Directives from Supreme Court must be enforced.

This article was published by Advocate Daily on March 31, 2015.

Hugh Scher

Many Canadians do not recognize the full extent to which existing rules around end-of-life decision-making are not serving as appropriate barriers to inappropriate conduct, says Toronto health and human rights lawyer Hugh Scher.

Concerning cases around end-of-life care decisions continue to crop up across Canada, says Scher, noting it is unclear whether directives from prior court rulings are being respected and enforced.

In one recent case, a Toronto physician and hospital were sued by a family who alleged a “do not resuscitate” (DNR) order was unilaterally placed on an elderly patient at Toronto East General Hospital against their wishes, reports the Toronto Star.

The Star reports the statement of claim, which seeks $1.2 million in damages for four of Canh Luong’s family members, alleges Dr. Alvin Chang and Toronto East General committed “wrongful death, abuse of power, negligence and breach of fiduciary duties.”

The statement of claim, says the Star, alleges Chang was negligent in preferring “his own opinion over that of the plaintiffs with respect to the code status of Luong,” for failing to consult them before making the change, and for failing “to provide Luong with the necessaries of life.”

Scher, who is not involved in the Luong case but who has been involved in other such cases, says clear rules and meaningful consequences for those who go against the established guidelines are needed.

“If we are not able to stop the most basic abuses relative to DNR orders or end-of-life care measures now, expanding those practices presents serious dangers,” says Scher. “The Supreme Court of Canada made it clear in Rasouli that doctors should not be acting unilaterally with regard to the withholding and withdrawal of treatment including end-of-life decision-making measures and that consent to treatment or refusing treatment – particularly where it forms part of an ongoing treatment plan – is required from the patient or substitute decision-maker.”

Scher says, 

“Doctors who act against that consent or without it are acting without lawful authority and in my view, are running afoul of the law as established by the Supreme Court of Canada.”

In Carter, released in February, the Supreme Court struck down the ban on doctor-assisted suicide in specific cases. The court gave the federal government 12 months to craft legislation to respond to the ruling, with the ban on doctor-assisted suicide standing until then.

The Carter decision risks creating a culture of permissiveness with regard to all end-of-life matters, says Scher, and real consequences are required for those that break or ignore the law. Without them, all Canadians are put at serious risk in health care settings across the country, Scher states.

For more information contact:

Hugh Scher, EPC legal counsel (Toronto): 416-816-6115 or hugh@sdlaw.ca

Scher, has acted as counsel to The Euthanasia Prevention Coalition in several high-profile end-of-life files including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.

• Clear rules and consequences needed concerning right to receive food and water.
• Appeal dismissed in BC normal feeding case.
• BC Supreme court sides with nursing home in spoon feeding case.
• BC Supreme court decides that normal feeding is basic personal care.

Clear rules and consequences needed concerning the right to receive food and water.

This article was published by Advocate Daily on March 30, 2015.

Hugh Scher

Top British Columbia courts have made it clear that oral nutrition should not be considered health care or medical treatment and instead be seen as basic personal care and support. But, how the directive will be applied and enforced across Canada remains to be seen, says Toronto health and human rights lawyer Hugh Scher.

In Bentley v. Maplewood Seniors Care Society 2015 BCCA 91, the British Columbia Court of Appeal dismissed a request from the family of an 83-year-old woman that their mother no longer be given nourishment or liquids by staff members at the nursing home where she resides.

Justice Mary Newbury agreed with a lower court judge, ruling that the woman, who has advanced Alzheimer’s disease, is exercising her consent when she opens her mouth to accept food and water, despite her family’s position that it was her wish while she was mentally capable that she not be fed in her current condition.

The Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition – BC, represented by Scher and Geoff Cowper QC, were intervenors in the case at trial and on appeal.

“I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes,” writes Newbury. 

“It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not," says the decision.

