In a 5-2 decision the Supreme Court of Canada has upheld a lower court decision that doctors must obtain consent from patients or substitute decision-makers before withdrawing life-sustaining treatment where such a decision is anticipated to result in the death of the patient.
The case–Cutherbertson v Rasouli–revolved around the insistence of the Sunnybrook Health Sciences Centre in Toronto that doctors have a unilateral right to withdraw life-sustaining treatment that they consider futile from Hassan Rasouli, a retired engineer.
The Euthanasia Prevention Coalition (EPC) applauded the precedent-setting decision. The EPC intervened in the Rasouli case.
Writing for the majority Chief Justice Beverley McLachlin said that “By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way.” She added, “The physicians’ attempt to exclude withdrawal of life support from the definition of ‘treatment’ … cannot succeed. …While the end‑of‑life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA [Ontario’s Health Care Consent Act].”
Hugh Scher, the lawyer who represented EPC at the Supreme Court of Canada, stated
“We are pleased that the Supreme Court has recognized the need for oversight of doctors relative to treatment decisions at the end of life. The Court decision ensures that patient values, beliefs and best interests are given prominence, in conjunction with the clinical considerations of doctors”
Alex Schadenberg, Executive Director of the EPC, said
“There is a real concern about the impact of accuracy of diagnosis and the critical role of patient autonomy in the making of treatment decisions. EPC is pleased that the Supreme Court of Canada maintained that doctors are not the arbiters of life and death.”
Hassan Rasouli 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 doctors, Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld, determined that Mr. Rasouli was in PVS and decided to withdraw the ventilator, arguing treatment was futile. However his wife, Parichehr Salasel, who is also a physician, refused to give consent to withdrawing the ventilator.
The Rasouli family insisted that Mr. Rasouli was not PVS and was, in fact, responding. The family was later proven to be correct and his medical condition was upgraded.
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, in fact, 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 to the Court of Appeal for Ontario.
The Court of Appeal for Ontario unanimously decided that doctors did not have the unilateral right to withdraw life-sustaining treatment. They upheld the role of the Consent and Capacity Board and stated that 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.
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