Rasouli case: Who has the right to decide to withdraw life-sustaining medical treatment?

Editor’s note. This appears on the blog of Alex Schadenberg, executive director of the Euthanasia Prevention Coalition.

Yesterday I was in a court room in Toronto to witness the arguments being made in the Rasouli case. The Euthanasia Prevention Coalition (EPC) was granted intervener status in the case and we were represented by Hugh Scher and Mark Handelman.

Mr Underwood, the lawyer for the doctors, argued that according to common law, doctors are not required to obtain consent before withdrawing medical treatment that the doctor believes to be futile. He suggested that this position must be upheld or the medical system will face many unforeseen circumstances.

Mr. Hodder, the lawyer for Hassan Rasouli, questioned the PVS diagnosis and emphasized the high rate of misdiagnosis in the case of PVS. Hodder took the position that withdrawing a ventilator falls within the definition of medical treatment in Ontario. He quoted the very wide definition by the Ontario government and he stated that withdrawing a ventilator would fall within the definition of a medical act and therefore requires consent.

The assistant lawyer for the Rasouli family emphasized that the Common law has been misinterpreted. He explained the history of the Bland case and then showed how, even in the UK, where the Bland decision was made, that a process exists for making similar decisions as the Rasouli decision. [ The “Bland decision” refers to Tony Bland, who was diagnosed to be in a persistent vegetative state. Mr. Bland was the first patient in English legal history who died when his food and fluids were removed.]. Therefore, even in the UK doctors do not have the unilateral right to decide.

Mr. Sher argued on behalf of EPC that Justice Himel was correct when she stated that doctors did not have the unilateral right to withdraw life-sustaining treatment and where a disagreement exists, that these decisions are rightly decided by the Consent and Capacity board. Sher also argued that medical treatment is defined as part of a treatment plan. That withdrawing life-sustaining medical treatment, when it is a change in a treatment plan, requires consent. 

For more information, Robert Cribb wrote a pretty good article titled – “Should doctors be permitted to unilaterally pull the plug,” that was published in the Toronto Star today.  I have reprinted a few of the comments from Robert Cribb:

Hassan Rasouli’s wife and two children see something in him that doctors do not. Lying unconscious at Sunnybrook Health Sciences Centre with tough odds of recovery, he can nevertheless communicate silently with them, hear and understand their voices and somehow make them understand his wish for a chance at life, they insist.

“He talks to us with his eyes,” says Rasouli’s 27-year-old daughter, Mojgan. “We want my father alive.”  His doctors at Sunnybrook say they’ve done all they can do for Rasouli, that he is in a permanent vegetative state and that their medical judgment compels them to remove the ventilation keeping him alive.

The intractable life-or-death dispute over the 59-year-old Iranian mechanical engineer spilled into the Ontario Court of Appeal Wednesday where a three-member panel of judges will eventually render what experts are calling a landmark decision with far-reaching implications for the province’s most sick.

The medically and ethically fraught questions before them: Does the law require doctors to obtain consent before withdrawing life-support from an unconscious patient? Or should they, based on their own considered medical judgment, be permitted to act unilaterally in pulling the plug on patients whose families vehemently reject the idea?

This is the latest in a series of high-profile disputes in Ontario over end-of-life care reported by the Star in recent months and the third case involving doctors at Sunnybrook.  “We’re still without an authoritative answer to a very pressing question,” Harry Underwood, the lawyer representing Rasouli’s doctors, told the court. “How are patients’ best interests to be protected?”

In Canada, that matter sits in a legal and ethical gray area.  Courts have been unsettled on the issue. And debate rages even within the profession on end-of-life protocols.  A lower court decision on the Rasouli case in April (Himel decision) ruled life support may not be withdrawn without consent of the patient or their substitute decision-maker, and that doctors cannot unilaterally stop treatment without first filing an application to the Consent and Capacity Board, a provincial body that mediates disputes over end-of-life cases.

