Assisted Suicide's dangerous illusion of control

The following article was written by Dr Will Johnston, the chair of the Euthanasia Prevention Coalition of BC and published in the Calgary Herald on December 19, 2012 under the title: Assisted Suicide's dangerous illusion of control.

By Will Johnston - Calgary Herald, December 19, 2012

Will Johnston

The daughters are beside themselves. One sat in my office recently, telling me about her father’s trips to the bank that are draining his savings. He gets angry when his daughters challenge him.

The money — thousands of dollars, slowly saved from a meagre pension and needed for his care — seems to be going to a recently acquired girlfriend some years younger than himself. He speaks almost no English. The situation was detected by chance when a daughter gave him a ride to the bank and saw his bank book.

Some time ago, I performed a competency assessment on a socially isolated older person who had been placed in a nursing home. An unrelated neighbour had listed the person’s home for sale and was receiving inquiries before a relative became aware.

On another occasion, an older woman had adequate resources to stay in her attractive home and employ a live-in caregiver. A family member, an heir and beneficiary, arranged to have her met at her door by an ambulance crew with a gurney. She was told that if she did not co-operate, the police would be called. She submitted and was transported to a dingy nursing home that she described as a prison. Her home was sold.

A colleague recalls being on duty in an emergency room several years ago when an older bachelor came in desperately ill and confused, accompanied by his niece and nephew.

“He’s had a good life. He wouldn’t want any treatment,” his only relatives (and presumably heirs) attested. With ordinary care and rehydration, the older man walked out of hospital a week later.

Each of these scenarios is different, and none of them grace a research paper, but all of them are the real face of elder abuse. I could list 10 more from my own experience. Government of Canada policy recognizes the epidemic of elder abuse and the unusual difficulty of detecting it, often because the victim resists the revelation of abuse.

I routinely see people induced to do things and accept arrangements that are contrary to their own interests. People can be surprisingly naive.

High profile assisted suicide cases might at first seem to be about another kind of person, a sophisticated and clear-minded sort, immune to undue influence. I suggest that this presumption is also naive.

We all take our cues from those around us. It only takes a few words to promote suicide. If the law is changed, an obligation to mention the legal fact of assisted suicide will be created. Some patients will experience even the most perfunctory acknowledgment of assisted suicide as an inducement to it.

If state-sanctioned suicide becomes part of the atmosphere in our hospitals, a presumption in that direction will be created. I predict the same erosion of medical diligence that many of us on the front lines have already watched happen when caregivers choose to see a patient as having finished all useful life. How much more will this be the case when the patient’s present fear and loss of hope feed smoothly into an official assisted-suicide regime?

Some people would throw away months or years of life, and some would miss good medical care or medical advances they would have wanted to enjoy. Consider the case of Jeanette Hall, who wanted to use Oregon’s assisted suicide law and is grateful, 12 years later, that her doctor directed her toward treatment rather than suicide.

One of Dr. Ken Stevens’ Oregonian patients was not so lucky — part way into his cancer treatment, he became despondent and was given suicide pills by another doctor.

I know someone, happy to be alive, who had alarming symptoms and a clear diagnosis of Lou Gehrig’s disease more than a decade ago. The symptoms inexplicably resolved. Huntington’s disease, a factor in a recent high-profile suicide in Toronto, moved closer to a treatment recently in a stem cell experiment.

If a legal assisted suicide offer is always dangling, variations in the competence and diligence of doctors create arbitrary forces that move choice and control to others, not the patient.

When you or your loved one goes to the hospital, you need to be able to trust that an assisted-suicide-minded doctor or nurse will not be steering you or them toward death. People can be offered the illusion of control and autonomy when the choices are really being shaped by others.

When empowered medical personnel — and right-to-die activists — choose their own opinions about your quality of life, and have been given constitutional protection to counsel, facilitate and steer you toward suicide, you and your loved ones will not be safe.

