Rasouli’s consent required to withdraw life support, SCC rules

Mr. Rasouli has been in a persistent vegetative state at Sunnybrook Health Sciences Centre (“Sunnybrook”) since October 2010. For the past three years, he has been kept alive by way of mechanical ventilation and artificial nutrition and hydration. His doctors saw no prospect of recovery, and sought to withdraw Mr. Rasouli’s life support in order to begin palliative care. His wife refused to provide her consent for such measures, and applied for a court order restraining the physicians from doing so. Ms. Salasel’s application on behalf of her husband has been discussed here on The Court in two previous posts.

On October 18, 2013, the Supreme Court of Canada had the final say on whether the doctors at Sunnybrook could withdraw Mr. Rasouli’s life support without his wife’s consent in Cuthbertson v. Rasouli, 2013 SCC 53. In a 5-2 majority judgement delivered by Chief Justice McLachlin, the SCC agreed with the Ontario Superior Court of Justice and the Ontario Court of Appeal in siding with Ms. Salasel. 

FACTS

Ms. Salasel is Mr. Rasouli’s wife, litigation guardian, and substitute decision-maker under the Health Care Consent Act, SO 1996, c 2, Sch A (“HCCA”). The HCCA provides a statutory scheme for resolving disputes between next of kin and physicians over the medical treatment of patients who are incapable of providing their informed consent. It also sets up an administrative tribunal, the Consent and Capacity Board (“CCB”), to make decisions on the issue of consent for such patients.

Dr. Cuthbertson and Dr. Rubenfield, the physicians who led the team responsible for Mr. Rasouli’s care, were of the opinion that continuing to provide life support would not provide any medical benefit to Mr. Rasouli and may cause greater harm. When they informed Ms. Salasel, she disagreed and stated that her husband would have wished to be kept alive, in accordance with his religious beliefs as a devout Shia Muslim.

Sunnybrook arranged for a second opinion from another neurologist, who concurred with the original diagnosis and assessment. Ms. Salasel was given an opportunity to obtain an independent opinion from another specialist, but she declined to do so. Nevertheless, the doctors agreed to postpone their plan to withdraw life support until the courts resolved their impasse.

TRIAL DECISION

The Ontario Superior Court of Justice (“ONSCJ”) granted Ms. Salasel’s application. Himel J. ordered that Mr. Rasouli’s life support could not be removed without the consent of his substitute decision-maker, and that any challenge to Ms. Salasel’s refusal must be brought before the CCB.

APPELLATE DECISION

The Ontario Court of Appeal (“ONCA”) upheld Justice Himel’s order. Sunnybrook had conceded that palliative care constituted “treatment” as defined by the HCCA, and Ms. Salasel’s consent would be required to administer such end-of-life measures. The unanimous ONCA ruled that the withdrawal of life support and the administration of palliative care were integrally linked together as a “treatment package”, and as such the consent of Mr. Rasouli’s substitute decision-maker was required before the doctors could initiate the first phase of their proposed plan of treatment.

SCC DECISION

Like the appellate court below, the majority of the Supreme Court of Canada sidestepped the formidable debates about whether withdrawing Mr. Rasouli’s life support constituted euthanasia or whether any Charter rights were engaged. Instead, the SCC held that the Rasouli case turned solely on the statutory interpretation of the HCCA. At paragraph 4, the Chief Justice held:

It is 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.

Under the HCCA, “treatment” is defined as “anything that is done” for therapeutic, preventive, palliative, diagnostic, and/or cosmetic purposes, or any other “health-related purpose” – and treatment requires consent. The doctors had argued before all three levels of court that Mr. Rasouli’s life support was of no medical benefit to him, and thus its withdrawal did not fall within the definition of treatment – accordingly, Ms. Salasel’s consent was not required.

