Michael Ford (post until Oct. 31/19)
Estates & Wills & Trusts

End-of-life decision clarified certain questions

By Mary Wahbi

On Oct. 18, 2013 the Supreme Court of Canada released its decision in the Hassan Rasouli case, Cuthbertson v. Rasouli.

The physicians treating Rasouli, a patient in a persistent vegetative state since October 2010 after suffering an infection following brain surgery, were of the view that continuing life support would not provide any medical benefit to the patient and may cause him harm. They formed the opinion that all appropriate medical treatment for his condition had been exhausted.

As the patient’s substitute decision maker (SDM), Rasouli’s wife, Parichehr Salasel, disagreed with the physicians and refused to give consent to the withdrawal of treatment. Salasel did not accept that her husband was in a state of permanent and irreversible unconsciousness and believed that, as a devout Shia Muslim, he would wish to be kept alive.

The physicians took the position that withdrawal of treatment was not governed by the provisions of the Health Care Consent Act, 1996 (HCCA) and therefore did not require the consent of the SDM. The physicians were of the view that the SDM, in disagreeing with the physicians, should seek redress from the courts and not the Consent and Capacity Board, which in their view, did not have jurisdiction over the matter.

The decision of the Supreme Court of Canada answers two questions:

    1. Is withdrawal of life support “treatment” within the meaning of the HCCA, therefore requiring consent?

    2. If there is disagreement between the physicians and the SDM with regards to withdrawal of life support for an incapable person, what is the proper forum for resolving the dispute?

The physicians’ argument was that the withdrawal of life support was not “treatment” and therefore did not require consent. The physicians argued that treatment is limited to what the attending physician deems to be of medical benefit to the patient. Once the physicians concluded that life support no longer offers a medical benefit, they argued that it ceases to be treatment under the HCCA and therefore there is no requirement for consent to withdraw it.

The court disagreed. “Treatment” under the HCCA is defined 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...” While the physicians argued that there was no health-related purpose once an action is determined to have no medical benefit, the court responded that an interpretation of “treatment” confined to what the medical practitioners consider to be of medical benefit to the patient would undermine the purpose of the statute, being patient autonomy.

In the court’s view, “treatment” is much broader and health-related is not limited to “medical benefit.”

The court differentiated between whether physicians are correct in whether a procedure offers a medical benefit and whether a procedure requires consent. These are two very different concepts and the physician’s assessment is only the first step. If the court had agreed to this argument, the legal right to consent to medical procedures would have no meaning.

The court did not decide whether an SDM’s decision takes priority over a physician’s assessment. The court determined that the HCCA provides a complete statutory framework governing consent to treatment for capable and incapable patients. According to the court, this statute does the following:

    1. Gives effect to the patient’s autonomy as far as possible.

    2. If the patient’s autonomy is compromised by lack of capacity, the statute seeks to balance it against considerations related to the best interests of the patient.

    3. The statute provides for resolution of disputes by specialized tribunals instead of the courts (the Consent and Capacity Board).

The general manner in which the HCCA works is as follows:

    1. Medical treatment cannot be administered without consent.

    2. An SDM must consent to treatment of an incapable person.

    3. The SDM must, in making decisions, respect prior applicable wishes of the patient expressed while the patient was capable.

    4. If there are no wishes, the SDM must decide based on the best interests of the patient, taking into consideration a number of criteria enumerated in the HCCA.

    5. If there is any question as to the meaning of the wishes, the application of the wishes to the circumstances in question, or whether the SDM’s decision is in the best interest of the patient, application can be made to the Consent and Capacity Board for resolution.

Ultimately, the court made it clear that physicians are not in a position to unilaterally withdraw life support. Neither, however, is the SDM in a position to insist on futile medical treatment. If there is disagreement between the physicians and the SDM with regards to withdrawal of life support for an incapable person, it is clear now that the resort must be had to the Consent and Capacity Board.

The court essentially confirmed the status quo regarding consent and withdrawal of care which, as the court pointed out, has for the last 17 years been an issue the Consent and Capacity Board has dealt with.