The coalition also advanced its position at the Supreme Court of British Columbia, which previously ruled that oral nutrition should not be considered health care or medical treatment, but rather seen as basic personal care and support. The court found the woman is capable of making the decision to accept oral nutrition and hydration and is “providing her consent through her behaviour when she accepts nourishment and liquids.”

The case has seen national media attention, with Scher appearing on outlets including Global News, CTV and Lawyers Weekly, and he says with the appeal concluded, it’s time to look forward at how the ruling will take shape across the country.

“The first step is going to be to determine how the ruling in Bentley, which determines that regular feeding and regular hydration represent basic personal support and not health care or medical treatment, is applied across the country,” says Scher. 

“We know there are people in nursing homes across the land, including Ontario, where it’s an open question whether doctors are following that protocol. Families may be making requests of doctors to stop these measures of basic food and drink in a way that may be contrary to the law.”

There are a number of international policies and provisions in places such as the U.S. and Scotland, says Scher, that also consider foods and fluids to be personal support and not health care, but the issue now is how to determine whether the rules are being respected.

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.

Toronto hospital illegally imposed ‘do-not-resuscitate’ order against wishes of dying man’s family: medical board

By Alex Schadenberg

Executive Director - Euthanasia Prevention Coalition

In a rare display of disagreement, the Health Professions Appeal and Review Board rejected a decision by the Ontario College of Physicians and Surgeons and provided some Justice for the family of Douglas DeGuerre, who died on September 22, 2008, after doctors at Sunnybrook Hospital in Toronto unilaterally imposed a do not resuscitate order against the wishes of DeGuerre and his family.

Joy Wawrzyniak

The Appeal and Review Board decided that:

Doctors at a major Toronto hospital violated the law by unilaterally imposing a do-not-resuscitate order on Douglas DeGuerre against his family’s wishes.

According to the National Post:

DeGuerre died from cardiac arrest at Sunnybrook Health Sciences Centre as his daughter, Joy Wawrzyniak, frantically tried to convince medical staff to save him, and health workers declined to help the severely ill war veteran. 

In a case that dramatizes the debate over who has ultimate power in such cases – doctors or patients’ families — Ms. Wawrzyniak said she had only just learned that the “full code” response to emergencies she had requested on her father’s behalf had been over-ruled by a do-not-resuscitate (DNR) order, which meant CPR would not be attempted during cardiac arrest. 

Ms. Wawrzyniak, a nurse, said Wednesday that Mr. DeGuerre, 88, was struggling to breath when she entered his room the day he died in 2008. 

“My father said to me, ‘I’m drowning, I’m drowning.’ Those were his last words,” she recalled. “I grabbed the oxygen bag, and I tried to help my father while they all stood there and did nothing … I just couldn’t believe it.”

Ontario's Medical Regulator had twice rejected Ms. Wawrzyniak's complaint against the doctors at Sunnybrook hospital. The appeal and review board directed the Ontario's medical regulator to re-open disciplinary proceedings against the Sunnybrook doctors The appeal and review board stated:

“Although the circumstances in this case are exceptional, the misconduct alleged is serious,” the board said in its recent ruling. 

“The importance of this complaint transcends the conduct of the [doctors]. It is incumbent on the College to ensure that doctors understand their legal obligations … The public must have confidence that [consent laws] are understood and respected.”

October 18, 2013 the Supreme Court of Canada decided in the Rasouli case that:

Doctors must obtain consent from patients or substitute decision-makers before withdrawing life-sustaining treatment where such a decision is anticipated to result in the death of the patient. When a disagreement exists between a doctor and a patient or substitute decision maker, the case must be brought to the consent and capacity board for a decision.

The Euthanasia Prevention Coalition (EPC) intervened in the Rasouli case at the Ontario Court of Appeal and at the Supreme Court of Canada. EPC is concerned about consent to treatment issues since the euthanasia lobby is pushing to define euthanasia as a form of medical treatment, and because physicians should not be given the power, in law, to decide who lives and who dies.

Hassan Rasouli to be transferred from Sunnybrook Hospital.

