There is no doubt that receiving life support is "treatment" as defined by Ontario's Health Care Consent Act, (the "HCCA") and it requires consent. What about the withdrawal of life support? Is the withdrawal of life support "treatment", a medical procedure necessitating consent?
In a recent case, Cuthbertson v. Rasouli1, the Supreme Court of Canada, ruled in a split 5-2 decision that the withdrawal of life support is "treatment" for purposes of the HCCA and therefore, consent is required.
Mr. Rasouli's physicians determined Mr. Rasouli should be removed from life support as continued life support (on which he had been since 2010) would be futile and may even be harmful. Before becoming unable to make decisions, Mr. Rasouli had not expressed whether or not he wished to be kept on life support. Therefore, the physicians were obliged to seek Mr. Rasouli's substitute decision maker's consent to the withdrawal. The substitute decision maker, Mr. Rasouli's spouse, Ms. Salasel, was required to consider whether the removal of life support (and inevitable palliative care and the eventual death that followed) was in Mr. Rasouli's best interest in granting consent. Ms. Salasel did not consent and she applied to the Ontario Superior Court of Justice for an order restraining the physicians from removing life support without her consent. The physicians cross-applied, arguing that consent is not required when in their medical opinion, continuing life support is futile. The Ontario Superior Court of Justice agreed with Ms. Salasel and so did the Ontario Court of Appeal. The physicians' appeal heard by the Supreme Court of Canada was dismissed. The highest court held that withdrawal of life support necessitated the patient's consent and the decision was ultimately, not one which, was to be left to physicians. However, this challenge came at a significant expense to the family since Mr. Rasouli did not recover his litigation costs.
What can we take away from Rasouli?
- Medical procedures with a risk of permanent incapacity, are procedures before which the patient should clarify his or her wishes with respect to life support.
- The patient, or a substitute decision maker (Eg. Guardian, Attorney for Personal Care), must consent to the withdrawal of life support.
- If the patient's wish to consent or not to consent is not made clear before the procedure, substitute decision makers should make efforts to understand the patient's beliefs about prolonging life through life support and take into account the patient's overall best interest.
- Unless the patient gives consent or if the patient is incapable, the substitute decision maker gives consent on the incapable patient's behalf, a health practitioner cannot administer a proposed treatment. If the health practitioner is of the opinion that the patient is not capable or the health practitioner does not agree that continuing life support is in the best interest of the patient the physician's recourse is to apply to the Consent and Capacity Board. The Board will determine whether the patient has capacity to consent and if not capable, whether withholding consent is in the best interest of the patient as it pertains to the specific set of facts.
- There are means to prevent a dispute like the one which occurred in Rasouli from arising. The Rasouli case may have been resolved without protracted and expensive litigation had Mr. Rasouli's wish about continuing or withdrawing life support had been clearly expressed while he was capable.
- The difficult conversation about accepting and continuing life support, and other end of life decisions important to the individual needs to happen before an individual is no longer capable of making decisions, and most certainly before the individual undergoes treatment serious enough to warrant life support.
Estate lawyers assist clients in discussing difficult end of life decisions such as deciding whether or not life support should be withdrawn. For example, when a lawyer drafts a Power of Attorney for Personal Care, in some circumstances, he or she may include a clause related to specific end of life decision, including decisions about receiving and withdrawing life support. A lawyer would do this because it is much simpler (and cost effective) to refer to a clause included in a legal document executed by a capable person than to leave the decision to a substitute decision maker who may be acting on deductive reasoning alone. The Rasouli case reminds us that even the opinion about what is in the best interest of one's closest companion, such as a spouse, does not necessarily inoculate an estate against protracted litigation. An express, written, specific instruction, properly executed, would be much more likely to clarify an individual's intention.
Have the difficult conversation and seek out legal advice that will make the conversation more meaningful in the long-run.
1 2013 SCC 53
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