The choices created by legal assisted suicide may end up being someone else’s, not yours. The speculative legal changes being offered are dangerous and irresponsible. Parliament rejected them firmly two years ago. We will all be safer if our courts do the same.

Photograph by Ami Sanyal

Dr. Will Johnston is chair of the Euthanasia Prevention Coalition of BC.

© Copyright (c) The Calgary Herald

France may allow assisted suicide.

An article published today in the Connexion, France's English newspaper states that Assisted Suicide may be allowed in France. 

The article concerns the report from the Comité Consultatif National d'Ethique in France that examined the issues of euthanasia and assisted suicide and concluded that assisted suicide may be legalized but stated that euthanasia is: 

“a radical medical gesture” that crossed “a forbidden barrier” – and was both impractical and immoral

The report 'severely criticised current medical care of terminally-ill patients in France and called for the development of better palliative care regimes' and it emphasized the moral use of palliative sedation rather than euthanasia or assisted suicide.

The Euthanasia Prevention Coalition (EPC) recognizes the difference between euthanasia and assisted suicide as being somewhat distinctive but both decisions threaten the lives of people who are already devalued or considered by many to have lives that are not worth living.

Euthanasia is when someone directly and intentionally causes the death of another person, usually by lethal injection, and it is considered a form of homicide.

Assisted suicide is when someone is directly and intentionally involved with causing the death of another person, usually by lethal dose. Assisted suicide is to aid, encourage or counsel suicide.

Euthanasia and assisted suicide both involve giving the right to one group of people to directly and intentionally cause the death or be involved with causing the death of another person.

Society should never give one human being the right in law to cause the death of another human being. The act cannot be safe and it will be abused, it cannot be effectively controlled and it cannot be separated from the attitude of the person who is causing or involved with causing the death of the other, such as negative attitudes towards people with disabilities or those with Alzheimer's or chronic disabling conditions.

Further to that, legalizing euthanasia or assisted suicide gives the power over life and death to physicians. This is a power that should never be exercised by one person over another person.

Paris Protest

EPC calls on all people of good will to strongly protest and to oppose any attempt to give others the right to cause death by euthanasia or assisted suicide. 

The article stated that:

the Comité Consultatif National d'Ethique would be asked to look at the report and advise on putting it into practice with a view to a law before parliament in June 2013.

Read the pdf of the report on the Elysee website. 

Belgium considering euthanasia for children and people with alzheimer's

The AAP news published an article today stating that the Belgium government is considering changes to their euthanasia law that would enable doctors to cause death by euthanasia of children and people with Alzheimer's or dementia.

The proposed changes to the euthanasia law in Belgium must be strongly challenged, especially since a recent 10 year review of the Belgium euthanasia law indicates that euthanasia is out-of-control in Belgium.

The Belgium Euthanasia model is in serious need of review, not expansion. The Belgium Euthanasia Model:
* The reporting process in Belgium does not protect vulnerable patients. The patient is dead before the report is submitted (after the death reporting). A study that was published in the BMJ - Nov 2010 found that 47% of the euthanasia deaths in the Flanders region of Belgium were not reported.

* A study published in the CMAJ - June 2010 found that 32% of the euthanasia deaths in the Flanders region of Belgium were done without request or consent.

* There are no reports of doctors who were prosecuted in Belgium for ignoring the safeguards.

* Belgium requires doctors to approve and carry-out euthanasia. It is illegal for nurses to euthanize a patient in Belgium. A study published in the CMAJ - June 2010 found that 45% of the euthanasia deaths done by nurses were done without request or consent.

Belgium does not protect vulnerable people from euthanasia.

The AAP article stated:

The proposed changes to the law were submitted to parliament Tuesday by the Socialist party and are likely to be approved by other parties, although no date has yet been put forward for a parliamentary debate. 

"The idea is to update the law to take better account of dramatic situations and extremely harrowing cases we must find a response to," party leader Thierry Giet said. 

