Most Canadians have read headlines about the recent Rasouli decision. Some headlines have described this case as a victory for family members (which is not entirely untrue); others have reported inaccurate conclusions about families now having a role in end-of-life decisions or being able to demand life support. In reality, the decision simply upheld the status quo and did not give families any more or less legal power than they have historically had. This blog describes the history of the case, the Supreme Court of Canada’s decision and what it means for families in Ontario in end-of-life situations.
History of the Case
Hassan Rasouli is a man who went into Sunnybrook Health Sciences Centre for a benign brain tumour but developed an infection that caused brain damage. He has been in a persistent vegetative state for three years and is being kept alive on a ventilator.
Once it was decided that there was no realistic hope of medical recovery, his physicians raised the option of withdrawing life support and providing only palliative care. The physicians said that to continue the life support would provide no medical benefit to Rasouli and may cause harm; they said he will ultimately die slowly from one of the many complications that result from being in a hospital bed all the time.
Rasouli’s family refused to provide consent to the withdrawal of treatment. In Ontario, a person who is legally incapable of making their own treatment decisions, as Rasouli was, has a substitute decision-maker (“SDM”). In this case, Rasouli’s wife was the SDM. All treatment decisions, subject to a few limited exceptions, require consent from the SDM.
Rasouli’s wife did not provide consent because she thought her husband would want to remain on life support. There are legal principles that apply to SDMs in terms of how they make decisions. The decision to consent or refuse to consent to treatment must first be based on how Rasouli would have decided if capable, if known, and otherwise in accordance with his best interests.
The physicians were somewhat stuck because it was unclear whether they even needed SDM consent to the withdrawal of the treatment. The law says that consent is required before treatment, but is withdrawing treatment considered treatment? Is removing treatment legally the same as giving treatment?
The physicians decided that withdrawal of treatment is different from administration of treatment and therefore they did not need consent. However, they knew there was a chance that a judge could interpret the law differently – this is always possible when the law is drafted ambiguously.
If the physicians were wrong the consequences could be significant. Treatment of a patient by a health practitioner without consent could lead to civil or criminal liability.
The physicians could have applied to the Consent and Capacity Board, a legal tribunal that decides whether a SDM is refusing consent in accordance with the legal principles that apply to him or her. The Consent and Capacity Board has the power to decide that a SDM is not acting in accordance with the law and order the SDM to consent to a proposed treatment. However, it was the physicians’ opinion that consent was not required in the first place.
Superior Court of Ontario
Rasouli’s wife applied on his behalf for a court order that would prevent the physicians from withdrawing life support. The physicians defended themselves by arguing that “they are not required to continue to provide treatment which is of no benefit to a patient and falls outside the standard of care.”The court agreed with Rasouli’s wife. It decided that the withdrawal of treatment is considered treatment and therefore requires consent from the SDM. The judge also said that this matter should be referred to the Consent and Capacity Board.
The physicians appealed the court’s decision to Ontario’s Court of Appeal. They argued that:
the decision…sets a dangerous precedent because it requires them to obtain the consent of patients before withholding or withdrawing treatment that they consider to be of no medical value… Manifestly, patients have the right to refuse treatment. They do not, however, have the right to insist on treatment that their doctor regards as medically ineffective or inappropriate.
The Court of Appeal agreed with the final decision of the trial judge. The Court decided that the plan to withdraw life support and provide palliative treatment constituted a “treatment package” that required consent.
The physicians appealed to the Supreme Court of Canada, Canada’s final court of appeal, and the last chance for the physicians to obtain a different decision.
Seven judges heard the case. Five judges agreed with the final decision of the two lower courts, but two judges did not.
Firstly, the majority of the Court agreed that the withdrawal of life support is “treatment” and therefore requires consent from Rasouli’s wife. The judges were particularly persuaded by the fact that withdrawal involves “physical interference with the patient’s body” and that the withdrawal would be followed by the administration of palliative care (which requires consent).
They also commented on the process that should be used to resolve end-of-life disputes between health practitioners and SDMs.
