While the recent decision of the Supreme Court of Canada in Rasouli is of great import to patients and their families and physicians in Ontario, it does not provide the answers many hoped for in relation to similar issues in this province.
Almost three years to the day after a severe postoperative infection left Hassan Rasouli in a minimally vegetative state, the SCC has ruled that his physicians cannot remove his life support without the consent of his wife or that of the quasi-judicial Ontario Consent and Capacity Board (the "Board"). On October 18, in a 94 page 5-2 split decision, the SCC held that because Mr. Rasouli had not expressed any prior wishes as to what should happen in these circumstances, his physicians required his wife's consent as his substitute decision maker ("SDM") under the Ontario Health Care Consent Act ("HCCA") before withdrawing life support and providing him with palliative care.
The Court also held that:
- medical "treatment" and "health related purpose" as defined under the Ontario legislation are not limited to procedures which are of a medical benefit in the view of the patient's medical caregivers. The Court gave these terms a very broad interpretation;
- withdrawal of life support qualifies as "treatment" in the same legislation and thus requires consent, but this does not mean that consent is required under the HCCA for withdrawal of other medical services or in other medical contexts. Therefore while "treatment" is not limited to positive acts, not all withdrawals of medical services will be "treatment" requiring consent. There was no further guidance on this issue; and
- a physician must respect the decision of the patient, of the SDM or of the Board despite the ethical dilemmas they may consider they are in regarding end of life care and what they believe to be in the best interests of the patient. A physician will not be held liable for complying with the direction of the Board any more than he or she would be if they were directed to do something by a court.
Although the BC health care consent legislation is very similar to that in Ontario it is not identical and there is no equivalent consent board in this province. A challenge brought by a family here would stand to be determined in court by the common law. Under the common law, courts have generally been reluctant to require physicians to undertake or continue treatments they believe to be medically futile or not in the patient's best interests.
In the Rasouli case, there was no discussion (as there may have to be in a future case), of the implications of the decision for the allocation of scarce public resources. Mr. Rasouli's situation also differs from the situation in the Carter case, in which our Court of Appeal recently held that a person with the requisite mental capacity to make treatment decisions but without physical capacity could not legally rely on a doctor's assistance to end his or her life. The Plaintiffs in that case have recently indicated they will pursue an appeal to the SCC.
Finally, there is another case in BC, currently set to be heard in by the BC Supreme Court commencing December 17, which will test, among other issues, whether the offering of food by spoon to a patient with advanced dementia falls within the definition of "health care" in the BC legislation with consequential requirements for consent and recourse to advance directives or is simply part of "basic care". We are representing the health authority in that case and will report later on the outcome.
New Regulation Requires Reporting of Adverse Events
The Hospital Act Regulation B.C.Reg.121/97 is amended effective December 1, 2013 to require that serious adverse events (unrelated to underlying medical conditions) that take place in a hospital or private hospital which were the likely cause of or significantly contributed to the death or severe harm of a patient must now be reported immediately to the Minister of Health in the form and manner specified by the Minister. The administrator of a hospital and the licensee of a private hospital have this reporting responsibility.
"Severe harm" is defined as one that on a permanent or long-term basis interferes with a patient's functional abilities or quality of life and causes pain or disfigurement, requires major or emergency medical treatment or shortens life expectancy.
Copies of these reports are also required to be maintained in the hospital records as 'secondary documents" under s.13 of the Regulation.
One can foresee difficulty in implementing this requirement in that in many cases the likely cause of a patient's problem is not immediately clear while in other cases the consequences of an adverse event and their likely duration and severity will not be clear for some time. This may well result in either over-reporting of events that subsequent investigation will determine did not meet the criteria or under-reporting of events in which the cause is not determined for some time.
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