The Supreme Court of Canada has left little doubt that it intends to create a blueprint for end-of-life treatment when it hears a landmark appeal next December.
The court rejected an application Thursday from the family of a 60-year-old Toronto man, Hassan Rasouli – a retired engineer in a near-vegetative state for more than a year – to withdraw its case from the court docket, on the grounds that Mr. Rasouli has passed into a higher degree of consciousness. The case was launched by two of Mr. Rasouli’s doctors at Sunnybrook Hospital – Brian Cuthbertson and Gordon Rubenfeld – who want to take him off life support, arguing that he has no hope of ever regaining consciousness.
The case is almost certain to result in a judgment that provides guidance on a complex medical and philosophical question: Who decides when it no longer makes sense to sustain a life?
The Rasouli family was philosophical about the court’s decision to hear the appeal, noting that the case has grown to embrace far more than the fate of just one man.
“I am proud that my father’s case will be heard and will settle the law on the issue of the end of life for all Canadians,” said Mojgan Rasouli, Mr. Rasouli’s daughter.
Mr. Rasouli, whose brain was largely destroyed by a post-surgery infection, receives round-the-clock care: A mechanical ventilator does his breathing, a tube inserted into his stomach provides nutrition and fluids, while a catheter drains his urine. Medications maintain his blood pressure and he must be turned to prevent bed sores. Nevertheless, the family is convinced Mr. Rasouli is conscious and appreciative of the battle they have waged on his behalf.
Flanked by her mother and brother, Ms. Rasouli said that her father “talks with his eyes. When we show him his favourite videos and photos, I see movement in his face. He is a human being. He is not in a vegetative state.”
A lawyer for the doctors, Harry Underwood, is asking the Supreme Court to confirm that it is a doctor’s decision as to whether to offer treatment or continue to offer it, based on an incapable patient’s best interests. He does not see the issue as being one of informed consent.
Hilary Young, a Queen’s University law professor with expertise in end-of-life issues, said there is an urgent need for the courts to clarify who has the final say on withholding a patient’s life-sustaining treatment – doctors or families.
“The Supreme Court needs to decide if patients or their substitute decision-maker can unilaterally demand life-sustaining treatment no matter how futile or expensive,” Prof. Young said. She added that the court would be wise to strike a balance between factors such as the patient’s wishes and values, what is medically indicated, and the best use of scarce resources.
When the Ontario Court of Appeal heard the case last year, it upheld a lower court ruling saying that, in cases where death is imminent and doctors propose to withdraw life support and replace it with palliative care, that care becomes part of a treatment package for which consent is required from a patient or substitute decision maker.
Several months later, the doctors’ appeal of that ruling was thrown into doubt when Mr. Rasouli gave a “thumbs up” gesture to verbal requests from his wife, Parichehr Salasel.