End-of-life medical decision-making is complex and is further complicated by the uncertainty of whether physicians require patient consent to withdraw or withhold life-sustaining treatment a physician deems inappropriate. In the recent decision of Cuthbertson v. Rasouli, (1) the Supreme Court of Canada clarified the state of the law in Ontario, holding that pursuant to the Ontario Health Care Consent Act, 1996 (2) ("HCCA"), patient consent is required for the withdrawal of life support regardless of whether the physician providing such treatment believes it is inappropriate or futile. (3) Chief Justice McLachlin, speaking for a majority of the Court in Rasouli, found that the HCCA solely governed the issue of whether patient consent was required for the withdrawal of life-sustaining treatment. (4)
This article aims to elucidate the effect the decision in Rasouli will have in Alberta by comparing the HCA with relevant Alberta legislation, namely the Personal Directives Act (5) ("PDA"). The author concludes that, unlike the HCCA, the PDA is silent on the issue of whether patient consent is required for the withdrawal of life-sustaining treatment that a physician deems to he inappropriate and as a result, in Alberta, one must look to the common law for the answer to this question. The decision in Rasouli will therefore only impact the law in Alberta in so far as it provides guidance as to the common law.
End-of-life medical decision-making has been complicated by advances in life-sustaining treatment technology including mechanical ventilation and artificial nutrition and hydration. Mechanical ventilators were originally developed for use during surgical operations and it was only in the 1960s that intravenous feeding and mechanical ventilators began to be widely used outside of operating and recovery rooms. (6) This expanded use of life support technology permits patients in minimally conscious or persistent vegetative states to be kept alive for extended periods of time. (7)
One of the first legal issues that arose in response to the prolific use of life-sustaining treatment was whether a patient, or a representative of the patient, (8) could refuse to consent to such treatment or have such treatment withdrawn. The ability of a patient to refuse medical treatment has long been recognized as stemming from the tort of battery at common law. (9) However, as the common law did not recognize a right to appoint an agent to make medical decisions and the legal effect of a patient's written instructions in advance of their incompetency is uncertain under the common law, there was no clear mechanism for patients to exercise their right to refuse medical treatment once incompetent. (10)
All Canadian provinces and territories, with the exception of Nunavut, have enacted legislation creating mechanisms for patients to control their own medical treatment in the event of incompetency. (11) Two types of mechanisms exist through which an individual can control their treatment. One option is for an individual to execute written instructions (a "directive") that will govern their future treatment in the event they become unable to make such decisions. Another mechanism through which an individual may retain some control over their treatment is to appoint an agent (12) to make treatment decisions on the individual's behalf.
Legislation that gives legal effect to advance directives and substitute decision-makers permits individuals to stipulate treatment they do not want, in advance of incompetency. Such legislation may, potentially permit individuals to demand that treatment is continued, particularly where the treatment at issue is life sustaining. Multiple cases have come before the courts where patients' agents or family members have requested the continuation of life-sustaining treatment despite the opposition of the treating physician. (13) The only of these cases to reach the Supreme Court of Canada was that of Rasouli. (14)
In Rasouli, the Supreme Court held that consent was required for the withdrawal of life sustaining treatment in Ontario pursuant to the HCCA. (15) At the time of the hearing, Mr. Rasouli was unconscious and was being kept alive by life support including mechanical ventilation and artificial nutrition and hydration. (16) Mr. Rasouli's physicians sought to remove this life support on the basis that "all appropriate treatments for his condition had been exhausted, and that there was no realistic hope of medical recovery". (17) Mr. Rasouli's wife, who was authorized under the HCCA to make medical decisions on his behalf, refused to consent to the removal of life support. (18) The issue before the Court was whether the physicians required the consent of Mr. Rasouli's wife in order to withdraw treatment that the physicians believed to be inappropriate and futile. (19) The Court held that this issue was governed by the HCCA, and not the common law. (20) Section 10 of the HCCA states that treatment cannot be provided without consent and "treatment" is defined as "... anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose ..." The Court held that the withdrawal of life support involves "a series of acts that serve health-related purposes" and therefore requires consent the same as any other treatment and that this finding was supported by the express objectives of the HCCA. (21)
