By Dave Andrusko
Described as “perhaps the most significant end-of-life decision ever made by a Canadian court,” Ontario’s top court has affirmed a lower court opinion that doctors may not unilaterally remove life support, including food and fluids, from patients against the family’s wishes.
The case of Hassan Rasouli v. Sunnybrook Health Sciences Centre is both similar to and different from “Baby Joseph” Maraachli, the critically ill baby whose parents fought for the right to bring their home to die surrounded by family.
Hassan Rasouli, a retired 59-year-old mechanical engineer, had gone to the Sunnybrook Health Sciences Centre to have a benign tumor removed. However, after the operation, he developed an infection that severely damaged his brain.
Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld concluded that the Rasouli was in a persistent vegetative state (PVS)–a diagnosis his physican wife, Parichehr Salasel, vigorously disputed. Since further treatment would not benefit him, they said, they were obliged to refrain from continuing such treatment even if the patient or substitute decision-maker (his wife) does not consent to the withdrawal.
The Rasouli family applied to the Superior Court of Justice for an injunction. From the beginning, the physicians could have taken the dispute with the Rasouli family to the province’s Consent and Capacity Board for resolution. But their whole point was they ought not be required to.
They lost first with Superior Court decision Justice Susan Himel. She wrote, “’Treatment’ under the Health Care Consent Act includes the withdrawal of life support. Therefore doctors require consent when withdrawing life support in Ontario.” When the family refuses consent, doctors must go to the Consent and Capacity Board for a decision.
Writing for the Ontario Court of Appeal, three justices unanimously upheld Justice Himel’s ruling. (You can read the decision at www.lifesitenews.com/images/pdfs/C53442.rere.pdf)
A former member of the Consent and Capacity Board, who represented the Euthanasia Prevention Coalition, hailed the landmark decision.
“Today’s ruling is perhaps the most significant end-of-life decision ever made by a Canadian court,” said Mark Handelman. “It suggests that other provinces ought to be looking at implementing a similar regime of a board or tribunal.”
Of course, by no means does having the right to appeal to the Board guarantee the family will win. But if doctors can unilaterally remove even food and fluids, by the time the family is able to secure a legal remedy the family member is most likely dead.
In the case of “Baby Joseph,” the board agreed with physicians at London Health Sciences Centre. They diagnosed Joseph to be in a PVS and planned to take Joseph off a ventilator and feeding tube. But the legal wrangling provided the family with time to mobilize counsel and allies and eventually persuade an American hospital, SSM Cardinal Glennon Children’s Medical Center in St. Louis, Missouri, to take Joseph.
He is now at home and reportedly breathing on his own.
Answering the question, “What is at Stake?” the Euthanasia Prevention Coalition wrote this prior to the decision.
“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).”
For more on the case see “Victory for Individual rights – Doctors must obtain consent before withdrawing life-sustaining treatment”