In a recent landmark decision, relating broadly to the area of
Elder Law, the Supreme Court of Canada held that two Ontario
physicians could not unilaterally withdraw life support for a
patient who they believe is in a persistent vegetative state with
no realistic hope for recovery. You should note, however,
that because the case involved Ontario legislation, the decision is
most narrowly applicable to Ontario. In fact, the Court went
out of its way to state that this case does not resolve the debate
over whether a next-of-kin's decision should trump a
physician's interest in not being forced to provide
non-beneficial medical treatment. Nevertheless, the reasoning
and discussion reveals that the majority of the Court is clearly
inclined to give families greater control over life-ending medical
decisions, which could potentially have an impact on cases dealing
with the tension between physicians and families when their loved
ones are on life support.
Cuthbertson v. Rasouli , 2013 SCC 53 concerned
a patient who developed an infection that caused severe brain
damage following a surgery to remove a benign brain tumour.
As a result, the patient has been unconscious since October
2010. The appellant physicians argued that: (1) life support
that is not "medically indicated" is not
"treatment" under the Ontario legislation; (2) in any
case, the withdrawal of treatment does not itself constitute
"treatment" under the Ontario legislation; and (3)
requiring consent for the withdrawal of life support will place
them in an untenable ethical position.
The majority of the Court rejected these arguments. The
Court held that "treatment" was broadly defined under the
Ontario legislation and should not be confined to procedures that
are of medical benefit in the view of the patient's
physicians. Similarly, the Court held that the definition of
"treatment" was broad enough to extend to the withdrawal
of life support in the circumstances of this case. While the
Court acknowledged physicians may feel that their legal obligations
not to withdraw life support are in tension with their professional
or personal ethics, the Court reasoned that such tensions are
inherent to medical practice and that no legal principle can avoid
every ethical dilemma.
In Ontario, the Health Care Consent Act guides physicians
through these difficult ethical dilemmas. If the substitute
decision-maker refuses consent to withdraw life support based on a
patient's prior wish, the physician may seek direction from the
Consent and Capacity Board on whether the wish is applicable to the
patient's current circumstances or request permission for the
substitute decision-maker to depart from the wish. Where
there is no applicable prior wish, the substitute decision-maker
must act in the best interests of the patient. If the
physician feels that the substitute decision-maker has not done so,
he or she can challenge the decision before the Consent and
Since British Columbia does not have an independent dispute
resolution board similar to that of Ontario, disputes between
families and physicians over consent regarding withdrawal of life
support should be resolved by the Supreme Court of British Columbia
in accordance with the Health Care (Consent) and Care Facility (Admission)
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guide to the subject matter. Specialist advice should be sought
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