The Alberta Context
In Alberta, individuals are able to provide advance instructions regarding their future medical treatment through mechanisms set out in the PDA. The PDA does not overrule the common law of consent to treatment in the absence of a directive, and is therefore narrower in scope compared to the HCCA. (22) The issue has been raised as to whether the PDA mandates that clear instructions in directives be followed regardless of the treating physician's opinion. In Sweiss v. Alberta Health Services, Justice Ouelette, in obiter dicta, posited that pursuant to s. 19(1) of the PDA, instructions contained in a directive may be determinative of the treatment to be provided to a patient regardless of whether they conflicted with a physician's recommended medical treatment. (23)
Section 19(1) of the PDA sets out circumstances where instructions in a directive, or instructions of an agent appointed in a directive, must be followed. Pursuant to s. 19(1), directive or agent instructions must be followed:
if a service provider intends to provide personal
services with respect to a personal matter to a maker
who lacks capacity and a personal directive is in
effect... [emphasis added] (24)
Service provider is defined in s. 1 (n) of the PDA as follows:
"service provider" means a person who carries on a business
or profession that provides or who is employed to provide
a personal service to an individual and when providing the
service requires a personal decision from the individual
before providing the service... [emphasis added] (25)
A physician withdrawing life support would therefore only have to follow directive instructions if withdrawal of life support is a "personal service" as defined in s. 1(m) of the PDA, and the withdrawal requires a personal decision from the patient before the life support is withdrawn.
Is the withdrawal of life support a personal service"
The decision in Rasouli provides some guidance to the determination of whether the withdrawal of life support will meet the definition of "personal service" in the PDA. Pursuant to the PDA, a "personal service" includes services provided with respect to health care. (26) "Health care" is defined as "any examination, procedure, service or treatment that is done for a therapeutic, preventative, palliative, diagnostic or other health related purpose". (27)
In Rasouli, the Supreme Court held that the withdrawal of life support served a "health-related purpose" and that health related purposes were not limited to what the attending physician considers to be medically beneficial or medically indicated. (28) Following this reasoning, it is likely that the withdrawal of life support would also be found to meet the definition of "health related purpose" in the PDA and thus be considered a personal service under the Act. It is worthy of note that in reaching the decision that withdrawal of life support was for a health related purpose the Supreme Court relied heavily on the express objectives of the HCCA including the promotion of patient autonomy. (29) The PDA does not expressly include the promotion of patient autonomy in its objectives, thus there is a potential for "health related purpose" to be interpreted in a different way than it was in the HCCA.
Does a physician require a personal decision from the patient before withdrawing life support?
Regardless of whether the withdrawal of life-sustaining treatment meets the definition of personal service, a physician need only follow directive instructions where the provision of "service requires a personal decision from the individual before providing the service". (30) A personal decision includes the giving of consent to health care. (31) Therefore, a physician only needs to follow directive instructions when the physician would otherwise need consent prior to performing the service. The PDA is silent on the issue of whether a physician needs to obtain consent for specific services, therefore, we must look to the common law to fill in this statutory gap and determine whether consent is required for the withdrawal of life-sustaining treatment that a physician deems to be inappropriate or futile.
Interpreting the PDA as incorporating the common law with respect to whether a physician is required to obtain consent for treatment the physician holds to be inappropriate is consistent with statements made by the sponsoring member of the Legislature when the Act was debated. (32) Carol Haley stated as follows:
Similarly, Bill 35 does not force a service provider to
provide services to a maker. If a directive provides
clear instructions that the maker wants or doesn't
want a specific service, a service provider has
two options: one, to follow the clear and relevant
instructions or, two, indicate that he or she is not
prepared to follow the instructions and refer the maker
to another service provider. This is now an option
and will continue to be an option for service providers
dealing with any patient with or without capacity. (33)
The PDA can thus be distinguished from the HCCA on the basis that the HCA overrides the common law requiring that consent be given prior to the withdrawal of life support regardless of the physician's opinion on the matter, whereas the PDA looks to the common law to answer this same question.
