission to do so. That said, the doctors are conducting further tests and have indicated that given Mr. Rasouli’s condition, it may still be medically appropriate to withdraw his life support.

The change in Mr. Rasouli’s condition is, of course, great news for his family and friends. My concern, however, is that if Supreme Court does not hear the Rasouli case, uncertainty will persist regarding critically important questions: May patients or their substitute decision-maker (SDM) unilaterally demand life-sustaining treatment no matter how futile or expensive? May doctors unilaterally refuse to provide life-sustaining treatment based on medical factors alone, no matter how much the patient or SDM may want treatment to continue? My view is that neither of these extreme positions should be the law. Rather, the law should balance competing considerations, such as the patient’s wishes and values, what is medically indicated, and considerations of resource allocation.

How best to answer these questions is a complex policy question that legislatures should address. Until they do, however, the Supreme Court could provide valuable guidance to doctors and patients about what the law requires. And although the Ontario Court of Appeal has ruled in the Rasouli case (in Mr. Rasouli’s favour), it has left a number of questions unanswered. For example, it is still unclear whether a patient or SDM could resist a doctor’s decision to place a “do not resuscitate” order on a patient’s chart.

I therefore hope the doctors will pursue their case regardless of whether they still believe Mr. Rasouli’s life support should be withdrawn. They could argue for their right to make that decision regardless of how they intend to exercise that right. Mr. Rasouli has already filed a motion with the Supreme Court seeking to have the appeal quashed as being moot. However, the court has discretion to hear moot cases. Disputes over who may decide whether to withdraw life-sustaining treatment will always involve patients with serious medical conditions and it usually takes several years for cases to make their way to the Supreme Court. Unfortunately, patients will frequently die before their case can be decided by Canada’s top court. If Mr. Rasouli’s motion is successful, it is unlikely that the Supreme Court will have the opportunity to clarify this area of the law for many more years. Therefore, the court should hear the case so it can provide much-needed guidance regarding who may decide whether life-sustaining treatment should be withdrawn.

The fact that Mr. Rasouli’s doctors apparently got his diagnosis wrong should give all of us pause. Doctors make mistakes and that is one argument against doctors’ right to withdraw life-sustaining treatment against an SDM’s wishes. However, the fact that doctors make mistakes does not mean that all requested treatment should be provided at any cost “just in case.” Canada needs legal guidance regarding who may decide whether to withdraw life-sustaining treatment and for what reasons.

Hilary Young teaches law at Queen’s University.