By Alex Schadenberg

Executive Director - Euthanasia Prevention Coalition

Hassan Rasouli

The Euthanasia Prevention Coalition is pleased that Hassan Rasouli will soon be transferred out of Sunnybrook Health Sciences Centre to the Toronto West Park Healthcare Centre.

Mr. Rasouli was at the center of a precedent setting case that was decided by the Supreme Court of Canada, concerning the issue of whether doctors in Canada are required to obtain consent before withdrawing life-sustaining medical treatment.

Doctors at Sunnybrook argued at the Supreme Court of Canada that they were not required to obtain consent before withdrawing life-sustaining treatment (the ventilator) from Mr. Rasouli. The Sunnybrook doctors also argued that Mr. Rasouli was in a Persistent Vegetative State while Mr. Rasouli's wife, who is also a doctor, argued that he was responsive. Independent assessments concluded that Mr. Rasouli's diagnosis was wrong and his condition was upgraded to minimally responsive.

On October 18, the Supreme Court upheld the unanimous decision of the Ontario Court of Appeal requiring doctors to obtain consent from patients or substitute decision-makers before withdrawing life-sustaining treatment where such a decision is anticipated to result in the death of the patient.

The Euthanasia Prevention Coalition (EPC) successfully intervened in the Rasouli case at the Ontario Court of Appeal and again at the Supreme Court of Canada.

EPC argued that doctors must obtain consent before withdrawing life-sustaining medical treatment and where a disagreement exists, treatment decisions should be decided by the Consent and Capacity board in Ontario. EPC also argued that, in Ontario, medical treatment is defined as part of a treatment plan. Therefore consent is required when withdrawing life-sustaining treatment constitutes a change in a treatment plan.

A Toronto Star article reported that transferring Mr Rasouli out of Sunnybrook hospital is both good and bad for the family. The article stated:

When he is transferred out of Sunnybrook Health Sciences Centre, he will no longer be under the care of doctors who had wanted to remove him from life support. 

But when he becomes a resident of Toronto’s West Park Healthcare Centre, he will have to pay a monthly basic accommodation fee of $1,707, an amount his family says they cannot afford. 

“I cannot afford that. It is too much for us,” said Rasouli’s wife, Parichehr Salasel.  

But, depending on residents’ income, the fee can be dropped, possibly even eliminated. Rate reductions are also available for residents with eligible dependant spouses or children.

Salasel said she is pleased her husband will be moving to West Park because it offers more rehabilitative services. But she said she is concerned about the fee.

EPC hopes that Mr. Rasouli will get the care that he needs at West Park Healthcare Centre and that the family will find the resources to enable that care.

Links to other articles:

• EPC applauds the Rasouli decision by the Supreme Court of Canada.
• Rasouli case: Who has the right to withdraw Life-Sustaining Treatment in Canada.
• Rasouli case: A strange case to prove a point.
• Rasouli decision being appealed to the Supreme Court of Canada.
• Court of Appeal for Ontario unanimously rules on Rasouli case.

What the Supreme Court said in the Rasouli decision

The following article was written by Mark Handelman. This article is an excellent summary of the Supreme Court - Rasouli decision. This article represent the position of Mark Handelman. 

Consent to Withdrawal of Life Support:
What the Supreme Court of Canada Said In Cuthbertson and Rubenfeld v. Rasouli.

Mark Handelman

By Mark Handelman, BA, LLb, MHSc bioethics) 1
Counsel, Whaley Estate Litigation
m.handelman@sympatico.ca

"It may be necessary to hang a man or pull down a house. But we take good care not to make the hangman and the housebreaker the judges of that. If we did, then no neck would be safe and no house stable."

George Bernard Shaw The Doctor's Dilemma

Introduction

When Mr. Shaw wrote that a hundred years ago, it would not have occurred to him that his precise question would be before Canada’s Supreme Court, with a life [or death] hanging in the balance. Those were the stakes when the Court heard Cuthbertson and Rubenfeld v. Rasouli 2 on December 10, 2012. The Judgment was released October 18th, 2013.