The draft legislation calls for "the law to be extended to minors if they are capable of discernment or affected by an incurable illness or suffering that we cannot alleviate." 

Belgium was the second country in the world after the Netherlands to legalise euthanasia in 2002 but it applies only to people over the age of 18. 

Socialist Senator Philippe Mahoux, who helped draft the proposed changes, said there had been cases of adolescents who "had the capacity to decide" their future. 

He said parliamentarians would also consider extended mercy-killing to people suffering from Alzheimer's-type illnesses. 

Euthanasia was allowed to an Alzheimer's patient for the first time in the Netherlands last year. 

In Belgium, some 1,133 cases - mostly for terminal cancer - were recorded in 2011, about one percent of all deaths in the country, according to official figures. 

A seriously ill prisoner serving a long jail sentence this year became the first inmate to die under Belgium's euthanasia laws.

Link to my blog article concerning 23% of assisted deaths in the Netherlands not being reported.

It is important to note that the article states that there were 1133 reported cases of euthanasia in 2011 and yet studies indicate that up to 47% of all euthanasia deaths go unreported.

The book, Exposing Vulnerable People to Euthanasia and Assisted Suicide uncovers the data proving that unreported euthanasia deaths and the abuse of the euthanasia laws in jurisdictions where it is legal, such as euthanasia deaths without request, not only occurs but represents a threat to vulnerable patients.  

Order the book: Exposing Vulnerable People to Euthanasia and Assisted Suicide. Link.

No euthanasia, but possibly assisted suicide in France.

A article written by Angela Diffley and published today in the European news RFI English stated that the soon to be released French commission report on euthanasia and assisted suicide will recommend that euthanasia remain illegal but assisted suicide be allowed for progressive incurable illnesses.

François Hollande spoke about legalizing euthanasia during the election and soon after the election he established this commission on euthanasia and assisted suicide in France.

Many of these reports and examinations concerning assisted death base limit their research to the data on the reported assisted deaths in jurisdictions where it is legal. Therefore the unreported assisted deaths are not considered within these studies.

The recent meta-analysis of the 2010 data concerning assisted deaths in the Netherlands found that 23% of the "assisted deaths" were not reported. A recent study concerning the practice of assisted deaths in the Flanders region of Belgium found that 47% of the "assisted deaths" were not reported.

These reports indicate that the reported assisted deaths usually follow the guidelines in the law while the unreported assisted deaths usually do not follow the guidelines in the law.

Further to that, these reports have found that the demographic group for people who die by an unreported assisted death tend to be patients who are over the age of 80, die in a hospital, and were incompetent to make decisions for themselves. This represents a "vulnerable patient group" who have lost their life in a manner that is illegal and yet unprotected.

It is also important to note that in every jurisdiction where an assisted death has been legalized, the data from the reported assisted deaths comes from the doctor who carried-out the assisted death. 

The data from Belgium indicates that doctors do not report abuses of the law and doctors do not self-report abuses of the law. The data from the official reports do not indicate that abuses occur because they are simply not being reported.

Protest against euthanasia in France

The Euthanasia Prevention Coalition will work with the groups who oppose the legalization of euthanasia and assisted suicide. To legalize assisted suicide for any reason, will change the belief that it is always wrong to allow people, in society, to kill other people in society. 

Once assisted suicide is legalized, the social question moves from - is it right to kill people in society to in what circumstances is it right to kill people in society.

There must be a line in the law that it is always wrong to kill a human being.

The article from the European news RFI, English stated:

François Hollande

A report commissioned by French president François Hollande, to be made public on Tuesday, will recommend that euthanasia remain illegal in France, while leaving the door open to assisted suicide. 

Professor Didier Sicard concludes after his study of the issue, that assisted suicide could be considered in certain cases of progressive incurable illnesses. 

Under current French legislation, enshrined in the 2005 so-called Leonetti Law, it is illegal to give patients medication which will kill them, but legal to administer pain relief, which might have the side effect of shortening life. 

