Editor’s note. This appears on the fine blog of Alex Schadenberg, executive director of the Euthanasia Prevention Coalition. For more on the case see “Landmark Victory Prevents Doctors from Unilaterally Removing Patient’s Life Support.”
The Rasouli family and the Euthanasia Prevention Coalition (EPC) have won a precedent setting decision in the Court of Appeal for Ontario.
EPC applauds the unanimous decision of the Ontario Court of Appeal to uphold a lower court decision which requires that doctors obtain consent from substitute decision-makers before unilaterally withdrawing life-support where such a decision is anticipated to result in the death of the patient.
The unanimous Court of Appeal ruled that it is necessary for doctors to raise any objections or concerns they may have about consent before the Ontario Consent and Capacity Board who has the jurisdiction to determine the issue of consent and to address any challenges to that consent made by a doctor.
A contrary decision would have effectively provided doctors with unilateral authority to withdraw life-support and end the life of a patient without any oversight, due process or procedural safeguards to patients, says Toronto lawyer Hugh Scher, who represented the EPC at the Court of Appeal.
Wednesday’s ruling is perhaps the most significant end of life decision ever made by a Canadian court. It suggests that other provinces ought to be looking at implementing a similar regime of a board or tribunal to address such matters where they arise, according to Mark Handelman, who is a former Vice-Chair of the Consent and Capacity Board and who also served as counsel to EPC on their intervention.
The three judge panel decided that:
“we are of the view that the application judge reached the correct result in this case. In short, we are satisfied that the plan of care proposed by the appellants does amount to “treatment” as defined in the Act.”
The Rasouli case concerns Hassan Rasouli who underwent surgery on October 7, 2010, at Sunnybrook Health Sciences Centre for a benign brain tumour. He experienced a bacterial meningitis infection that caused him significant cognitive damage.
On October 16, Mr Rasouli was placed on a ventilator and a tube was inserted to provide him hydration and nutrition. His condition remains similar, even though the Rasouli family insist that he can now respond.
His doctors determined that Mr. Rasouli was in PVS and decided to withdraw the ventilator, but his wife, Parichehr Salasel, who is also a physician, refused to give consent to the withdrawal of the ventilator.
The Rasouli family applied to the Superior Court of Justice to obtain an injunction to prevent the doctors at Sunnybrook hospital from unilaterally withdrawing the ventilator.
The case was heard over three days in February and March (2011) and the decision by Justice Himel was released on March 9, 2011.
Justice Himel decided that the Rasouli family did not need an injunction because the doctors are required to obtain consent before withdrawing medical treatment, which in this case was the ventilator.
The doctors appealed the decision of Justice Himel and thus the case went to the Court of Appeal for Ontario.
This is a huge victory for individual rights and it assures that the rights of individuals will be respected.
This decision has profound implications for patients throughout Ontario and Canada in terms of feeling safe and secure in accessing medical services near the end of life,
The decision maintains the role of the Consent and Capacity Board. Doctors continue to have the right to seek consent from the Consent and Capacity Board when consent is refused by the person or the attorney for personal care.