Rasouli case: A strange case to prove a point.

Matt Gurney published a thought provoking article in the National Post, today,  entitled: Hassan Rasouli: A strange case to prove a point with. 

The Rasouli case is particularly concerning since the "doctors" in the case continue to seek to have his ventilator withdrawn without the consent of the family even though Mr. Rasouli has recovered from his original diagnosis. I have republished the article by Matt Gurney below my article.

Rasouli Family

The Rasouli case began in late 2010, when the "doctors" at Sunnybrook Hospital in Toronto told the Rasouli family that they would be withdrawing the ventilator from Hassan Rasouli, who was dependent on the ventilator, with or without the consent of the Rasouli family.

In response to the threat to withdraw the ventilator, the Rasouli family asked the court for an injunction to prevent the ventilator from being withdrawn.

Justice Himel heard the case and decided that the Rasouli family did not need an injunction because the "doctors" are required to obtain consent before withdrawing life-sustaining treatment. Himel decided that if the doctors wanted to withdraw the ventilator without the consent of the family that they would need to bring the case before Ontario's Consent and Capacity Board.

Link to my article concerning the decision by Justice Himel.

The "doctors" appealed the Himel decision to the Ontario Court of Appeal rather than bring the case to the Consent and Capacity Board. 

The Euthanasia Prevention Coalition (EPC) intervened in the Rasouli case at the Ontario Court of Appeal. Link to my article that was written the day after the Ontario Court of Appeal hearing.

Last year the Supreme Court of Canada decided to hear the Rasouli case, even though three Justices 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 even though 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 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 decision will extend to issues related to hydration and nutrition and other life-sustaining treatments.

The Supreme Court will likely define what constitutes medical futility. 

The Ontario Court of Appeal unanimously decided that medical treatment that is physiologically futile can be withdrawn from a patient without consent. Therefore, if a doctor is providing medical 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, in this case, is not futile.

The problem with the concept 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 maintain the unanimous decision of the Ontario Court of Appeal, 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.

Rasouli case: A strange case to prove a point with.

Matt Gurney, National Post, December 17, 2012

Matt Gurney

In the aftermath of a devastating illness or injury that leaves a citizen with little chance of recovery, who decides what happens next? The Supreme Court of Canada will soon rule on this difficult question.

Specifically, they will decide the case of Hassan Rasouli, a 60-year-old Toronto man who requires life support to live. Rasouli has been this condition since 2010. After an operation at a Toronto hospital, Rasouli developed an infection that severely damaged his brain. Doctors determined that the damage was irreversible and recommended terminating life support. Rasouli’s family, however, refused to consent, both on religious grounds and in hopes that their husband and father might recover.

This became a legal matter when the doctors declared that they had the legal authority to withdraw life support. The family fought that in court. The Lower Courts have been split on the issue and the Supreme Court will have the final say. (edit: The lower courts were not split on the issue. Justice Himel and the Ontario Court of Appeal had unanimously decided that consent is required before life-sustaining treatment can be withdrawn).

But there is an additional wrinkle here.

When the court battles started, Rasouli had been diagnosed as being in a persistent vegetative state. While the precise definition of that term varies by jurisdiction, it effectively means two things: The patient has noconscious awareness and will not recover. This is not the same thing as brain death, wherein the brain is literally dead, even if the body can be sustained mechanically (usually to permit organ harvesting for donation). It is also not the same thing as a coma, in which a patient is not only unaware, but is unconscious. Patients in a persistent vegetative state can be awake — eyes open and moving about. But there’s no consciousness there. It is the ultimate embodiment of that crude old saying — the lights may be on, but nobody’s home.

Given all the above, whatever the Supreme Court may eventually rule on the legalities of the matter, the doctors seem to have a pretty good argument that there’s nothing to be served by keeping Rasouli on life support.

Except for just one thing: Rasouli isn’t in a persistent vegetative state.

After a year in hospital, Rasouli’s condition was upgraded to a minimally conscious state. It isn’t much of an upgrade — patients in minimally conscious states still face extremely long odds of making anything like a full recovery. And minimally conscious states can be minimal indeed. Rasouli has been carefully tested, and determined to be toward the lower end of consciousness that would even quality for a diagnosis of minimal.

But while the difference between persistent vegetative and minimally conscious states may be small, it’s still enormously significant. Before, doctors were saying that Rasouli had effectively zero chance of any kind of recovery. They were about as certain as anyone can be certain about anything as complex as the human brain.

Now? They’re still recommending that Rasouli be removed from his ventilator, without which he cannot survive — the damage to his brain has destroyed his ability to breathe on his own. But they also acknowledge that Rasouli is not in a persistent vegetative state. It’s unknown whether that reflects an improvement in Rasouli’s condition, or evidence that doctors misdiagnosed him originally. But either way, the family is entirely right to point out that all those who said Rasouli would not get better were wrong. Rasouli may be minimally conscious, but he is conscious. Someone’s home.

There is indeed value there, and the court must carefully consider the issue. Our healthcare system cannot afford to sustain all those patients whose time has come (and passed) but whose families are having a tough time letting go. But families, or those patients whose previously expressed desires can be conveyed through an intermediary, also have some stake in this. It’s as tough an issue as can be imagined.

But it’s also one that has to be uncomfortable for the doctors, and not just because of the complexity of the case. Doctors are asking the courts to agree that their medical judgment is sufficient grounds upon which to withdraw life support in a case where their initial diagnosis is already known to have been wrong.

The court hasn’t been asked to rule on the issue of medical competency or why Rasouli’s diagnosis was changed. But for the broader public, it’s hard to ignore the implications of his improved (if still tragic) condition. We all like to think those administering our medical care know what they’re doing. It would shake the faith Canadians have in their medical system if doctors see their powers over end-of-life care expanded in a case they’ve already gotten wrong once.

National Post

Mgurney@nationalpost.com