Opposition UMP Parliamentarian Jean Leonetti, largely responsible for the existing law, welcomed the new report’s conclusion to maintain France’s ban on euthanasia, and suggested that there was no need for any change in legislation.

He said that the details of the 2005 law were often not understood and that the law was not always applied. 

He declared that he himself did not favour allowing assisted suicide, as legalised in the US state of Oregon, because it would “break society’s solidarity with the most vulnerable” 

But in an interview with French radio station Europe 1, Marie Humbert, who helped her tetraplegic son to die in a widely publicised case in 2003, said she was “enormously disappointed” with the recommendations of the new report.

She said she knew of many mothers who had helped their children to die, with the unofficial help of sympathetic doctors, and that it was a very difficult secret for them to bear. 

The report is critical of doctors on the issue of pain relief, and condemns a culture which it says focuses on treatment and does not sufficiently emphasize efforts to reduce suffering, despite the existence of effective drugs. 

The authors also say that doctors sometimes appear deaf to the distress and wishes of patients, and they recommend that palliative care should form part of all medical training.

The book, Exposing Vulnerable People to Euthanasia and Assisted Suicide uncovers the data proving that unreported euthanasia deaths and the abuse of the euthanasia laws in jurisdictions where it is legal, such as euthanasia deaths without request, not only occurs but represents a threat to vulnerable patients.  

Order the book: Exposing Vulnerable People to Euthanasia and Assisted Suicide. Link.

Irish court case seeks to legalize assisted suicide.

The Euthanasia Prevention Coalition (EPC) is very concerned about the recent court case in Ireland that seeks to legalize assisted suicide. 

The Irish assisted suicide case was launched by Marie Fleming, the wife of Exit International leader Tom Curran. She is challenging the Irish law that protects people from assisted suicide.

Fleming, who lives with MS, is arguing that the ban on assisted suicide will force her to die an undignified death. She is asking the court to allow her husband, Tom Curran, the right to assist her death without fear of prosecution.

An expert witness, Dr Tony O'Brien, a palliative care physician at Cork University hospital told the court that legalizing assisted suicide in Ireland would "muddy the waters" and it could put pressure on vulnerable people to end their lives. Professor Robert George from the  Guys hospital in London England warned the court about the practice of euthanasia and assisted suicide in the Netherlands.

The RTE News in Ireland reported on December 13 the following:

An expert in palliative care has told the High Court that changing the law on assisted suicide could put pressure on vulnerable people to end their lives.  

Dr Tony O’Brien, a palliative care consultant, was giving evidence in the case of Marie Fleming, the Wicklow woman who has taken a landmark case challenging the criminal law on assisted suicide.  

Dr O‘Brien said a removal of the absolute ban on helping someone to end their life would "muddy the waters". 

He said he was fearful it could make people feel they were a burden on relatives, leading them to decide they wanted to end their lives.  

Dr O'Brien said if a person had a right to choose their time of death and should there be a corresponding obligation on a physician to enable them to do so would cause him great alarm and would be entirely inappropriate. 

Dr O'Brien then explained that, when properly used palliative care provides relief to human suffering, not death. He said:

Dr O‘Brien said palliative care when properly used was designed to enhance the life of patients and not to render them comatose, as had been suggested during the case.  

He said it would be wrong to suggest there was "a pill for every ill" but palliative care treated the whole person and not just a condition or disease.

O'Brien then challenged the comments by American euthanasia promoter, Margaret Battin who compared palliative care to assisted suicide. O'Brien stated:

He denied that it was a common occurrence that the administration of pain killing medication towards the end of life often had the "double effect" of shortening life. 

He said attempts to link palliative care to physician assisted suicide was misleading. This simply does not happen, he said. He said: "You could kill someone with morphine but it is difficult to do so because of the dosages involved. It is much easier to kill someone with paracetamol."  

