A. INTRODUCTION
On October 18th, 2013, the Supreme Court of Canada upheld the Ontario
Court of Appeal’s
decision that under Ontario’s Health Care Consent Act,
1996 (“HCCA”) physicians cannot withdraw life support from
an incapable patient without the consent of the substitute
decision maker or an order from the Consent and Capacity Board
(“Board”) established by the HCCA. The decision was a five to two split with
the Chief Justice writing the “majority opinion”, which is
hereinafter referred to as “the Court.” This Charity Law
Bulletin reviews only the majority opinion, which will
be of interest to the charitable and health care sectors,
particularly those in Ontario.
B. FACTS
The patient, Hasan
Rasouli, has been unconscious since October 16, 2010, due
to an infection following surgery to remove a benign brain
tumour. Mr. Rasouli’s physicians proposed to withdraw his mechanical ventilator
and artificial nutrition and hydration because, in their medical
opinion, he was in a “persistent vegetative state”, there
was no reasonable prospect for recovery, and continued life
support was medically futile. Ms. Parichehr Salasel, Mr. Rasouli’s wife and substitute decision maker, refused to consent
to this plan and applied to the Ontario
Superior Court of Justice to prevent the physicians from withdrawing
life support without her consent or a decision by the Board.
Both the Superior Court of Justice and Ontario Court of Appeal
concurred that challenges to Ms. Salasel’s consent must be brought to the Board for resolution.
C. THE LEGISLATION
The HCCA
provides a detailed statutory scheme regulating consent
to treatment for patients who lack the capacity to consent.
The purposes of the HCCA
include providing consistent rules for consent to treatment,
facilitating treatment for persons lacking capacity to make
decisions, enhancing autonomy, ensuring a significant role
for supportive family members and promoting communication
between health practitioners and their patients. A “treatment”
can’t be administered to an incapable person without the consent
of his or her substitute decision maker (often a family member
or close personal friend) who must decide on the basis of
the patient’s known wishes when capable or in the best interests
of the patient according to factors set out in the HCCA. Disputes between physicians and the substitute
decision maker about the treatment of incapable patients are
to be resolved by the Board. The HCCA
defines “treatment” as “anything that is done for a therapeutic,
preventive, palliative, diagnostic, cosmetic or other health-related
purpose, and includes a course of treatment, plan of treatment
or community treatment plan…” The interpretation of “treatment”
and “health-related” purpose were, therefore, key to the outcome
of this case (see sections 1, 2, and 10).
D. POSITION OF THE DOCTORS
The physicians brought forward three arguments.
Firstly, while conceding that in general life support is “treatment”,
they argued that it is not “treatment” when it is of no “medical
benefit” or not “medically indicated.” Secondly, they asserted
that the withdrawal of life support is not “treatment.”
Thirdly, they claimed that if consent is required for withdrawal
of treatment, they will be in an “untenable ethical position.”
All three arguments were rejected.
With respect to the first argument, the
physicians claimed that the life support provided to Mr. Rasouli
is not “treatment” under the HCCA
because it does not provide a medical benefit to him. The
Court disagreed with the argument that “treatment” and “health-related
purpose” under the HCCA
are restricted to procedures that provide a medical benefit.
A distinction was drawn between “medical benefit”, which is
a clinical term used by physicians to decide whether to offer
a procedure to a patient, and “health-related purpose” which
is the legal term used in the HCCA
to identify the procedures that require consent. The Court
determined that life support is included in “treatment” because
it has a “therapeutic” and “preventative” purpose, as listed
in the definition of “treatment” under s.2(1). Furthermore,
the objects of HCCA with
their emphasis on consent, autonomy and family involvement
contemplate the inclusion of life support in the word “treatment.”
The Chief Justice said “..I cannot accept the physicians’ argument that “treatment”
and “health-related purpose” are confined to procedures that
are of medical benefit in the view of the patient’s medical
caregivers”(para.44).
With respect to the second argument, the
physicians argued that the withdrawal of treatment
is not actually “treatment” under the HCCA, and therefore, consent is not required for the
withdrawal. The Court disagreed, finding that the definition
of “treatment” was broad enough to include withdrawal of treatment
which may be done for a “therapeutic, preventative, palliative
or other health related purpose” such as preventing suffering
and respecting dignity. Rather than viewing withdrawal
of treatment as one act, the Court viewed it as a series of
acts or medical interventions, each having an impact on the
patient’s body and a health-related purpose, and therefore
requiring consent. Seen from this perspective,
and in light of the objects of the HCCA,
the withdrawal of life support “impacts patient autonomy
in the most fundamental way” (para.68).
