Editor’s note. This is excerpted from a post on Mr. Schadenberg’s blog.
On May 17, the Supreme Court of Canada ruled against a motion from the family of Hassan Rasouli, asking the Supreme Court to quash the Rasouli case, a case that seeks to determine whether or not physicians have the right to unilaterally withdraw life-sustaining treatment in Canada.
Last year the Supreme Court of Canada decided to hear the Rasouli case, even though a three-judge panel on the Ontario Court of Appeal unanimously decided that doctors must obtain consent before withdrawing life-sustaining treatment.
The Supreme Court decided to hear the Rasouli case in spite of the fact that new evidence proves that Hassan Rasouli, the 60-year-old retired engineer who obtained significant brain impairment from a post-surgery infection in October 2010, is not in a Persistent Vegetative State (PVS), a condition that the doctors at Sunnybrook hospital had based their case upon.
The Euthanasia Prevention Coalition successfully intervened in the Rasouli case at the Ontario Court of Appeal and has sought intervener standing in the case at the Supreme Court of Canada.
Some media reports have misinterpreted the Rasouli case by stating that this case will determine whether or not a family can demand medical treatment that doctors consider to be futile. Patients and families do not have the right to demand medical treatment.
The Rasouli case will determine whether or not doctors have the right to withdraw life-sustaining treatment that the doctor considers futile, without the consent of the family or the patient. Based on the definition of medical treatment this decision is not limited to ventilator cases. The Supreme Court of Canada decision will extend to issues related to fluids and food, antibiotics and other life-sustaining treatments.
The Rasouli decision will need to define futility. The Ontario Court of Appeal unanimously decided that medical treatment that is physiologically futile can be withdrawn from a patient without consent. If a doctor is providing treatment that is of no benefit to the patient then it can be withdrawn without consent. The Ontario Court of Appeal decision also found that Hassan Rasouli is benefiting from the ventilator. The ventilator is not futile because it is enabling Mr. Rasouli to breath, which is what the ventilator is designed to do. Therefore the ventilator is not physiologically futile.
The problem with the definition of futility is that the doctors seem to have defined Mr. Rasouli as futile, therefore no level of treatment is considered to be of benefit to him.
Some media reports have suggested that if the Supreme Court of Canada decides that doctors must obtain consent before withdrawing life-sustaining treatment that there will be a large number of expensive cases in an already cash-strapped medical system. The fact is that the Consent to Treatment Act in Ontario has existed for more than 15 years and in that time very few disputes between patients (family or substitute decision maker) and physicians were not resolved. The current system in Ontario is working reasonably well.
The Rasouli case is important.
If doctors are given the unilateral right to withdraw life-sustaining treatment without the consent of the family or the patient, then doctors will become the sole decision makers of what is considered to be an acceptable quality of life. Doctors should not have the right to determine who lives and who dies based on personal and subjective beliefs related to the quality of life of another person?
Issues of equality are at stake. If doctor are given the unilateral right to withdraw life-sustaining treatment without the consent of the family or the patient, then doctors will gain the right to impose their religious or cultural perspectives upon their patients.
Doctors often make a wrong diagnosis. Decisions to withdraw life-sustaining treatment will be imposed on a family, like the Rasouli family, when the diagnosis was originally wrong. You can’t bring a loved one back and in the case of Hassan Rasouli, he is not in a PVS state and he continues to improve.
The Supreme Court of Canada should have upheld the unanimous Ontario Court of Appeal decision that was balanced and clearly protected the lives of people who are dependent on life-sustaining treatment while recognizing that doctors can unilaterally withdraw physiologically futile treatment. …
The Supreme Court needs to state doctors are required to obtain consent before withdrawing life-sustaining treatment that is not physiologically futile. This means that a person who is brain injured but living, will not have their ventilator of fluids and food withdrawn by the doctors without consent