Rasouli case: A strange case to prove a point

By Alex Schadenberg, executive director
Euthanasia Prevention Coalition

Matt Gurney published a thought provoking article in the National Post, today, entitled: “Hassan Rasouli: A strange case to prove a point with

The Rasouli Family

The Rasouli case is particularly concerning since the “doctors” in the case continue to seek to have his ventilator withdrawn without the consent of the family even though Mr. Rasouli has recovered from his original diagnosis.

The Rasouli case began in late 2010, when the “doctors” at Sunnybrook Hospital in Toronto told the Rasouli family that they would be withdrawing the ventilator from Hassan Rasouli, who was dependent on the ventilator, with or without the consent of the Rasouli family.

In response to the threat to withdraw the ventilator, the Rasouli family asked the court for an injunction to prevent the ventilator from being withdrawn.

Justice Himel heard the case and decided that the Rasouli family did not need an injunction because the “doctors” are required to obtain consent before withdrawing life-sustaining treatment.Himel decided that if the doctors wanted to withdraw the ventilator without the consent of the family that they would need to bring the case before Ontario’s Consent and Capacity Board. (See my article about Justice Himel’s decision at http://www.alexschadenberg.blogspot.ca/2011/04/euthanasia-prevention-coalition-seeks.html.)

The “doctors” appealed the Himel decision to the Ontario Court of Appeal rather than bring the case to the Consent and Capacity Board.

The Euthanasia Prevention Coalition (EPC) intervened in the Rasouli case at the Ontario Court of Appeal.

Last year the Supreme Court of Canada decided to hear the Rasouli case, even though three Justices 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 even though new evidence proves that Hassan Rasouli, the 60-year-old retired engineer who obtained a 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 Rasouli case will determine whether or not doctors have the right 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 decision will extend to issues related to hydration and nutrition and other life-sustaining treatments.

The Supreme Court will likely define what constitutes medical futility.

The Ontario Court of Appeal unanimously decided that medical treatment that is physiologically futile can be withdrawn from a patient without consent. Therefore, if a doctor is providing treatment that is of no benefit to the patient, then it can be withdrawn without consent.

[But] 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, in this case, is not 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 maintain the unanimous decision of the Ontario Court of Appeal.