Thirdly, the physicians argued that they
would be put in an “untenable ethical position” if compelled
to maintain life support even though, in their view, it is
not medically indicated or could even harm the patient, thus
putting them in violation of their professional duty to act
in the best interests of their patient. The Court once again
disagreed with the physicians and stated that any tension
a physician experiences with professional or personal ethics
is an inherent part of practicing medicine, noting that the
law of consent evolved in cases where physicians, for ethical
reasons, insisted on treating patients against their wishes.
The Court noted that if a physician is placed in an ethical
dilemma regarding the patient’s best interests, he or she
may refer the matter to the Board in accordance with the HCCA
and no physician could be criticized for complying with a
decision of the Board. In addition, the Board’s procedure
for resolving disputes between physicians and patients provides
opportunities for the physician to give information about
the patient’s medical condition, and the medical benefit of
maintaining or withdrawing life support. Although the withdrawal
of life support may pose an ethical dilemma for the physician,
it did not change the legal conclusion that the withdrawal
of life support in the circumstances of this case is a treatment
that requires the consent of Mr. Rasouli’s wife.
E. PROCEDURE UNDER
HCCA FOR RESOLVING DISPUTES ABOUT CONSENT
The court confirmed that the HCCA
provides the steps that a physician must follow with respect
to treatment of patients who are incapable of giving consent.
The physician must first seek the consent of the substitute
decision maker who must act in accordance with the patient’s
previously expressed wishes if known, and failing that, in
accordance with the patient’s best interests having regard
to his or her medical condition, the patient’s well being,
the patient’s values and any prior expressed wishes that are
not binding on the substitute decision maker. The decision
of the Court provides a very helpful summary of the law related
to prior expressed wishes and the best interests of the patient.
If the substitute decision maker refuses to consent to the
treatment, the physician may challenge the refusal by application
to the Board and provide evidence about the patient’s medical
condition and best interests. The Board may override the decision
of the substitute decision maker and substitute its own decision
if it finds that the substitute decision maker did not comply
with the criteria of the HCCA.
This means that “...even in life-ending situations, the
Board may require that consent to withdrawal of life support
be granted” (para.78).
The Court noted that, while the substitute
decision maker probably better understands the wishes and
values of the patient and the physician probably better understands
the medical condition, the Board, composed of experts, is
well placed as a neutral body to resolve disputes between
them, subject to judicial review.
F. APPLICATION OF
THE HCCA TO THE RASOULI CASE
The physicians, having determined that
continuing life support was not medically indicated for Mr.
Rasouli, were obligated to obtain
the consent of Ms. Salasel to withdrawal
of the treatment. Since she did not consent, the physicians
can apply to the Board for a decision that Ms. Salasel’s
refusal to consent was not in his best interests. The Court,
therefore, did not decide whether Mr. Rasouli’s
life support could be withdrawn, leaving that decision to
the Board if an application is made.
G. COMMENTARY
While the decision of the Supreme Court
of Canada dealt with tremendously important concepts, such
as definitions of “treatment” and “withdrawal of treatment”,
concerning physicians not having the last word in end of life
care and the role of family and other substitute decision
makers in end of life care decisions, the limits of the Court’s
decision must be kept in mind. First and foremost, this decision
was based on the interpretation of an Ontario statute.
As the Chief Justice said in paragraph 4, it was not a case “.... about who, in the absence of a statute,
should have the ultimate say in whether to withhold or withdraw
life-sustaining treatment. Nor does the case require us to
resolve the philosophical debate over whether a next-of-kin’s
decision should trump the physicians’ interest in not being
forced to provide non-beneficial treatment and the public
interest in not funding treatment deemed of little or no value.”
It should also be noted that the Court’s findings on “withdrawal”
of treatment were limited to withdrawing life support in end
of life situations. As the Chief Justice stated in paragraph
70, “This case does not stand for the proposition that
consent is required under the HCCA
for withdrawals of other medical services or in other medical
contexts.”
The court interpreted the Ontario legislation
based on the specific words in the statute. Other provinces
have adopted similar legislation to govern consent to treatment
of incapable patients. However, if the wording for “treatment”
is not similar to that of the Ontario legislation, the other
province’s legislation would have to be interpreted, and the
Rasouli decision may or may not be of assistance in this regard.
Regardless of the limitations of this case for other provinces,
it is very significant for the healthcare and charitable sectors
in Ontario and for the residents in Ontario. In addition,
the Court’s language around important decisions concerning
end of life care which affirms the autonomy of the patient,
respect for the patient and involvement of substitute decision
makers is bound to resonate in decisions made under different
statutory schemes and the common law.