The common law is unsettled on the issue of whether patient consent is required for the withdrawal of life-sustaining treatment that a physician deems inappropriate or futile. In Rasouli, Chief Justice McLachlin based her decision solely on the statutory interpretation of the HCCA, but nevertheless indicated that the question of whether consent is required for the withdrawal of life support is unsettled. (34) Conversely, Justice Karakatsanis, writing for the dissent, held that "there is no clear right ... under the common law for a patient to insist on a particular treatment if the doctor is not prepared to provide or continue to provide it". (35)
The question of whether physicians require consent to withdraw life-sustaining treatment that in the physician's opinion is inappropriate or futile will be addressed differently in Alberta and Ontario, potentially leading to divergent outcomes. In Ontario, the HCCA alone governs, and in any event, requires patient consent for the withdrawal of life support regardless of the physician's opinion on the matter. Conversely, in Alberta the common law will apply to the issue of whether patient consent is required for the withdrawal of life-sustaining treatment a physician deems to be inappropriate.
(1.) Cuthbertson v Rasouli, 2013 SCC 53 [Rasouli].
(2.) Health Care Consent Act, 1996, SO 1996, c 2, Schedule A [HCCA].
(3.) Rasouli, supra note 1 at paras 45, 51.
(4.) Ibid at para 4.
(5.) RSA 2000, c P-6 [PDA].
(6.) Joan M Gilmour, "Withholding and Withdrawing Life Support from Adults at Common Law" (1993) 31 Osgoode Hall LJ 473 at 474.
(7.) Ibid at 475-6.
8 Hereinafter the patient, or their representative will be referred to as "a" or "the" "patient".
9 Lorne Rozovsky, The Canadian Law of Consent to Treatment, 3d ed (Markham: LexisNexis Canada, 2003) at 5; Ma lette v. Shulman (1990) , 72 OR (2d) 417 at para 17, 37 OAC 281 [Malette]. See also Starson v. Swayze, 2003 SCC 32 at para 76,  1 SCR 722, Major J (the perceived wisdom of a capable patient's decision to refuse treatment does not affect the patient's right to make such a decision). See generally Nancy B v. Hotel de Quebec (1992), 86 DLR (4[th]) 385 (QB SC) (a competent patient was successful in obtaining an injunction that allowed her request to remove a life-sustaining ventilator and prevent the staff and administration of the hospital from administering treatment without her consent).
10 But see Malette, supra note 9 at para 30, 36-37 (the court gave effect to the patient's advance explicit instruction contained on a wallet card that stated her desire to decline blood transfusions).
11 PDA, supra note 5 (s 7(1) allows individuals to provide written instructions; s 7(3) permits an individual to designate an agent to make decisions on their behalf); Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 19 (permits the making of an advance directive with instructions giving or refusing consent to health care); Representation Agreement Act, RSBC 1996, c 405, s 7 (permits an adult to make representation agreement naming a representative to make health care decisions); The Health Care Directives Act, SM 1992, c 23, s 5 (directive may state the person's health care wishes or appoint a proxy decision maker for health care purposes, or both); Infirm Persons Act, RSNB 1973, c 1-8, s 40 (may appoint a power of attorney to make personal care decisions that may encompass health care decisions, no authorization for a written directive); Advance Health Care Directives Act, SN 1995, c A-4.1, s 2(a) (maker may set out instructions on health care or appoint a substitute decision maker); Personal Directives Act, SNWT 2005, c 16, s 5 (may provide written instructions or designate an agent); Personal Directives Act, SNS 2008, c 8, s 3(1) (may provide instructions or authorize a delegate to make decisions on the maker's behalf); HCCA, supra note 2, s 5 (may express wishes on treatment in a power of attorney or other written form); Consent to Treatment and Health Care Directives Act, SPEI 1996, c 10 s 20 (may execute directive directing health care or treatment or appoint a proxy); Civil Code of Quebec, SQ 1991, c 64, Arts 10-25; The Health Care Directives and Substitute Health Care Decision Makers Act, SS 1997, c H-0.001 (may specify instructions in directive or appoint a proxy); Care Consent Act, SY 2003, c 21, Schedule B, ss 12(1), 29, (directive can contain information and wishes regarding the substitute giving or refusing of care, and appoint a proxy to make care decisions).
