Is difficult to conceive of a more legally and ethically challenging circumstance than a dispute between family members and a health care team regarding the withdrawal or withholding of treatment at the end of life. On one hand are families who are emotionally devastated and trying to come to terms with the condition of their loved one. On the other is a health care team struggling to balance the wishes of family members with their ethical and legal obligations to do no harm and to act in the best interests of their patient. While the patient's family in these situations is clearly suffering, health care providers also experience distress when they are pressured to provide treatment they deem to be futile, harmful or otherwise not clinically indicated. This paper will briefly summarize the main aspects of the recent Supreme Court of Canada decision in Cuthbertson v Rasouli (1) ( " Rasouli " ) and will consider the impact of the decision both inside and outside of Ontario.
The Rasouli Decision
In October 2010, Hassan Rasouli was admitted to the Sunnybrook Health Science Centre in Toronto, Ontario for the removal of a benign brain tumor. He subsequently developed an infection causing severe brain damage and was placed on life support. Rasouli's health care team, understanding him to he in a persistent vegetative state with no real chance of recovering, sought to remove artificial life support and implement palliative care. The care team believed that further artificial life support provided no medical benefit and advised Rasouli's wife, Ms. Salasel, that discontinuing life support and providing palliative care was the best option available.
Ms. Salasel, as Mr. Rasouli's substitute decision maker ( "SDM" ), disagreed with this assessment and applied to the Ontario Supreme Court for an order preventing the physicians from withdrawing life sustaining treatment without her consent, citing the provisions of Ontario's Health Care Consent Act ("HCCA" ). (2) Rasouli's health team cross-applied seeking a ruling that consent was not required to withdraw life support when the treatment being provided was futile. The trial judge granted Ms. Salasel's application holding that her consent was required for the withdrawal of care and if she refused, the physicians were required to apply to the Consent and Capacity Board ( " CCB " ). The Ontario Court of Appeal subsequently upheld this decision. (3)
Two questions were at issue at the Supreme Court of Canada. The first was whether withdrawal of an intervention no longer providing a medical benefit was considered "treatment" under s. 10(1) of the HCCA. Key to this issue is the HCCA's definition of "treatment" which reads in part:
Treatment means 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 or community
treatment plan. (4)
lithe HCCA was found not to apply, the second question was whether the common law permitted the removal of life support without Ms. Salasel's consent. Given the breadth of the definition of "treatment" under the HCCA, and how close the administration of palliative care was linked to the withdrawal of life support, it was found that for the purposes of the HCCA, the withdrawal of treatment did constitute "treatment" and consent was required. The Court held that in this case, with Ms. Salasel's refusal to consent, the physicians were required to apply to the CCB. As the Court stated, " it will be for the Board to determine whether Ms. Salasel's refusal to provide consent to the withdrawal of life support was in Mr. Rasouli's best interests, within the meaning of s. 21(2) of the HCCA" . (5) According to the Court, while questions involving end of life care may indeed place physicians in difficult ethical situations, this does not alter the burdens placed on them by the HCCA. …