The Rasouli Case and Why It Matters - One Family's Battle For the Right to Consent

Yesterday, newspapers in Canada announced an important Supreme Court ruling for caregivers and their families.  At issue was whether or not physicians had the unilateral right to withdraw life support from a patient on the basis that to continue life support was a) futile and b) that the withdrawal of life support did not constitute 'treatment' and therefore did not require consent from the family.  The physicians in this case are neurologists at Toronto's Sunnybrook Hospital.  The patient in question is Hassan Rasouli, represented by his wife and daughter.  You can read about this case HERE. 

The outcome of this case has important implications for people with disabilities, the elderly and their caregivers.  In fact, interveners in the case consisted of the Consent and Capacity Board, the Euthanasia Prevention Coalition, the Canadian Critical Care Society, the Canadian Association of Critical Care Nurses, the Advocacy Centre for the Elderly, ARCH Disability Law Centre, the Mental Health Legal Committee, HIV & AIDS Legal Clinic Ontario and the Evangelical Fellowship of Canada.  

Reading about this sad and difficult case reminded me of something I wrote for Al Etmanski's blog two years ago - "What Are You Skating Towards" in which I was asked to identify a societal trend affecting caregivers.  Here is what I wrote:

Over the last year, I have observed a pernicious trend toward labelling some people as unworthy of continued care. In 2012, I will be skating defensively toward it. Thanks to information technology, I have many friends all over the world who are also parents of children with disabilities. One family, from Australia, I have known ‘virtually’ for many years - their son has developmental disabilities, is medically complex and has managed to survive over 77 hospitalizations in his 23 years of life. This year, the professional advisory committee at their hospital took a unilateral decision that there would be no more ICU hospitalizations or resuscitation measures because these would ‘not be in the best interest of the patient’ and furthermore, they would be ‘futile’. It was my guess that a meeting of hospital administrators had taken place that basically placed a cap on the public funds that one individual could or should consume in a lifetime - especially if that individual had developmental disabilities.

Of course one can never know whether the financial burden of keeping Mr. Rasouli alive at taxpayers' expense played into this case, but there is no denying that had the Supreme Court decision gone the other way, money could motivate the shutting down of life-sustaining treatment without family consent because a diminished life was deemed "futile" by physicians. 

Here is what the Supreme Court justices wrote in their decision: 

[34]                          The physicians argue that treatment under the HCCA is limited to what the attending physician or caregiver deems to be of medical benefit to the patient (in other words, what is medically indicated).  Mr. Rasouli’s physicians have concluded that life support no longer offers a medical benefit, despite keeping him alive, given his unconscious state and the extreme unlikelihood of his recovery.  It follows, they argue, that the provision of life support to Mr. Rasouli has ceased to be treatment under the HCCA, obviating the need for consent to its withdrawal. 

[35]                          The difficulty with the physicians’ argument is that it substitutes a physician-made criterion for treatment (medical benefit) for the criterion specified in the HCCA for consent (health-related purpose).  These concepts sound similar, but they are in reality different.

Note:  HCCA Stands for the Ontario Health Care Consent Act.

The Supreme Court decision related solely to the laws governing consent at end of life in Ontario.  The fact that the court did not go further in clarifying the national laws regarding family consent when 'turning off' life support disappointed some.  But, it's a start.  And because I live in Ontario, I will sleep a little more soundly tonight knowing that doctors will never be able to withdraw the life support of someone I love without my consent.