(12.) Also referred to as a proxy or substitute decision maker, see Ibid.
(13.) Rasouli, supra note 1 (wife sought order restraining physicians from withdrawing life support); Sweiss v. Alberta Health Services, 2009 Al3QB 691 at para 9, 483 A.R. 340 [Sweiss cite to ABQB] (application for injunction to prevent imposition of DNR order and removal of mechanical ventilation); 1HV (Re), 2008 ABQB 250 at paras 8, 28, 449 A.R. 211 (daughter applied for injunction to prevent withdrawal of treatment); Golubchu k v. Salvation Army Grace General Hospital, 2008 MBQB 49 at para 1, 227 Man R (2d) 274 (application for injunction restraining hospital from removing the patient from life support, ventilation, tube feeding and medication); Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318 at para 1 (petition for order compelling hospital and physicians to continue life support).
(14.) Rasouli, supra note I.
(15.) Ibid at paras 45, 51.
(16.) Ibid at para 6.
(18.) Ibid at para 7.
(19.) Ibid at paras 15, 34.
(20.) Ibid at para 4.
(21.) Mid at paras 45, 50-51,68.
(22.) Not only does the HCCA provide mechanisms for individuals to give advance instructions, but it also overrules the common law of consent to medical treatment by stipulating that medical treatment cannot be administered without consent see HCCA, supra note 2, s 10. See also PDA, s 19 (setting out when a service provider must follow instructions in a personal directive).
(23.) Sweiss, supra note 13 at para. 48. ("Given the mandatory wording of s. 19(1) of the Personal Directives Act, it appears that where a personal directive with clear instructions conflicts with recommended medical treatment, the wishes, directions and instructions of the patient will prevail. ... Thus, as the law currently stands, it appears that if a personal directive directs that all possible measures be taken to keep the patient alive, whether or not he is brain dead or no longer breathing on his own, the direction must be followed despite the fact that life support may be required for an indefinite period of time."
(24.) PDA, supra note 5 s 19(1) [emphasis added].
(25.) Ibid s 1(n) [emphasis added].
(26.) Ibid s 1(m) ("personal service" means a service provided with respect to a personal matter"); Ibid s 1(1) (""personal matter" means (i) health care ***).
(27.) Mid s 1 (f) [emphasis added].
(28.) Rasouli, supra note 1 at paras 39, 45.
(29.) Ibid at paras 45, 51.
(30.) PDA, supra note 5 s 1(n).
(31.) Ibid s 1(j) ("personal decision" means a decision that relates to a personal matter and includes, without limitation, the giving of consent, the refusal to give consent or the withdrawal of consent to health care").
(32.) Alberta, Legislative Assembly, Alberta Hansard, 23rd Leg, 4th Sess (9 May 1996) at 1758 (Carol Haley).
(34.) Rasouli, supra note I at paras 4, 53.
(35.) Rasouli, supra note 1 at para 136, Karakatsanis J, dissenting.
Kristy Williams is a visiting scholar at the University of Texas Medical Branch, Institute for Medical Humanities. She received a UM in health law from the University of Houston, a JD from the University of Calgary, and a PhD in neuroscience from Memorial University of Newfoundland.