This decision in essence was a decision about process, not the outcome, in Rasouli’s case. Disagreements over end-of-life decisions are to be dealt with by the Consent and Capacity Board in the first instance, not by the court. If the issue is withdrawal of life support and the SDM does not consent, the physicians will have to apply for review by the Consent and Capacity Board.

End-of-life decisions are not simple decisions and have enormous and final impact on the patient and family as well as other repercussions on the medical profession and society as a whole. I agree that physicians should not have unilateral power to make these decisions. At the same time, I agree with the dissenting position that neither patients nor their SDM should have the right to insist on the continuation of treatment that is futile, harmful, or contrary to medical standards of care.

The resolution, however, is not giving either “side” the ultimate right to make the decision but in having appropriate criteria to make the decision and in referring the competing claims to a neutral decision making body that can review the evidence and make the appropriate decision in each circumstance.

There is debate on whether the Consent and Capacity Board is more expert, efficient, and cost-effective a tribunal to deal with these issues than the courts or if it even has the mandate to consider the range of relevant issues that arise in end-of-life decisions.

While two questions were answered by the court, a number of even more interesting questions arise from this case.

First, this dispute in most cases can be avoided by having in place a Power of Attorney for Personal Care (POPAPC), which includes medical directives. The Substitute Decisions Act, 1992 (SDA) specifically empowers a person to appoint an attorney to make personal care decisions for the donor in the event of the donor’s incapacity. The attorney can be empowered to make decisions that include the elements of personal care referred to in s.45 of the SDA, namely, decisions relating to health care, nutrition, shelter, clothing, hygiene and safety, and including decisions to which the HCCA applies.

Most grantors of such powers specifically include direction to withhold or withdraw life support measures in the circumstances described in this case. Under the HCCA, s.21(1) requires the SDM to give or refuse consent to treatment in accordance with the donor’s known wishes applicable to the circumstances.

What would have happened if Rasouli had a POAPC that required all life-sustaining measures, no matter how futile by medical standards? According to the analysis of the court, the HCCA applies to withdrawal of treatment and the statute gives effect to the principle of patient autonomy as a first principle.

The best interests of the patient do not come into play if the patient’s wishes are known and applicable in the circumstances. In those cases, the patient’s wishes must be followed. That is the result of the court’s consent-based reasoning. Does it then give the patient or his SDM the right to insist on the continuation of treatment that is futile, harmful, or contrary to medical standards of care?

What about the financial burden on our medical system? The Globe and Mail reports: “Care in an ICU costs close to $1-million per year, per patient ... the number of ICU beds is limited and admission strictly controlled. Critical care doctors will likely become more conservative in their admission decisions." Our health care resources are limited and it is in all taxpayers’ interests not to waste them in futile causes.

What about the ethical obligations and legal duties of physicians? Should they have to provide treatment they consider non-beneficial or even detrimental? While it is clear that a doctor cannot impose unwanted treatment on a patient, it doesn’t follow that all treatment that a patient requests, even if resource allocation is not an issue, should be provided. If that was the case, what patients want would always determine the treatment they are entitled to.

Lastly, the court noted that there were no Charter arguments made in this case. Section 7 of the Charter (life, liberty and security of the person), s. 2(a) (freedom of religion) and s. 15 (equality) are all possible provisions that could support entitlements to care under certain circumstances. The trial judge in Rasouli held that the plaintiff had failed to prove that the Charter applied to physicians’ decisions and therefore the argument was not addressed on its merits. How the Charter might play out has been left to another day.

What seems clear is that while some questions were answered by the court’s decision, there are many more issues to be grappled with in end-of-life decisions.

In my own view, end-of-life decisions are unique and require specific thought and solutions, taking into account a number of competing interests not unlike the best interest criteria in the HCCA but expanded to also include ethical and legal duties and obligations of physicians, funding considerations and Charter issues.

The current state of the law does not do that and legislation specifically addressing these issues is required. The court has, in my view, stuffed a square peg in a round hole. It just doesn’t quite fit. Our current laws do not fully address end-of-life decisions. 

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