Background

As a result of contracting meningitis following surgery to remove a brain tumour, Mr. Rasouli suffered severe brain damage. He was first diagnosed as being in a persistent vegetative state, but later “upgraded” to being minimally conscious. He remains at Sunnybrook to this day, with limited improvement, dependant on his health practitioners for everything. The intensive care physicians treating him do not think his life worth living and have taken the position that the decision to discontinue life support is theirs alone.

Mr. Rasouli’s wife, Dr. Salasar, trained as a physician in Iran, disagrees. She and their children say he is aware and responsive and, in any event, his religious beliefs require that all things be done to keep him alive in spite of his condition. She therefore began court proceedings to prevent the discontinuation of life support. She contended that, if that was what the physicians wanted to do, they were obliged to take the matter to The Consent and Capacity Board [“CCB”] pursuant to s.37 of Ontario’s Health Care Consent Act [“HCCA”].

The Application pursuant to s.37, known as a “Form G” Application, is to determine whether the patient’s substitute decision maker [“SDM”] complied with the principles for giving or refusing substitute consent when he, she or they gave or refused consent to a treatment proposed by a health practitioner. The CCB, unique to Ontario, has heard about 25 such cases over the past decade, more than all the courts in the country combined.

But, Mr. Rasouli’s physicians argued that this was not a “treatment” decision and therefore the CCB had no jurisdiction. In both Superior Court and the Court of Appeal, although for different reasons, the Judges sided with Dr. Salasal. They held that the unique wording in the HCCA that defined “treatment” to include the withholding or withdrawing of a treatment, covered what the doctors wanted to do, which was discontinue life support by withdrawing existing treatments that kept Mr. Rasouli alive and treating him palliatively in the expectation he would die.

DiManno: Court stays off euthanasia.

The following article was written by Toronto Star columnist, Rosie DiManno, and published on October 21, 2013 in the Toronto Star.

Rosie DiManno

By Rosie DiManno, Toronto Star - October 22, 2013

It was a bad week for the “Death With Dignity” shills.

Unlike what they so ardently advocate for others, do not expect this faction to pull the plug on itself. They will continue to pound on the courtroom door in an unending quest to legalize doctor-assisted suicide in Canada and all the other euphemistic versions of rationalized killing.

On Oct. 10, the British Columbia Court of Appeal overturned a B.C. Court ruling which had found the criminal ban against doctor-assisted suicide to be unconstitutional. In other words, it upheld the existing ban. The majority view in the split decision concluded that, while Charter of Rights and Freedoms law has evolved since 1993 — when last the issue of assisted suicide was visited — still not sufficiently so that the landmark decision should be set aside.

Then, on Friday, in a case that might seem to have little in common with the B.C. matter, the Supreme Court of Canada ruled 5-2 against two Sunnybrook Hospital doctors who had stubbornly sought to remove a severely brain-damaged patient from life support, over the objections of his family. The decision applies only to cases in Ontario and does not address the broader ethical questions.

This legal wrangle was particularly deplorable because it turned on the God-complex of a couple of doctors who’ve been fighting to bypass a dispute resolution system that has been in place for nearly two decades: Ontario’s Consent and Capacity Board, which deals on a case-to-case basis where there is disagreement between physicians and families making decisions on behalf of loved ones who can’t express their own wishes.

Rasouli family

The fate of 61-year-old Hassan Rasouli — on a ventilator and feeding tube since catastrophic complications following brain surgery three years ago — may yet come before the Consent and Capacity Board; that remains unclear. But for the moment, his wife and children are immensely pleased and relieved. While the two doctors continue to maintain that treatment for Rasouli is futile, the family has seen evidence that he is in fact responsive to stimuli — he smiles, he follows them with his eyes, he squeezes his fingers, he has even, as the family stated Friday, made thumbs-up and peace-sign gestures.

