Editor’s note. This appeared Wednesday on the blog of Alex Schandenber, the executive director of the Euthanasia Prevention Coalition, at http://alexschadenberg.blogspot.com/2011/04/euthanasia-prevention-coalition-is.html. Rasouli v. Sunnybrook Health Sciences Centre is a potentially precedent-setting Canadian case with possible implications for the United States in light of the passage of ObamaCare. In Canada all health care funding goes through the government’s “single payer” system. If ObamaCare is not repealed, beginning in 2013 such decisions in the U.S. will be subject to so-called “quality” standards imposed by the Department of Health and Human Services. DHHS could specify when — and when not — treatment may be provided, based on recommendations from the Independent Payment Advisory Board. Under ObamaCare, this board is charged with preventing private citizens’ health care from keeping up with medical inflation.
The Euthanasia Prevention Coalition (EPC) has been granted intervener status in the Rasouli case which will be heard before the Superior Court on May 18. The Rasouli case is a precedent-setting case of national importance. that will decide whether doctors must obtain consent before withdrawing life-sustaining medical treatment. EPC has retained lawyers Hugh Scher and Mark Handelman to represent us.
There have been many previous cases whereby a doctor has withdrawn life support against the previously expressed wishes of a person or without the consent of the substitute decision-maker. Many of these decisions were made based on futile care theory, cost containment, and “quality of life” evaluations by doctors. Some of these decisions result in a death by “slow euthanasia” (dehydration of a person who is not otherwise dying) and many are based on negative attitudes toward people with disabilities or other vulnerable people.
The Rasouli case will determine whether doctors are required to obtain the consent of the patient, the patient’s guardian, or the Consent and Capacity board before withdrawing life support. This decision will apply to all life-sustaining interventions, including the withdrawal of hydration and nutrition.
The Rasouli case
In October 2010, Hassan Rasouli had surgery at the Sunnybrook Health Sciences Centre (the Hospital) in Toronto to remove a benign tumour in his head. Following the procedure, Mr. Rasouli developed bacterial meningitis and ventriculitis. The infection caused a severe and widespread brain injury as well as damage to the brainstem and the spinal cord. He has been in coma since October 16, 2010 and is on a ventilator and being fed through a tube inserted in his stomach.
Mr. Rasouli was examined on five occasions, before his doctors, Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld, decided that he is in a Persistent Vegetative State (PVS) and that they would withdraw all treatments, including ventilation.
Parichehr Salasel, Mr. Rasouli’s wife, a doctor who was a doctor in Iran and who is his substitute decision-maker, met with the physicians and discussed their proposed treatment plan (non-treatment). She refused to consent to their treatment plan.
In response, the doctors attempted without success to have Mr. Rasouli transferred to another hospital in Toronto.
Ms. Salasel applied to the court for an injunction to prevent the doctors and the hospital from withdrawing life-sustaining treatment from her husband. She believes that Mr. Rasouli is not PVS. She stated that he is moving and he has some awareness of his surroundings. She will not provide consent to withdraw the ventilator from her husband because the action is not consistent with their religious views. As Shia Muslim’s, they believe that life must be respected and upheld until all signs of life are gone.
The doctors state that they are not required to continue providing treatment which they believe lacks benefit. They stated that they are obliged to refrain from continuing such treatment even if the patient or substitute decision-maker does not consent to the withdrawal. In other words, they believe that they have the right to withdraw life-sustaining medical treatment or care without consent.
Justice J. Himel heard the case on February 25, 28 and March 3, 2011 and her judgement was published on March 9. This decision is a precedent setting case concerning the question of who has the right to decide to withdraw life-sustaining medical treatment.
The Rasouli Decision.
The first question Justice Himel asked was: Should the physicians have brought the proposed plan to withdraw treatment to the Consent and Capacity Board or is the Superior Court of Justice the appropriate forum to determine the case?
The doctors argued that they were not required to ask the Consent and Capacity Board for consent to withdraw treatment. They were only required to seek consent for treatment.
Justice Himel concluded that the doctors should have brought the case to the Consent and Capacity Board for a decision. She stated that:
“Treatment” under the Health Care Consent Act includes the withdrawal of life support. Therefore doctors require consent when withdrawing life support in Ontario.”
The second question was: Does the Canadian Charter of Rights and Freedoms apply to this case?
The lawyers for Mr Rasouli and his wife argued that since the Charter applies to hospitals, because they are a publicly funded institution, that the Charter also applies to the doctors, who work in the hospitals and are paid through public funds. They argued that Mr. Rasouli’s Charter rights were breached under Section 7 – rights to “life, liberty and security of the person”
Justice Himel concluded that the Charter does not apply in this case. She stated:
“I am of the view that the Canadian Charter of Rights and Freedoms does not apply to the proposed decision of the Physicians to withdraw mechanical ventilation.”
The Third question was: Is injunction relief appropriate in this case?
The lawyers for Mr. Rasouli and his wife argued that an injunction was necessary in order to prevent the doctors from withdrawing the ventilator without consent.
The lawyers for the doctors argued that consent was not required for the doctors to withdraw the ventilator and that no injunction could prevent them from withdrawing the ventilator.
Justice Himel concluded that an injunction was not necessary because the doctors were required to obtain consent before withdrawing the ventilator. If they are not given consent from the substitute decision maker, then they are obligated to seek consent through the Consent and Capacity Board. She stated:
“I have concluded that the doctors do need consent of the substitute decision-maker under the statutory scheme of the Health Care Consent Act to remove Mr. Rasouli from life support. Accordingly, no injunction need be granted.”
The doctors have appealed the decision of Justice Himel to the Superior Court. The doctors continue to believe that they are not required to obtain consent before withdrawing life support.
What is at stake?
If the doctors win the appeal at the Superior Court, then doctors will not be required to obtain consent before withdrawing life support. The definition for life support includes providing Hydration and Nutrition (fluids and food). Therefore, doctors will be able to withdraw fluids and food without consent from a person who is, for example, diagnosed as PVS, but who is not otherwise dying. Families of people with cognitive or other disabilities and people experiencing life threatening conditions will be unable to prevent a doctor from withdrawing life-support, if the doctor decides that the life-support is futile (futile care theory).
Many doctors are experiencing increased pressure to contain the cost of health care. There is an increasing tendency to make decisions based on a “quality of life” ideology and futile care theory. Considering these trends, it is essential that the Himel decision be upheld by the Superior Court.
This Rasouli case will determine if doctors are required to obtain consent before withdrawing a ventilator, antibiotics, or even fluids and food. If we win this case, your doctor will be required to obtain consent before withdrawing life support or basic care. It is euthanasia to withhold or withdraw fluids and food from a person who is not otherwise dying.
The cost to intervene in the Rasouli case is estimated at $20,000. EPC needs many generous donations to make the intervention possible. If we win, the Rasouli decision may be appealed to the Supreme Court of Canada. We have consulted other organizations who share our concerns.