Dr O’Brien also said he was deeply concerned to hear of the pain and suffering being endured by Marie Fleming. He felt adequate palliative care could help to relieve this and would meet the needs expressed by Ms Fleming in her evidence.  

He also disagreed with a witness for the plaintiff that hydration and nutrition were routinely withheld from palliative care patients towards the end of life, causing them to die from dehydration or starvation.  

He said decisions about hydration and nutrition were separate clinical decisions, which were not connected.  

Dr O’Brien said at times it may be more burdensome on a patient to administer fluids towards the very end of life and the decision would be made on a burden to benefit ratio.

The court then heard from Professor Robert George, who is an English palliative care consultant who was reported to have stated:

... changing the law on assisted suicide would be a reclassification of a form of killing.  

He said there was a concern about the idea of creating a "slippery slope" to euthanasia in that "once the ending of life is viewed to be the best option the landscape would be changed completely".  

He said it started as voluntary euthanasia in the Netherlands and then became non-voluntary for those for whom it was presumed to be in their best interest, then it moved to people with psychiatric disorders.  

Questions would then be asked who needs it and who does not and why could it not be done for children.  

Prof George said killing people as a treatment or a solution would change society, making it a much more hazardous one.  

Risks to vulnerable people would be high and could not be monitored adequately, he said.  

There is a claim that euthanasia and assisted suicide were different things but he did not agree.

EPC is very concerned about the push to legalize assisted suicide in Ireland. We recognize that the Irish case was based on the Carter case in BC, a case that has been appealed by Justice Minister, Hon Rob Nicholson and will be heard from March 4 - 8, 2013 in Vancouver.

The Euthanasia Prevention Coalition have been granted intervener standing in the appeal of the Carter case in British Columbia.

Assisted Suicide: Strengthen the law against it.

The following letter was written by Ruth Plesner from Victor Montana and published yesterday in the Ravalli Republic newspaper in Montana. I like this letter because it is simple and to the point. 

Ruth's letter follows a great format for writing letters to newspapers. The letter follows.

Assisted Suicide: Strengthen law against it.

I have several concerns about the practice of assisted suicide, which is currently legal in only two states (Washington and Oregon).

1. The potential for elder abuse is very real. Patients in Oregon with a “terminally ill” diagnosis have been refused treatment and steered toward assisted suicide. Patients can be pressured by a relative, who can even administer the dose.
2. A “terminally ill” diagnosis can be wrong. Some patients recover with treatment and may live a long time.
3. Montana already has a high suicide rate and state policy is directed at lowering that rate. Suicide rates have increased in Oregon.

Please tell your legislators to clarify and strengthen our law against assisted suicide.

Ruth Plesner, Victor

Expert in Irish Assisted Suicide case claims that no abuse of vulnerable people occurs.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Marie Fleming, the wife of Exit International leader Tom Curran, is challenging the Irish law that protects people from assisted suicide.

Fleming, who lives with MS, is arguing that the ban on assisted suicide will force her to die an undignified death. She is asking the court to allow her husband, Tom Curran, the right to assist her suicide without fear of prosecution.

Similar to the Carter and Leblanc cases in Canada Fleming is basing her case on the concept that the law discriminates against people with disabilities who are unable to commit suicide without assistance.

An article published in the RTE News in Ireland on December 11, 2012 stated that Professor Margaret Battin, from the University of Utah, claimed that: 

"there was no evidence from studies in the US and the Netherlands that legalised assisted suicide led to abuse of vulnerable people such as the elderly, poor or disabled."

Margaret Battin

A similar article published in the Independent on December 12 stated that Margaret Battin stated that: 

"laws providing for assisted suicide did not lead to unlawful practices affecting vulnerable people. 

In areas where assisted suicide was permitted, a range of conditions and safeguards were applied, said Prof Battin of the University of Utah. 

She agreed there had been objections to her findings but did not believe any of those "hold adequate water".