Even a layperson with no medical degree — unlike Rasouli’s wife, who was a physician in her native Iran — could see the man is not in a vegetative state. Indeed, neurologists have upgraded his condition to “minimally conscious.” There is brain activity and he might indeed still make a marked recovery. He is, at some level, a sentient being.

So, two cases coming at the conundrum of colossal enfeeblement from different angles but still in pursuit of the same outcome: death by choice, whether of the suffering individual or by treatment providers.

On both counts, it must have come as a rude wake-up for the death acolytes to discover they do not have the sympathetic ear of top courts in this country. “Bloody but unbowed,” vowed one of the lawyers in the B.C. case.

Perhaps they’ve been reading too many of their own editorial clippings, or misunderstanding public opinion polls that provide a blurry snapshot of prevailing attitudes because they exist in a vacuum bereft of nuance. It’s one thing for a person enjoying good health to peer into the future and decide that a life of severely limited faculties, of acute pain, of incurable illness, must surely be unendurable. It’s quite another thing when actually confronted by that reality, whether for oneself or on behalf of family members, as society chips away at the most fundamental of societal concepts: Thou shall not kill.

That’s not a faith-based proscription, lest anyone jump to the mistaken assumption that I’m thumping you over the head with a cross, as some were quick to assert the last time I wrote on this subject. At best, I am a lapsed Catholic who disagrees with the church on just about every social issue, from celibacy for priests to the denial of sacraments to divorced couples to abortion to homosexual unions — though I will say the church got it right on liberation theology, which has been a disaster.

No mainstream faith, however, has come out in favour of assisted suicide.

And, while death huggers pretend that it’s only a matter of time before governments catch up with the learning curve, as if Canada is somehow on the reactionary end of the spectrum, I would remind that out of 196 countries on the planet in 2013, only three allow assisted suicide: Belgium, Switzerland and the Netherlands. In America, three states have passed laws permitting limited euthanasia: Oregon, Washington and Vermont.

This is not a vanguard movement and Canada is hardly out of step with global attitudes, though proponents of euthanasia — which is the correct term, rather than the deceptive tautology of “Death with Dignity” — would have us believe otherwise.

Quebec seems intent, as usual, on marching to its own drummer, having recently tabled a bill to legalize mercy killing — another repugnant, pacifying term. Legally, it’s unclear whether Quebec has the authority to unilaterally implement such a law but it’s charging ahead anyway. Under the Criminal Code, assisted suicide in all its permutations is clearly illegal and unambiguous. While the law is federal, however, the decision to prosecute physicians assisting in suicide is provincial.

Clearly, this is an issue headed for the Supreme Court of Canada. While assisted suicide, euthanasia, mercy-killing, however you frame it, is steeped in deep-rooted precepts of morality and ethics, I will put my faith in that highest court in the land to render a decision that cleaves to matters of law rather than emotionalism.

But once you open that door, there’s no slamming it shut again, regardless of reassurances to the contrary.

In the Netherlands, deaths by euthanasia jumped 64 per cent between 2005 to 2010, and “terminal sedation” — defined in Canadian guidelines as “sedation with continuous IV narcotics and/or sedatives until the patient becomes unconscious and death ensues from the underlying illness,” thus not technically euthanasia — spiked from 11,000 to 17,000 in the same period. Not euthanasia, so no documenting paperwork required.

The Dutch even have mobile euthanasia units so doctors can kill patients in their own homes, including people with Alzheimer’s who obviously can’t form cogent intent.

Once that taboo is breached, the parameters keep expanding. That’s why advocates for the most vulnerable among us are so appalled, as children born with spina bifida are put to death (in the Netherlands, with parental consent) and the criteria for “exceptional circumstances” inevitably widen. In Quebec, Bill 52 is unacceptably vague in defining criteria, permitting doctors to assist in suicide when a patient “suffers from an incurable illness” or “from an advanced state of irreversible decline in capability.” That could just as easily define old age.

It’s not just about you, the “my right to die” chorus, as if any of us can opt out.