Rasouli’s two Sunnybrook doctors — Brian Cuthbertson and Gordon Rubenfeld — insist that order is too restrictive and that physicians should have the ability to withdraw life support without seeking permission from the Consent and Capacity Board.  “Doctors are obliged to offer treatment that can benefit the patient, and they are obliged not to offer treatment that is futile,” reads their factum in court.  Life and death decisions are not the sole realm of medical judgment, said lawyers representing Rasouli and his family.

“Deciding whether someone should or should not have rights is not the purview of a doctor,” Gardner Hodder said.  Rasouli suffered bacterial meningitis after a surgery to remove a benign brain tumour at Sunnybrook last October. The infection spread throughout his brain, causing “severe and diffuse damage,” say court records.  He has been unconscious since then.

“It is as certain as anything ever is in medicine that he will never recover any degree of consciousness,” say the doctors’ submissions to the court.  He remains alive with the assistance of a ventilator and tube feeding.

Parichehr Salasel, Rasouli’s wife and substitute decision-maker, refused his doctor’s wishes to remove ventilation and move him to palliative care.  A doctor in Iran prior to the family’s arrival in Canada a year ago, she believes he is improving and that removal from the ventilator would breach his Muslim beliefs.

“Life is a gift from God,” she said Wednesday, looking upward to the sky. “He would want to live.”

Her son, 23-year-old Mehran, said he’s seen improvement in his father over the past few weeks sitting at his bedside.  “When I speak to him, he opens his eyes. He knows me.”

Their lawyer, Hodder, told the court that even if Rasouli has been correctly diagnosed as being in a vegetative state — “a perilous area for misdiagnosis” — his wife is “willing to see this play out and to keep him alive a bit longer to see if he fits in the small percentage that recovers.”

At the core of end-of-life disputes lies the question of what constitutes a patient’s “best interests.” The Sunnybrook doctors argue that a doctor’s sole consideration in determining the best interests of a patient is medical benefit.  “If medicine can achieve nothing for the patient, it is not in the patient’s best interests,” Underwood told the panel.

It’s a controversial argument.  Some medical ethicists and doctors believe a patient’s beliefs and values must be incorporated into decisions about a patient’s best interests.  The argument was raised by the judges as well.

“It may be in the patients’ best interests to carry on because the patient believes it is what he has to do to get his eternal reward,” said Justice David Doherty.  Justice Michael Moldaver posed this question to Underwood: “Are we that impoverished a society that we’ll say, ‘We’ll just let him go?’ Why wouldn’t we look at it the other way and say, ‘Let this person keep going?’ ”

If Sunnybrook’s physicians are successful in the appeal, it would set a precedent empowering all doctors in Ontario to make unilateral decisions about end-of-life treatment, said Mark Handelman, a Toronto lawyer and former adjudicator with the board.  “There should be a review of these decisions,” said Handelman who represented the Euthanasia Prevention Coalition, an intervenor in the case.

“At stake is the autonomy of individuals at the end of life to contribute to the definition of their own best interests.”  Consent and Capacity Board hearings ensure a speedy (usually within a week) and lost-cost dispute resolution that would disappear if families were suddenly forced to take their grievances to court in order to keep loved ones alive, he said.  The court process is both expensive and time consuming, often outlasting the patient lives under consideration.  “Justice delayed is often justice dearly departed,” said Handelman.

Ontario is the only province with a Consent and Capacity Board. In other provinces, families are forced to go to court to challenge the wishes of doctors who remove life-sustaining treatment. The panel reserved judgment following arguments Wednesday.

The fact is that if the position of the doctors is upheld, doctors will not be required to obtain consent before they withdraw life-sustaining treatment that the doctor deems to be futile.  The definition of life-sustaining treatment includes the ventilator, hydration and nutrition (fluids and food), antibiotics, etc, etc.

The one suggestion by Mr. Hodder, the lawyer for the Rasouli family, that since the court has jurisdiction in these cases that, if the doctors win the case, that families will need to be prepared to suffer the expense of going to the court to protect a family member, when a dispute occurs.

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