The Ottawa Citizen by Hilary Young 7 November 2013 

The Supreme Court of Canada recently ruled in the case of Hassan Rasouli, a Toronto man who has been on life support since 2010. His doctors consider continued life support to be futile, even harmful to Rasouli. His wife, Parichehr Salasel — herself a physician — refused consent to withdrawing treatment both because of her medical assessment and her husband’s values regarding the sanctity of life.

The Supreme Court had to decide whether consent is required to withdraw life support when doctors consider it futile, or whether consent is only required for treatments that doctors are willing to provide. When doctors want to stop treating, it was unclear whether patients (or their families) could refuse consent to the withdrawal of treatment. If so, consent would effectively create an entitlement to treatment (specifically life support).

The case must have been difficult for the court: if it found for Rasouli, doctors would sometimes have to treat against their clinical judgment. Also, although resource allocation was not an issue before the court, the judges knew that finding for Rasouli would give some patients a claim to expensive treatment of little or no benefit. On the other hand, finding for the doctors might give too little weight to patient autonomy.

The Supreme Court held that consent is required for doctors to remove Rasouli’s life support. This does not necessarily mean he will be kept on life support indefinitely. Consent given by a family member for a loved one must be in the patient’s best interests. The doctors may yet argue that continued life support is not in Rasouli’s best interests. If the Ontario Consent and Capacity Board agrees, life support could legally be withdrawn.

It may seem sensible to resolve such disputes on the basis of the patient’s best interests. However, the court’s decision has some troubling implications, and a great deal of uncertainty remains.

The troubling implications include requiring doctors to provide treatment they consider to be contrary to good medical practice. In an earlier case in Manitoba, three doctors quit their job rather than be forced to provide end of life care under circumstances they considered “tantamount to torture.”

Another implication relates to the best use of medical resources. I do not believe that ICUs will now fill up with people who want life support at all costs. Many of us do not want that for ourselves or for our families. Nevertheless, given the need to ration our limited health care resources, any legal entitlements to expensive treatment of little or no medical value should be debated.

In addition, there is still much uncertainly in the wake of Rasouli. First, because the court based its decision on the definition of the term “treatment” in Ontario’s Health Care Consent Act (HCCA), the case arguably has no application outside Ontario.

There is also uncertainty regarding the types of treatments that require consent. The Supreme Court held that consent is required to withdraw mechanical ventilation. It did not hold that all withdrawals of life-sustaining treatment require consent. Given the court’s reasoning, a doctor may be entitled to place a “do not resuscitate” order on a patient’s chart without consent, or perhaps to withhold artificial hydration and nutrition without consent. Or maybe not.

This uncertainty inevitably means more litigation, and more stress and suffering by patients.

The issue of who decides whether patients may have treatment that doctors do not want to provide — at the end of life and otherwise — should not be resolved on the basis of the statutory definition of “treatment” in the Health Care Consent Act. Rather, legislatures should consult with the public and other stakeholders, and should then make clear what the rules are.

Hilary Young teaches in the Faculty of Law at the University of New Brunswick.