Beware the lulling croon of the death whisperers.

EPC applauds the Supreme Court of Canada Rasouli decision.

The Rasouli family and the Euthanasia Prevention Coalition (EPC) have won a precedent setting decision at the Supreme Court of Canada in the case: Cutherbertson V Rasouli.

Rasouli family with lawyers
at Supreme Court last year.

EPC applauds the decision of the Supreme Court of Canada who upheld the unanimous decision of the Ontario Court of Appeal requiring that doctors must obtain consent from patients or substitute decision-makers before withdrawing life-sustaining treatment where such a decision is anticipated to result in the death of the patient.

EPC intervened in the Rasouli case to support the need for oversight of doctors in addressing life and death decisions. 

The Supreme Court of Canada maintained that doctors must raise any objections or concerns they may have about consent to treatment before the Consent and Capacity Board who have the jurisdiction to address any challenges to that consent made by a doctor.

Hugh Scher

Hugh Scher, the lawyer who represented EPC at the Supreme Court of Canada stated:

“We are pleased that the Supreme Court has recognized the need for oversight of doctors relative to treatment decisions at the end of life. The Court decision ensures that patient values, beliefs and best interests are given prominence, in conjunction with the clinical considerations of doctors”

Alex Schadenberg, Executive Director of the EPC stated:

“There is a real concern about the impact of accuracy of diagnosis and the critical role of patient autonomy in the making of treatment decisions. 

EPC is pleased that the Supreme Court of Canada maintained that doctors are not the arbiters of life and death.”

The Rasouli case concerned Hassan Rasouli who underwent surgery on October 7, 2010 at Sunnybrook Health Sciences Centre for a benign brain tumour. He experienced a bacterial meningitis infection that caused him significant cognitive damage.

Hassan Rasouli with family

On October 16, Mr Rasouli was placed on a ventilator and a tube was inserted to provide him hydration and nutrition.

His doctors, Cutherbertson and Rubenfeld, determined that Mr. Rasouli was in PVS and decided to withdraw the ventilator, but his wife, Parichehr Salasel, who is also a physician, refused to give consent to the withdrawal of the ventilator.

The Rasouli family insisted that he was not PVS and in fact he was responding. The family was later proven to be correct and his medical condition was upgraded..

The Rasouli family applied to the Superior Court of Justice to obtain an injunction to prevent the doctors at Sunnybrook hospital from unilaterally withdrawing the ventilator.

The case was heard over three days in February and March (2011) and the decision by Justice Himel was released on March 9, 2011.

Justice Himel decided that the Rasouli family did not need an injunction because the doctors are required to obtain consent before withdrawing medical treatment, which in this case was the ventilator.

The doctors appealed the decision of Justice Himel to the Court of Appeal for Ontario.

The Court of Appeal for Ontario unanimously decided that doctors did not have the unilateral right to withdraw life-sustaining treatment, they upheld the role of the Consent and Capacity Board and stated that doctors continue to have the right to seek consent from the Consent and Capacity Board when consent is refused by the person or the attorney for personal care.

The Supreme Court of Canada upheld the unanimous decision of the Court of Appeal for Ontario

Link to the CBC interview with Hugh Scher, EPC legal counsel.

For further information, please contact:

• Hugh Scher, (Toronto) EPC Legal Counsel: (416) 816-6115 / hugh@sdlaw.ca
• Alex Schadenberg, (London) EPC Executive Director: (519) 851-1434 / info@epcc.ca

Links to other articles:

• Rasouli case: Who has the right to withdraw Life-Sustaining Treatment in Canada.
• Rasouli case: A strange case to prove a point.
• Rasouli decision being appealed to the Supreme Court of Canada.
• Court of Appeal for Ontario unanimously rules on Rasouli case.

Supreme Court To Release Landmark Ruling (Rasouli Case) On Whether Doctors Can Unilaterally Terminate Life Support Without Patient Consent - Rasouli V. Cuthbertson.

