Dykeman on impact of landmark SCC case

It doesn't appear as if a landmark Supreme Court case –Cuthbertson v. Rasouli – has specifically led to a "marked" increase in end-of-life cases at the Consent and Capacity Board over the last year, Toronto health lawyer Mary Jane Dykeman writes in the Lawyers Weekly.

"In perusing published decisions of the Consent and Capacity Board, only five refer to Rasouli, and just two of these occurred after the Supreme Court rendered its decision (only one of the two was an end-of-life decision)," she says.

Dykeman, partner at Dykeman Dewhirst O'Brien LLP, also says however, it should be acknowledged that some cases do not reach the board but are resolved at the bedside and that hospital legal counsel are periodically asked for advice about withdrawal of treatment at end of life. The Rasouli case is now determinative, she says.

"Somewhat more challenging are the questions around withholding of treatment, facts very different than in Rasouli," she says. "While arguably a physician may simply choose not to propose a treatment he or she considers futile, withholding of treatment that has legitimately been part of a “plan of treatment” under the act would appear to require consent."

Dykeman's article provides thoughtful analysis on the impact of Rasouli since it was handed down in October 2013. She also notes that end-of-life decisions are an increasingly challenging area of law.

In Rasouli, the high court found that withdrawal of life support is considered “treatment” under the Health Care Consent Act for which consent is required. Hassan Rasouli underwent surgery in 2010 for a benign brain tumour and developed bacterial meningitis. He was initially determined to be in a persistent vegetative state and was later upgraded to “minimally conscious,” she explains. Rasouli’s wife – and substitute decision-maker – took her husband’s physicians to court after learning of their plan to withdraw the ventilator, says the article.

Ultimately, the Supreme Court reinforced the Ontario Court of Appeal’s characterization of a treatment package,” in that withdrawal of life-sustaining equipment such as a ventilator is “treatment” based on the broad manner in which the act defines that term, i.e. anything done for a “health-related purpose,” says Dykeman.

Further, if a physician disagrees with a patient’s substitute decision-maker, treatment may not be withdrawn but the remedy is to apply to the Consent and Capacity Board, a specialized tribunal under the act, she explains.

Dykeman points to a case before Ontario’s Health Professions Appeal and Review Board, EGJW v. MGC, whereby counsel were offered an opportunity to comment on the applicability of Rasouli.

"There was disagreement on this issue, although the HPARB accepted the argument that consent was required," she says. "In EGJW, the complaint centres on a physician unilaterally changing what was referred to as a “full code” to a “do not resuscitate” or “DNR order” without first seeking consent of the patient’s substitute decision-maker. Similar to the court in Rasouli, the HPARB directed that despite the physician’s views on medical futility, the available mechanism to deal with a plan of treatment already discussed with the substitute decision-maker is the Consent and Capacity Board."

She also notes a couple of cases, even where brain death has been clinically confirmed, substitute decision-makers suggested that Rasouli applies to their situation and consent is required to withdraw life support.

"It is not. Rasouli was in a persistent vegetative state, and was not declared brain-dead. Such cases are likely rare, but it shows some awareness of the Rasouli case, albeit misapplied," she says. "They have resolved with further supports to the substitute decision-makers, and a forum in which to gently put forward the clinical evidence and state of the law post-Rasouli."

Dykeman points to initiatives underway in Canada to address the issues around health-care consent and advance-care planning. The Canadian Medical Association conducted town hall meetings on the issues and its conclusions and a call to action focused on discussing end-of-life wishes with family and loved ones, and preparation of advance directives.

The Law Commission of Ontario last January published Health Care Consent and Advance Care Planning in Ontario, written by Dykeman, and the Advocacy Centre for the Elderly (J. Wahl, M.J. Dykeman & B. Gray), with commentary on the Rasouli case.

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