A. INTRODUCTION
In a judgment released on June 29, 2011, the Ontario Court of Appeal decided that doctors must obtain the consent of the
substitute decision maker to withdraw life support and move the patient to
palliative care, failing which the doctors’ proposed action must be referred
for determination to the Consent and Capacity Board, established under the
Ontario Health Care Consent Act. The judgement will be of particular
interest to both hospitals and other health care charities, as well as many
religious charities.
B. FACTS
Mr. Hassan Rasouli has been in what his
doctors describe as a “persistent vegetative state” since October 7, 2010 as a
result of complications following surgery to remove a benign brain tumour. He
is attached to a mechanical ventilator and receiving artificial nutrition and
hydration. Believing his case to be “hopeless,” his doctors proposed that the
life sustaining measures be removed and that he be given palliative care. Mr.
Rasouli’s wife and substitute decision maker, continuing to hope that he would
recover, refused to consent to the withdrawal of life support. She also applied
to the Ontario Superior Court of Justice for an order restraining the doctors
from proceeding with their treatment plan without her consent and, failing that,
to refer the matter to the Consent and Capacity Board for determination.
C. THE LEGISLATION
The case was concerned solely with
interpreting the provisions of the Health Care Consent Act (the
“Act”). The relevant provisions of the Act may be summarized as follows.
The purpose of the Act is to provide
consistent rules for consent to treatment, to facilitate treatment for persons
lacking capacity to make decisions, and to ensure a significant role for
supportive family members.
A doctor who proposes a “treatment” for
a person shall not administer the treatment without the person’s consent, or if
the person is incapable, without the consent of the person’s substitute decision
maker. If the substitute decision maker knows of a wish applicable to the
circumstances that the patient expressed when capable, the substitute decision
maker must follow it. Otherwise, the substitute decision maker is to make
treatment decisions based on the best interests of the patient, according to
criteria set out in the Act concerning the beliefs and wishes of the incapable
person and the nature and value of the treatment.
The words “treatment” and “treatment
plan” are defined in the Act and the decision turned on their interpretation.
The relevant portions of the definitions for the purposes of this bulletin are:
“plan of treatment” means a plan
that provides for the administration to the person of various treatments or
courses of treatment and may, in addition, provide for the withholding or
withdrawal of treatment in light of the person’s current health condition and;
“treatment” means 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…
D. POSITION OF THE DOCTORS
The doctors argued that from a medical
perspective all avenues had been exhausted, there was no hope of recovery, and continuing
life support would be of no benefit to Mr. Rasouli. In their view, measures
that are not medically indicated do not come within the definition of
“treatment” under the Act and can, therefore, be withdrawn without the substitute
decision maker’s consent. Requiring her consent would set a dangerous precedent,
encouraging patients to insist on treatments that their doctors regard as
medically futile. The doctors were not suggesting that they could withdraw
treatment in an arbitrary or irresponsible fashion. On the contrary, they would
still be required to act in the patient’s best interests and meet the required
standard of care.
E. POSITION OF THE SUBSTITUTE DECISION MAKER
From the perspective of the wife and
substitute decision maker of Mr. Rasouli, the medical measures were of benefit
because they were keeping her husband alive. She argued that “he is entitled to
remain alive, with the assistance of life support measures, until such time as
she feels there is no hope for his recovery.” (para.44)
F. DECISION OF JUSTICE HIMEL ON THE APPLICATION
Justice Susan Himel of the Ontario
Superior Court of Justice heard the application of the substitute decision
maker over three days and found in her favour. Justice Himel determined that
the definition of the word “treatment” included a “plan of treatment” which
includes, as part of its definition, the “withholding or withdrawing of
treatment”. She did not, however, rely entirely on this rather circular
argument but also found that “life support” could be considered “therapeutic”
treatment under the definition of treatment and, therefore, its withdrawal
necessarily means the “withdrawal of treatment”. The doctors were thus required
to obtain the consent of the substitute decision maker prior to withdrawing the
treatment and, failing that, to apply to the Consent and Capacity Board for a
review of the substitute decision maker’s decision in light of the best
interests of the patient.
G. DECISION OF THE COURT OF APPEAL
The Court of Appeal reached the same
result as Justice Himel but for different reasons, which attempted to address
the concerns of the doctors about being forced to administer treatments that
they consider to be of no benefit to the patient.
While the Court of Appeal insisted that
it was not necessary to “finally decide” the issue of whether “treatment” as
defined under the Act must have some medical benefit, it did rather forcefully
state that “if the legislature intended that consent was required to the
withholding or withdrawal of life support measures that are considered to be
medically ineffective or inappropriate we would have expected clearer language
to that effect.” (para.41)
The Court of Appeal noted that the doctors’ plan of
treatment consisted of 1) withdrawing life support and 2) providing palliative
care. Palliative care was clearly included in the definition of “treatment”
under the Act and was a necessary response to the removal of life support. In
the Court’s opinion, the withdrawal of life support and provision of end-of-life
palliative care were integrally linked as a “treatment package,” both therefore
requiring the substitute decision maker’s consent or a determination by the
Consent and Capacity Board. In other words, the Court interpreted “end-of-life
palliative care to include the withdrawal of life support measures where those
measures are in place.”
The Court distinguished Mr. Rasouli’s circumstances from the
situation where a treatment, which is no longer effective, is withdrawn but end-of-life
palliative care is premature because the patient’s death is not imminent. In
the Court’s opinion, this distinction responds to the doctors’ concern that Justice
Himel’s reasons in the Rasouli decision would force them to administer or
continue treatments that they judge to be medically futile, if insisted upon by
their patients.
H. CONCLUSION
The decision of the Court of Appeal is
based on statutory interpretation of an Ontario Act, not on the common law. It
concerns withdrawal of treatment in the narrow context of end-of-life care. It
remains to be seen how broadly it will be interpreted by other jurisdictions.
While the Court declined to deal with the
“metaphysical debate” about the medical value of the life support measures, it
nevertheless dealt with a very sensitive and compelling issue. It underlines
the importance that these end-of-life decisions be, as the Court said so well,
“worked out over time through a combination of patience, understanding, and
professional guidance and counselling.” Failing that, the expertise of the
Consent and Capacity Board can be called on to make a determination.