Media Release - Canada Newswire, October 17, 2013

The Supreme Court is set to release, tomorrow, its decision in a landmark case that will determine if doctors must obtain consent before removing life support from a patient.

In this case, doctors refused to obtain consent before deciding to terminate life support and they refused to apply to the Consent and Capacity Board, the body charged with oversight, in Ontario of such matters.

Hugh Scher

The family was forced to apply for a Court injunction to stop the withdrawal of life support to Mr. Rasouli.

The Euthanasia Prevention Coalition (EPC) intervened in this case to support the need for oversight of doctors in addressing life and death decisions.

In this case, Mr. Rasouli was also misdiagnosed as being in a persistent vegetative state. In fact, he was conscious and able to communicate as his family had suggested throughout.

“The case raises fundamental questions about the need for oversight with respect to critical treatment decisions at the end of life”, says Hugh Scher, the Toronto lawyer that represented EPC at the hearing before the Supreme Court of Canada. 

Alex Schadenberg

“There is a real concern about the impact of economic considerations, accuracy of diagnosis and the critical role of patient autonomy in the making of treatment decisions”, says Alex Schadenberg, Executive Director of EPC

“We hope the Supreme Court upholds the oversight responsibility of the Consent and Capacity Board and ensures that patient values, beliefs and best interests are given prominence, in conjunction with the clinical considerations of doctors”, says Scher. 

The Supreme Court will likely lay down a set of guiding principles relative to such end of life situations and provide direction in the process of making critical medical treatment decisions.

Euthanasia Prevention Coalition spokespersons:

Hugh Scher, (Toronto) EPC Legal Counsel: (416) 816-6115 / hugh@sdlaw.ca

Alex Schadenberg, EPC Executive Director: (519) 851-1434 / info@epcc.ca

Link to similar articles:

Rasouli case: 'End of life' often really means ending life.

Rasouli case: A strange case to prove a point.

EPC response to the unanimous decision of the Ontario Court of Appeal.

Euthanasia Prevention Coalition: Submission to the Quebec Committee on Health and Social Services Committee

Submission to the Quebec Committee on Health and Social Services Committee re: Bill 52: “An Act Respecting End-of-Life Care” 

Proposed changes to the law, Bill 52, which have the effect of legalizing euthanasia in Quebec represent a serious risk to people at the most vulnerable time of their life. The proposed changes reflect a fundamental transformation in the doctor patient relationship which runs contrary to the established ethic and values of the medical profession throughout Quebec, Canada and around the world.

Virtually every medical association in Canada and around the world have upheld the principle, to “Do No Harm” by opposing euthanasia and assisted suicide as being contrary to basic medical ethics.

Euthanasia and assisted suicide is legal in seven small jurisdictions throughout the world. Continued prohibition of euthanasia remains the norm in virtually every country, state, and international convention.

It is a mistake that will have tragic consequences if Quebec legalize euthanasia because they will also be placing members of society at risk of subtle pressure for euthanasia or having it inflicted upon them without request.

Maintaining a prohibition on euthanasia is based on patient safety and the equal protection of every Quebec citizen, especially when they are at the most vulnerable time of their life.

The Euthanasia Prevention Coalition (EPC)

EPC is a not-for-profit organization which represents a broad cross-section of the Canadian population, including people with disabilities, seniors, healthcare practitioners and members of different cultural and religious backgrounds. 

Our mandate is to preserve and enforce social, legal and medical safeguards prohibiting assisted death and to promote compassionate healthcare respectful of the lives, dignity and autonomy of vulnerable people.

EPC was granted intervener standing by the Quebec Superior Court in the case of Leblanc c. Canada (Procureur général). This case involved a constitutional challenge to s.241(1)(b) of the Criminal Code in an attempt to strike down laws against assisted suicide in Canada.

EPC was granted intervener standing by the BC Supreme Court and by the BC Court of Appeal in Carter v. Attorney General. This case involved a constitutional challenge to s.241(1)(b) of the Criminal Code and related provisions in an attempt to strike down the laws against assisted suicide and euthanasia in Canada.

