The Ontario Court of Appeal's decision on Wednesday about whether or not to keep a patient on life support did not resolve the conundrums involved - and could not have done so. Only legislative change can help to alleviate such conflicts between families and doctors, without giving either side unilateral power over life-and-death questions.
In October, 2010, Hassan Rasouli suffered severe brain damage after tumour-removal surgery. He has been on a ventilator at Sunnybrook Hospital in Toronto ever since. His doctors see no medical purpose in keeping him on life support, and propose shifting him to palliative care; his family disagrees with them.
This dispute went to the Superior Court of Ontario, where Madam Justice Susan Himel decided in favour of the Rasouli family's request for a hearing by a tribunal called the Consent and Capacity Board - the bulk of the business of which concerns the mentally ill, not the dying.
The judge relied on the provincial Health Care Consent Act, which defines "treatment" to include "the withholding or withdrawal of treatment," so that the consent of Mr. Rasouli's wife, Parichehr Salasel, as his representative, would be needed to take him off the ventilator - to end that treatment.
Madam Justice Himel herself remarked on the circularity of the definition. It is an unsatisfyingly technical basis for a decision, and does not follow from any discernible principle or policy. In its turn, the Court of Appeal gallantly wrestled with the same point, which it ingeniously got around by saying that in this case the life support and the doctors' proposed palliative care added up to one integrated "treatment package," which required Ms. Salasel's consent.
Consent to treatment is a highly artificial principle to apply to these situations. Unless a no longer conscious patient has left very clear and detailed instructions in anticipation of a whole range of circumstances, the patient's supposed wishes must indeed be important, but not an all-powerful criterion.
It seems irrational to compel doctors to treat, in particular, to make them continue a treatment that they believe to be of no medical value. On the other hand, given the constant pressure on the health-care system, there is some risk that doctors could become biased by their views on how to allocate limited resources, even in matters of life and death.
An either/or choice between a family's and a doctor's opinions cannot wholly be avoided, but it can at least be mitigated.
As things stand, physicians do not simply have unilateral power to withdraw treatment. Hospitals, and ultimately self-regulatory bodies such as the College of Physicians and Surgeons in Ontario, have criteria about whether there is any medical benefit to continuing the treatment of a presumably dying person. Those criteria help establish a standard of care.
As a matter of common law, the family can go to the court alleging that the physician has failed to exercise the requisite standard of care - much as in any medical negligence case. Doctors need to be held to that standard, in the light of the best available medical knowledge and their profession's criteria.
Still, court proceedings are complex, formal and expensive.
The Consent and Capacity Board of Ontario can provide a faster, simpler review hearing than a superior court can give. But as the board is now constituted, neither its mandate nor its membership enables it to adequately consider the issues in cases such as Mr. Rasouli's. As its name signifies, it is mainly concerned with consent, and someone's mental ability to give (or refuse) consent to treatment.
One-third of the board's members are lawyers (or retired judges), one-third psychiatrists, and one-third come from the general public. There is no provision for physicians other than psychiatrists.
The Health Care Consent Act should be substantially revamped to make it part of the board's job to consider whether continuing treatment of patients on life support provides any medical benefit, that is, whether the physicians have complied with their standard of care.
Moreover, doctors primarily concerned with bodies, rather than with minds and souls, should have input, not only as witnesses, but as adjudicators, too. This should not, however, abolish ultimate recourse to the courts.
Any such legislative change will not come in time for Mr. Rasouli, though his case may yet go to the Supreme Court of Canada, where the judges are comparatively comfortable with policy and with broad principles.
There will be no panacea to solve disputes between doctors and families in end-of-life situations. But a law that articulated the principles to be applied and balanced would be real progress from the present yawning gap.