Margaret Battin has been promoting euthanasia and assisted suicide for at least 30 years. She is not a neutral expert but a euthanasia apologist.

Battin bases her data on the reported cases of euthanasia and assisted suicide in jurisdictions where it is legal and she ignores the data concerning the unreported euthanasia deaths in the Netherlands and Belgium.

By analysing the data from three studies on the practice of euthanasia in Belgium (Physician-assisted deaths under the euthanasia law in Belgium: a population-based survey - CMAJ June 15, 2010, The role of nurses in physician-assisted deaths in Belgium - CMAJ June 15, 2010,Reporting of euthanasia in medical practice in Flanders Belgium: cross sectional analysis of reported and unreported cases - BMJ November, 2010) and the most recent major study on the practice of euthanasia and assisted suicide in the Netherlands (Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: a repeated cross-sectional survey - Lancet July 2012) we learn that the practice of euthanasia is often abused and the euthanasia law is often ignored.

These four studies indicate that:

1. 32% of the euthanasia deaths are done without explicit request in the Flanders region of Belgium. 

2. We learn that nurses are carrying-out euthanasia deaths in Belgium, even though it is illegal for nurses to do euthanasia. 

3. 47% of the euthanasia deaths in the Flanders region of Belgium are not reported and 23% of the euthanasia deaths in the Netherlands are not reported as euthanasia.

A further analysis of these four peer reviewed studies indicates that:

1. When a physician reports a euthanasia death, as euthanasia, the physician usually follows the rules that are outlined by the law.

2. When a physician does not report a euthanasia death, the physician usually does not follow the rules that are outlined by the law.

3. The reasons for not reporting a euthanasia death, include the following: to avoid the administrative burden, the legal due requirements were not met or to avoid possible legal consequences. Often the physician never intended to report the death as euthanasia.

4. When a euthanasia death is not reported in Belgium, or done without explicit request the patient is more likely to be over the age of 80, die in a hospital, and is often incompetent to consent to the act. The same demographic is also over represented when a euthanasia death is done by a nurse in Belgium. Euthanasia deaths that are done without explicit request, that are unreported, or that are done by nurses fit the same demographic group. 

This demographic group "fits the description of a 'vulnerable' patient group" who have died by euthanasia without request.

5. Euthanasia deaths that are done by nurses in Belgium are not legal but occur. These deaths are usually done by order of a physician, but sometimes they are done without consulting a physician. These deaths are usually done by intentional opioid overdose, even though sometimes they are done by neuromuscular relaxants. Nurses who had previously been involved with a euthanasia death and male nurses were far more likely to carry-out euthanasia in Belgium.

Battin did agree that some studies may indicate that depressed people are dying by assisted suicide in Oregon. Battin stated: 

Oregon Death With Dignity Act may not adequately protect patients with mental illness or depression which in some cases may be missed or overlooked.

However she said she noted the word "may".

Battin may have forgotten about a study by her friend, Oregon researcher Linda Ganzini, that was published in 2008. Ganzini studied 58 people who requested assisted suicide in Oregon. Ganzini found that 15 of 58 participants in her study were either depressed or experiencing feelings of extreme hopelessness. Of the 58 participants in her study, 18 died by assisted suicide with 3 of the assisted suicide deaths being persons who Ganzini found had questionable competency due to their depression/feelings of hopelessness.

A similar study from the Netherlands that was published in 2005 found that people who showed signs of depression or exhibited "extreme feelings of hopelessness" were 4.1 times more likely to request euthanasia.

Margaret Battin needs to answer the question, whose findings do not "hold adequate water?"

Meanwhile the Irish government argued that there is no "right to suicide" in Ireland and legalizing assisted suicide will negatively effect certain vulnerable groups.

A similar court case was recently heard in the UK concerning Tony Nicklinson who was living with Locked-in-Syndrome. The three judges on the High Court in the UK decided in the Nicklinson/Martin case that the issues of euthanasia and assisted suicide should be decided by parliament and not the courts.

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