EPC was granted intervener standing before the Supreme Court of Canada and the Ontario Court of Appeal in the case of Rasouli v. Cuthbertson (2011) ONCA 482. This case involves the interpretation of Ontario’s Health Care Consent Act and particularly the definition of treatment as including the requirement of consent to implement a plan of treatment which includes the withdrawal of mechanical ventilation and implementation of palliative care where such a plan is anticipated to result in the death of the patient despite objections raised by the applicant’s substitute decision-maker.

EPC was granted intervener standing in the Appeal court of Ontario case of Scardoni v. Hawryluck (2004), 69 O.R. (3d) 700.  This case involved the interpretation of prior expressed wishes under the Health Care Consent Act in Ontario and the proper application of the best interests test set out under Section 21 (1) of that Act, along with argument as to the appropriate means by which to interpret relevant provisions of the Act in a manner consistent with the terms and values set out in the Charter of Rights and Freedoms and particularly sections 7 and 15.

Euthanasia Prevention Coalition’s Position:

The question of legalizing euthanasia is profound. This question cannot be treated lightly and it must be decided based on the common good of every member of society.

The Euthanasia Prevention Coalition opposes all forms of euthanasia and assisted suicide. We are convinced that it is never acceptable to provide a means, in law, for one person to have the right in law, to cause the death of another person. We recognize that prohibitions on causing the death of another human being are designed to equally protect every citizen in society.

We understand that situations occur, whereby people seek to end their lives, but we are convinced that these situations become very different when the law allows someone else to actually cause the other person’s death.

The stakes are high in the euthanasia debate. The euthanasia debate concerns personal and societal decisions to intentionally cause the death of people. 

Definitions:

Euthanasia is to knowingly and intentionally perform an act that is explicitly intended to end another person’s life 1 whereby the death is caused by the act. The specific conditions for euthanasia will vary based on laws, rules, and social acceptance.

Assisted suicide means to knowingly and intentionally provide a person with the knowledge or means or both required to commit suicide, including counseling about lethal doses of drugs, prescribing such lethal doses or supplying the drugs.1 

Bill 52: “An Act Respecting End-of-Life Care” avoids using the terms euthanasia or assisted suicide in the debate, but rather uses the term “medical aid in dying” as part of “end-of-life care.”2 The term “medical aid in dying” can have a wider application and lacks the precise definitions of euthanasia and assisted suicide.

It is assumed that the Quebec government intends through Bill 52 to regulate the acts of “medical aid in dying.” In his critique of Bill 52, Alex Schadenberg, our executive director, points out that Bill 52 employs ambiguous language.3

EPC published a critique of Bill 52 on June 18th stating:

Bill 52: “An Act respecting end-of-life care” defines “end-of-life care” to mean: palliative care provided to persons at the end of their lives, including terminal palliative sedation, and medical aid in dying.

The bill states that doctors would administer “medical aid in dying.” Euthanasia is to directly and intentionally cause the death of another person, usually by administering a lethal injection. 

"Medical aid in dying" is therefore a euphemism for euthanasia in Bill 52.

Since the definition of palliative care includes: terminal palliative sedation and medical aid in dying, therefore the definition of palliative care includes euthanasia.

Bill 52 states that it creates a “right to receive palliative care.” A right to receive palliative care would be good, except that the definition of palliative care includes medical aid in dying (euthanasia). Therefore Bill 52 also creating a right to receive euthanasia.

The definition of “terminal palliative sedation” in Bill 52 is unclear. Sedation for the purposes of palliation is good, but due to the vague definition, EPC is concerned that the abuse of terminal palliative sedation will result in euthanasia without request being done “under the radar” and being reported as terminal palliative sedation.3

Due to the vague, ambiguous and unclear definitions that Bill 52 uses, the EPC sends out a warning that if passed, Bill 52 is likely to be significantly abused in a similar manner to the Belgian euthanasia law.