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Hassan Rasouli, photographed with his daughter and wife: On Dec. 10, the Supreme Court of Canada will hear an appeal over who has final say in giving care – or withdrawing it (Fernando Morales/The Globe and Mail)

Hassan Rasouli, photographed with his daughter and wife: On Dec. 10, the Supreme Court of Canada will hear an appeal over who has final say in giving care – or withdrawing it

(Fernando Morales/The Globe and Mail)

BERNARD DICKENS

Comfort for doctors and patients alike Add to ...

Canadian medical law may begin to resolve some contentious issues about patients’ control of their care on Dec. 10, when the Supreme Court of Canada hears the case of Hassan Rasouli.

Mr. Rasouli has been on ventilator life support at Toronto’s Sunnybrook Health Sciences Centre since October of 2010 following postsurgical complications and bacterial meningitis that led to severe brain damage. His doctors considered him to be in a persistent vegetative state but acknowledged that he might be minimally conscious, aware of his circumstances, yet still incapable of expressing preferences. His wife acts as his substitute decision-maker, pursuing his best interests because he was never able to tell her what he would want.

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The doctors anticipate no improvement in Mr. Rasouli’s condition and, considering active treatment futile, proposed to remove his life support and administer palliative care for comfort until natural death occurs. But his wife disagreed, saying continued life support is in her husband’s best interests.

The doctors claim that discontinuation of ineffective treatment does not require consent by or on behalf of a patient. They asked a court to confirm that withdrawing futile life support is a medical decision for them, not the patient, to make. The trial judge decided that, on the terms set out in Ontario’s Health Care Consent Act, doctors’ withdrawal of treatment from a patient is part of their “plan of treatment” and that this can be implemented only with consent given by or on behalf of the patient.

The judge ruled that, if the doctors consider that the substitute decision-maker is not acting in the patient’s best interests, as the act requires, they should refer the case to Ontario’s Consent and Capacity Board. The board may uphold a decision it considers competently made by or on behalf of a patient, or substitute its own decision. The Ontario Court of Appeal upheld the trial result, paving the way for the doctors’ final appeal to the Supreme Court.

The Supreme Court must decide on the basis of the Ontario legislation, but the doctors argue that this mainly codifies the background general law. As a national court, the Supreme Court is likely to reflect on how the case fits within the wider Canadian legal framework. Under the general law, patients may decide to accept or reject treatments offered according to their doctors’ clinical judgment but can’t insist on treatments that aren’t so offered, usually because their doctors consider them inappropriate. Doctor-patient interactions are not acts of government, so claims are unlikely to arise of denials of rights under the Charter of Rights and Freedoms.

Mr. Rasouli’s doctors fear that, if they require patients’ consent to withdraw care that’s proving of no benefit, refusal of consent may compel them to use scarce resources in worthless treatments. Worse, treatment devoted to patients it can’t help would be denied to patients it would benefit. They also worry that, if initiated care can’t be withdrawn as doctors judge appropriate, then care that might prove helpful might not be started. The Court of Appeal considered these fears groundless, since it was “prepared to accept that the [Ontario] Act does not require doctors to obtain consent from a patient or substitute decision-maker to withhold or withdraw ‘treatment’ that they view as medically ineffective or inappropriate.”

But the Court of Appeal did rule that removing a patient from a ventilator and placing him on a program of palliative care until he dies is “treatment.” Consent is accordingly required, from the patient, substitute decision-maker or the independent Consent and Capacity Board. The Supreme Court will address the competing autonomy of doctors and patients in medical care, and implications of replacement of historical medical paternalism (“doctor knows best”) by patients’ informed choices.

One issue not addressed was the possible impact of patient choices on health-care costs. With Canada’s aging population and an accumulation of health-care costs in prolonged end-of-life care, patient autonomy may conflict with doctors’ ability, and willingness, to act as gatekeepers of public health-care resources.

Doctors are required to use the means available to them to care for individual patients in the patients’ best interests. Even when responsible for the care of several patients dependent on the same resources, they must give priority to the patient with whom they’re immediately engaged. They can’t sacrifice the interests of that patient to preserve resources that may benefit another patient. Equally, however, they can’t indulge that patient with treatment they believe is futile or extravagant. Their fear of being required to accommodate the unrealistic hopes of patients or their families justifies more relief than the Court of Appeal offered.

The Supreme Court faces the challenge of providing comfort, to doctors and patients alike, that health-care resources will not legally have to be deployed with no realistic prospect of benefit. The alternative is trusting that provincial legislatures can resolve competing interests of doctors required to practise to professional standards, and patients wanting the care they believe will benefit them, with greater clarity than the legislation at the centre of this appeal achieved.

Bernard Dickens is professor emeritus of health law and policy at the University of Toronto.

 

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