However, the SCC found that the crux of issue is whether maintaining Mr. Rasouli’s life via artificial means serves a health-related purpose under the HCCA, not whether his life support conferred medical benefit. The 5-judge majority found that the wording of the HCCA does not limit “health-related purpose” to that which physicians consider to be medically beneficial. Moreover, life support furthers the therapeutic goal of keeping the body alive, and serves the preventive purpose of preventing death.

The SCC also upheld the ONCA’s finding that the withdrawal of life support entails physical interference with the patient’s body, and is closely associated with the provision of palliative care. Relying on the case law established by the CCB in its 17 years of existence, Chief Justice McLachlin found that while the ONCA’s assertion that removal of life support will always lead to the administration of palliative care may be too broad, palliative care will be administered in cases like Mr. Rasouli’s.

The minority dissent in Rasouli, penned by Justice Karakatsanis and concurred with by Justice Abella, held that the HCCA was not applicable in Rasouli and thus the common law applied. For Justices Karakatsanis and Abella, the Ontario legislature did not intend the HCCA to require patient consent for the withdrawal of medical treatment – merely its imposition. Withdrawal of life support brings medical treatment to an end, and is not medical treatment itself per se. Since Rasouli falls outside the ambit of the HCCA, the common law provides that such end-of-life disputes must be brought before the courts – not the CCB, as the majority of their colleagues ruled.

In response, Chief Justice McLachlin held, at paragraph 53:

Even if the HCCA merely codified the common law, this would not answer the question of whether consent is required for withdrawal of life support.  The common law is not at all settled on this issue.  While the common law has traditionally viewed consent as giving patients the right to refuse medical care rather than to refuse its withdrawal, courts have struggled with the applicability of this paradigm in the end-of-life context and have reached divergent conclusions [citations omitted.]

C.J.C. McLachlin was of the position that because the Ontario legislature established a separate administrative tribunal to resolve disputes over consent for incapable patients, these matters are better left to the CCB and not the judicial system. For the Chief Justice, the practical implication of Karakatsanis J.’s dissenting view was that it would heighten inequalities in access to justice where incapable patients lack the financial resources to fund a court action. The legal burden would shift from physicians being required to obtain consent before withdrawing life support, to the incapable patient’s family or friends seeking judicial relief.

The doctors had also argued that their ethical and professional obligations required them to withdraw life support where it is of no medical benefit to, or even may harm, the patient – despite the protests of a substitute decision-maker. In dismissing this argument, the SCC majority held that even if Rasouli was resolved in the way proposed by Karakatsanis J. – i.e. by way of a trial court rather than the CCB tribunal – the physicians may still be required by the trial judge to not withdraw life support and comply with Ms. Salasel’s wishes, thereby placing them in the same “untenable” ethical position. In any case, the Chief Justice ruled, ethical conflicts are an unavoidable facet of medical practice that legal principles cannot always resolve.

IMPLICATIONS FOR PHYSICIAN-ASSISTED SUICIDE

On October 10, 2013, the British Columbia Court of Appeal overturned a lower court ruling that decriminalized physician-assisted suicide in Carter v. Canada, 2013 BCCA 435. In doing so, the B.C. appellate court essentially left the issue of physician-assisted suicide to be decided by the Supreme Court of Canada.

The dissent in Rasouli provides some illumination into how the two members of Canada’s highest court might rule in the upcoming Carter appeal. At paragraph 197 of Rasouli, Karakatsanis J. held:

Artificial continuation of life will not always be in the best interests of the patient.  While the sanctity of life is an important principle of our legal system, it is not absolute; it is subject to exceptions where notions of dignity must prevail […] Further, the suggestion that life is an absolute value is contrary to medical and scientific notions of treatment.

Justice Sopinka, writing for the SCC majority in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, held at paragraph 59 that society’s respect for the sanctity of life prohibits allowing doctors to assist patients in committing suicide. It will be interesting to see if Justices Karakatsanis and Abella adhere to the principles espoused in their Rasouli dissent when deciding Carter v. Canada, more than two decades after Rodriguez.