The Rasouli case: Who has the right to withdraw Life-Sustaining Treatment in Canada?

On May 17, the Supreme Court of Canada ruled against a motion from the Rasouli family asking the Supreme Court to Quash the Rasouli case, a case that seeks to determine whether or not physicians have the right to unilaterally withdraw life-sustaining treatment in Canada.

Last year the Supreme Court of Canada decided to hear the Rasouli case, even though a three judge panel on the Ontario Court of Appeal unanimously decided that doctors must obtain consent before withdrawing life-sustaining treatment.

The Supreme Court decided to hear the Rasouli case inspite of the fact that new evidence proves that Hassan Rasouli, the 60 year-old retired engineer who obtained a significant brain impairment from a post-surgery infection in October 2010, is not in a Persistent Vegetative State, a condition that the doctors at Sunnybrook hospital had based their case upon.

The Euthanasia Prevention Coalition successfully intervened in the Rasouli case at the Ontario Court of Appeal and has sought intervener standing in the case at the Supreme Court of Canada.

Link to an article about the Rasouli case.

The Rasouli family.

Some media reports have misinterpreted the Rasouli case by stating that this case will determine whether or not a family can demand medical treatment that doctors consider to be futile. Patients and families do not have the right to demand medical treatment.

The Rasouli case will determine whether or not doctors have the right withdraw life-sustaining treatment that the doctor considers futile, without the consent of the family or the patient. Based on the definition of medical treatment this decision is not limited to ventilator cases. The Supreme Court of Canada decision will extend to issues related to fluids and food, anti-biotics and other life-sustaining treatments.

The Rasouli decision will need to define futility. The Ontario Court of Appeal unanimously decided that medical treatment that is physiologically futile can be withdrawn from a patient without consent. If a doctors is providing treatment that is of no benefit to the patient then it can be withdrawn without consent. The Ontario Court of Appeal decision also found that Hassan Rasouli is benefiting from the ventilator. The ventilator is not futile because it is enabling Mr. Rasouli to breath, which is what the ventilator is designed to do. Therefore the ventilator is not physiologically futile.

The problem with the definition of futility is that the doctors seem to have defined Mr. Rasouli as futile, therefore no level of treatment is considered to be of benefit to him.

Some media reports have suggested that if the Supreme Court of Canada decides that doctors must obtain consent before withdrawing life-sustaining treatment that there will be a large number of expensive cases in an already cash-strapped medical system. The fact is that the Consent to Treatment Act in Ontario has existed for more than 15 years and in that time very few disputes between patients (family or substitute decision maker) and physicians were not resolved. The current system in Ontario is working reasonably well.

The Rasouli case is important.
If doctors are given the unilateral right to withdraw life-sustaining treatment without the consent of the family or the patient, then doctors will become the sole decision makers of what is considered to be an acceptable quality of life. Doctors should not have the right to determine who lives and who dies based on personal and subjective beliefs related to the quality of life of another person?

Issues of equality are at stake. If doctor are given the unilateral right to withdraw life-sustaining treatment without the consent of the family or the patient, then doctors will gain the right to impose their religious or cultural perspectives upon their patients.

Doctors often make a wrong diagnosis. Decisions to withdraw life-sustaining treatment will be imposed on a family, like the Rasouli family, when the diagnosis was originally wrong. You can't bring a loved one back and in the case of Hassan Rasouli, he is not in a PVS state and he continues to improve.

The Supreme Court of Canada should have upheld the unanimous Ontario Court of Appeal decision that was balanced and clearly protected the lives of people who are dependent on life-sustaining treatment while recognizing the that doctors can unilaterally withdraw physiologically futile treatment.

The best article I have read on this case was written by columnist Michele Mandel who wrote a personal article related to the Rasouli case entitled: Supreme Court to make a life and death decision that was published in the Toronto Sun on May 17. Mandel wrote:

Michele Mandel

When my grandmother had a devastating stroke and there was little doubt she was dying, the doctors coldly told my mom there was no hope and they’d like to remove her feeding tube. 

She was going to die anyway so why prolong it? And she was so old, already 96. Somehow they tried to argue that it would be kinder if she allowed her mom to starve to death. 

My mother, God bless her, refused to give her consent. To them, this white-haired great grandmother of 19 was just a dying body using up precious resources. But not to us. 

They didn’t care that she would squeeze our hand when we all gathered at her bedside, or that she tried to smile when my mom would feed her her favourite vanilla ice cream contrary to those doctors’ orders. Loved and valued to her last breath, she defied their predictions and lived another five months. And when she did die, my mother had no guilt that she somehow hastened her end. 

But in a case now bound for the Supreme Court of Canada, doctors argue that they should be the ones — and not the family — who should ultimately have the last word on who lives and who dies. ... 

Rasouli’s condition has noticeably improved and his family believes he is conscious and aware but trapped inside his paralyzed body. He’s given them a thumbs up sign when requested, tracks their movements with his eyes and seems to be trying to communicate. He may well be like the 19% of “vegetative” patients in a Lancet-published study who turned out to demonstrate signs of full consciousness.
Despite his improvement, the Supreme Court has refused to toss the doctors’ appeal, no doubt because they see it as an important test case that needs to be determined. 

So whose life is it anyway? A panel of nine judges will have the unenviable task of trying to decide.

The Supreme Court needs to state doctors are required to obtain consent before withdrawing life-sustaining treatment that is not physiologically futile. This means that a person who is brain injured but living, will not have their ventilator of fluids and food withdrawn by the doctors without consent.