Canadian Bar Association (CBA) resolution should not wade into Rasouli territory

Hugh Scher

This article was published by Advocate Daily on February 20.

A resolution on end-of-life decision-making to be considered by the Canadian Bar Association (CBA) is poised to help lawyers, but a Supreme Court ruling addressing doctors’ roles in these choices should be kept in mind during the debate, says Toronto human rights and constitutional lawyer Hugh Scher.

The CBA is set to consider the resolution, titled Clarifying Law About End of Life Decision-Making, at its mid-winter meeting Feb. 21 and 22 in Ottawa.

As counsel to the Euthanasia Prevention Coalition, which has intervened in several high-profile end-of-life cases, including Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 and Carter v. Canada (Attorney General), 2015 SCC 5, Scher is no stranger to the controversial conversation around end-of-life decision-making or assisted suicide.

“We think this is an appropriate, helpful and positive contribution, but care must be taken to ensure it doesn’t extend into other unclear domains such as euthanasia and assisted suicide or unilateral authority of doctors, which has already been dealt with by the highest court,” says Scher.

In Rasouli, the Supreme Court dismissed an appeal that would have permitted doctors to end life support for a disabled man without the consent of his family or a substitute decision maker.

The decision said under Ontario's Health Care Consent Act, a plan of treatment includes the withholding and withdrawal of treatment and cannot be unilaterally withdrawn by doctors without consent.

“There was some concern on our part on the question of whether or not the association was seeking to revisit the Rasouli ruling and ultimately reopen the question of whether doctors should have unilateral authority or not, but it seems that the resolution is not going to address that,” says Scher. “We would urge that that not be interfered with in light of the Supreme Court ruling.”

The proposed resolution looks to have the CBA lobby governments in collaboration with stakeholders to develop a framework to facilitate end-of-life health care decision-making that respects specific principles, including ensuring patients and substitute decision makers (SDMs) are fully informed on their rights and encouraging health-care organizations to implement patient-focused compassionate dispute resolution policies and procedures.

The resolution also proposes the CBA: 

“urge governments in provinces and territories without existing structures to put mechanisms in place for quick access to the courts (or specialized boards) when disputes cannot be resolved without assistance;” and “urge provincial and territorial governments, in consultation with the federal government, to ensure that valid SDM appointments under legislation in one province or territory are recognized and enforceable in other jurisdictions in Canada.”

Scher says the resolution speaks to the important role lawyers play in dealing with advance directives related to end-of-life care wishes.

“Lawyers must ensure health-care wishes of their clients are drafted in conformity with the most recent rules of the court, and that they’re particular and specific to the circumstances people could find themselves in,” says Scher. “Otherwise, they may fall on deaf ears and not be enforced.”

• EPC applauds Supreme Court of Canada Rasouli decision.
• What the Supreme Court of Canada said in the Rasouli decision.