The majority of the Court decided that the system that has been in place nearly 20 years, in which such cases can go before the Consent and Capacity Board, has essentially been working just fine. The Board has a tremendous amount of experience dealing with end-of-life matters. Board decisions can also be reviewed by the courts if necessary. Further, the Board typically appoints counsel for the incapable person so that he or she has legal representation separate from the family (which is important because there are situations in which the family’s interests differ from those of the incapable person).
In other words, the majority wanted to maintain the status quo.
The 2 judges who disagreed with the majority of the Court would have decided that “[t]he definition of ‘treatment’ does not include the withdrawal or the withholding of treatment” and that “the court, and not the Board, is the appropriate forum for resolving any disputes between the doctors and the incapable patient’s substitute decision‑maker.”
What the Decision does NOT Mean for Families
Contrary to many news headlines…
This decision does not uphold the right of families to demand life support.
The decision does not mean there is a right to treatment at the end of life.
This decision does not mean that families can demand any treatment for their loved ones be administered.
This decision does not mean family members suddenly have a role in end-of-life decisions, as though they did not have an important role before.
This decision does not mean that life support cannot be withdrawn in this particular case.
This decision does not mean families always get to make the final decisions involving withdrawal of life support.
What the Decision Means for Families
The judgment essentially means that the decision to withdraw life support requires consent, and if physicians think consent being withheld means the SDM is not doing her job in accordance with the applicable legal principles, they can apply to the Consent and Capacity Board to determine whether she is making decisions in compliance with the law. If she is, her decision stands. If she is not, the Board can substitute its own decision for that of the SDM. This could mean life support is withdrawn even if the family wants it to be continued.
Part of the reason this decision has been widely cited as a victory for families is because of what didn’t happen. Had the balance of the judges been different, the outcome of the case could have been that families would have to apply to courts in end-of-life situations. Court is a time-consuming and expensive process. It would be a significant burden on family members acting as SDMs.
On the other hand, Consent and Capacity Board applications must be brought by the physicians. As well, Consent and Capacity Board hearings can happen very quickly and decisions are typically rendered the day following the hearing. In end-of-life situations, there is no question that speedy decisions offer a huge benefit. In addition, Consent and Capacity Board hearings are much more informal and less adversarial than court proceedings, which is very important given the relationship between the parties (the family and the health practitioners).
The Consent and Capacity Board process existed before the Rasouli decision and will continue after the Rasouli decision. It is not a perfect solution (as acknowledged by the Court of Appeal), but for most families it is better than going to court.
From a symbolic perspective, many families and organizations see this case as a “win”. Again, this is likely because the Court confirmed that in this situation consent is required to withdraw life support and the family could therefore not be removed from the decision-making process.
From an educational and advance care planning perspective, this case has brought attention to the importance of advance directives and the role of the Consent and Capacity Board. It has shed light on the Ontario system, which other provinces may turn to as a model in light of the decision. And it has no doubt reminded health practitioners of the importance of obtaining consent before withdrawing treatment (or if there is uncertainty about how to proceed, to go to the Consent and Capacity Board).
What the Decision Means for Individuals
The Rasouli case is an important reminder for all individuals to reflect upon their end-of-life wishes and to communicate those wishes to loved ones, preferably in writing. Powers of Attorney for Personal Care are an excellent tool for this purpose.
Sadly, individuals like Rasouli face end-of-life situations with no advance warning. Tragedies occur without notice and without time to consider and document one’s wishes. It is therefore important for all individuals to have up-to-date Powers of Attorney for Personal Care. A clear and comprehensive Power of Attorney for Personal Care benefits both individuals and their families: it can ensure your wishes are followed, and it can save families heartache, uncertainty and money.
Disclaimer: Consent is a very complex topic and this blog canvasses only some of the relevant information. DO NOT RELY ON THIS BLOG TO MAKE ANY LEGAL DECISIONS. Please consult with your legal advisor or contact Lisa Feldstein Law Office to find out how the law applies to your particular circumstance.
Lisa Feldstein Law Office provides advice in matters involving end-of-life care, consent and capacity. We assist families who experience disagreement, among themselves or with health practitioners, relating to substitute decision-making or powers of attorney. We also draft Powers of Attorney to ensure your wishes are clear and your family has peace of mind.
 Note that this is an over-simplified explanation of how substitute decision-makers must make treatment decisions. Please see section 21 of the Health Care Consent Act.
through a difficult time?