Rasouli v. Sunnybrook Health Sciences Centre: Life or Death?

On October 7, 2010, Mr. Hassan Rasouli underwent brain surgery at the Sunnybrook Health Sciences Centre to remove a benign tumour. A number of “complications” occurred after the operation, however, and Mr. Rasouli contracted a severe case of bacterial meningitis. Within 10 days of the operation, he was breathing through a mechanical ventilator. To this day, nearly nine months later, Mr. Rasouli remains in what his doctors refer to as a permanent and unconscious “vegetative state,” kept alive only by a breathing machine and artificial nutrition administered through a tube.

According to Dr. Cuthbertson and Dr. Rubenfeld – the two doctors responsible for Mr. Rasouli’s treatment – there is absolutely no hope for recovery. As such, they believe that it is in the patient’s best interest to be taken off life support and transferred to palliative care. Ms. Parichehr Salasel, however, is determined to keep her husband, Mr. Rasouli, alive.

As her husband’s litigation guardian and substitute decision-maker, Ms. Salasel is of the view that “where there is life, there is hope.” In fact, she argues that her husband has actually “responded” on a few occasions to the voices of her and her children. In short, she refuses to consent to the doctors’ plan to withdraw life-sustaining treatment. If they intend to override her lack of consent, she maintains, they must apply to the Consent and Capacity Board (CCB), an independent provincial tribunal.

For all of its emotional, philosophical and scientific complexity, the issue here appears to be, at the very least, clear: life or death? The doctors think it is time to let Mr. Rasouli die, and Ms. Salasel thinks not. Realizing that the two parties are, on a number of levels, worlds apart, Ms. Salasel turns to the courts.

The Superior Court

In her application to the Superior Court of Justice of Ontario, Ms. Salasel sought two specific orders:

(1) An order restraining the appellants [doctors] from implementing the proposed changes to the respondent’s current treatment plan without first obtaining her consent.

(2) An order requiring the appellants [doctors] to refer their treatment proposal to the Board [CCB] should they persist in challenging Ms. Salasel’s authority to reject it on the respondent’s behalf as being contrary to his best interests.

The doctors cross-applied for, among other things, a declaration that (a) they can lawfully withdraw life-sustaining treatment, and (b) they do not need Ms. Salasel’s consent in order to proceed with their proposed “treatment plan.” In March, 2011, Justice Susan Himel found in favour of Ms. Salasel, declaring that the doctors’ proposal to “end life sustaining treatment to the applicant…must be referred to the Consent and Capacity Board.” Until the CCB makes a decision, she ruled, the doctors must not withdraw mechanical ventilation.

The Court of Appeal

As expected, the doctors appealed Justice Himel’s orders. The appellants note that patients do, without question, have the right to refuse treatment, but they do not have the right to demand treatment that is of no medical value. The current treatment plan, they argue, is exactly that: of no medical value. They make it very clear that they are not saying doctors should be permitted to withdraw treatment whenever they like, free of legal consequences. Rather, a doctor is obliged to provide the patient with treatment that she believes, in her expert opinion, to be medically effective. As such, the appellants contend that Justice Himel’s orders will set a “dangerous precedent” by forcing doctors to “obtain the consent of patients before withholding or withdrawing treatment that they consider to be of no medical value.”

More importantly, the doctors argue that Justice Himel erred in finding that the “withdrawal of life support” constitutes “treatment” under the Health Care Consent Act. This was a crucial interpretation, of course, because “treatment” requires consent. Thus, the appellants submit that the withdrawal at issue here is not actually treatment as defined by the Act, and so it does not require the patient’s consent.

Writing for a unanimous Court of Appeal, Justices Moldaver and Simmons focus on this issue of whether or not Justice Himel erred in her interpretation of “treatment” under the Act. In essence, Justice Himel found that the Act recognizes specifically that “withdrawal of treatment” may form part of a “plan of treatment.”  Moreover, the act makes it clear that “treatment” includes a “plan of treatment.” Thus, withdrawing life support is an act of treatment. The appellants admit that this may be true in cases where life support measures serve a “therapeutic or preventive purpose.” This is not one of those situations, however, because the life support he is receiving is of no medical value.

Ms. Salasel, on the other hand, cannot accept that these life support measures have absolutely no value. Her argument, although admittedly simplistic, is persuasive in the sense that these measures are literally keeping him alive. For the purpose of this appeal, however, Justices Moldaver and Simmons decide that they:

…need not resolve the metaphysical debate over whether life saving measures in cases such as the respondents are of no medical value because they are futile, or of high medical value because they are keeping him alive while his family continues to hold out hope for his recovery.

Having disregarded the medical value debate as “metaphysical,” the Justices turn their attention to the question of whether the doctors’ plan constitutes treatment. The key here is that the plan is not simply to withdraw life support, but to subsequently provide palliative care. While palliative care is not explicitly defined in the Act, it is included in the Act’s definition of treatment. Thus, the doctors must, by law, obtain consent from Ms. Salasel before administering palliative care.

Based on expert testimony, the Justices find that the stopping life support and beginning end-of-life care are, at least in this situation, inextricably connected. The Justices put it like this:

…in the respondent’s circumstances, removal of the ventilator is a necessary precondition to the administration of end-of-life palliative care and end-of-life palliative care is a necessary response to removal of the ventilator.

Where both are recommended, as is this case here, one cannot be separated from the other. They are a package. In essence, the Justices are saying that the consent requirement for palliative care extends to the doctors’ entire plan, which happens to include the withdrawal of life support measures. Rather than actually address the issue of whether the removal of life support constitutes treatment requiring consent, the Justices conclude somewhat simply that the entire plan requires consent because it includes palliate care, which is a “treatment” under the Act. This means that if Ms. Salasel continues to withhold consent – which she likely will – the doctors “proposal” will have to be referred to the CCB.

Evidently, the issue facing the courts was not one of life or death. It was life, death or let someone else decide. Through some sound, yet crafty logic, both the Superior Court and the Court of Appeal managed to push the question into someone else’s lap.

Good luck, CCB.

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