The Supreme Court of Canada is set to create a blueprint for right-to-live cases Monday with just seven judges in attendance.
While the court does not release a list of presiding judges in advance, one of the its newest members – Mr. Justice Michael Moldaver of the Ontario Court of Appeal – cannot sit on the historic case because he helped write the judgment under appeal.
The case involves Hassan Rasouli, a 61-year-old, retired engineer who has been in a near-vegetative state at Toronto’s Sunnybrook Health Services Centre for almost two years.
The Supreme Court habitually attempts to provide the strongest possible guidance in key cases by sitting as a full panel of nine. However, Chief Justice Beverley McLachlin is virtually certain to exclude a second judge in order to avoid the possibility of a 4-4 tie vote on the outcome.
Doctors at Sunnybrook have been trying to withdraw life support without the Rasouli family’s consent so that Mr. Rasouli can die. They believe he has no hope of recovery and can only be harmed by further treatment.
However, the Rasouli family has opposed their efforts at every turn. They insist that Mr. Rasouli can communicate and may partially recover from a post-surgery infection that devastated his brain.
At the extreme edges of the case, the court could side with the doctors and given them unilateral power to withdraw life support, or it could conclude that the family must give their consent before doctors can allow Mr. Rasouli to die.
In between those poles are a handful of options that centre on the intervention of impartial arbiters.
Ordinarily, an impasse between doctors and a family in Ontario are resolved by a provincial Consent and Capacity Board.
However, many doctors object to the fact that the board is composed only of lawyers, psychiatrists and community members. Thus, another alternative the Supreme Court could potentially reach for is to recommend consent and capacity boards that include a strong component of physicians who are experienced in intensive care treatment.
The court system furnishes a third option. However, court processes tend to consume an inordinate amount of time and judges rarely welcome the obligation to decide right-to-die litigation.
“I think the worst outcome would be for these things to go to court,” said Dr. Anand Kumar, a Winnipeg intensive care physician. “Clearly, the courts don’t want to deal with them. I’d be perfectly happy with a consent and capacity board that has some physicians on it.
Dr. Kumar estimated that approximately half of the country’s doctors would be satisfied with decision residing with such a board.
Meanwhile, lawyers who work with disabled or elderly clients are looking to the Supreme Court to bring clarity to an uneven, emotionally-fraught area of law.
Jan Goddard, a Toronto lawyer who specializes in the field, said there has been a strong move toward the creation of documents that express peoples’ wishes for how they should be treated if they lose their capacity for decision-making.
However, she said that the Sunnybrook doctors threw a curve ball at these efforts. “What they tried to do was outside of the expectations of most of us,” Ms. Goddard said.
“Termination of treatment that supports life is probably the issue most commonly raised by clients making advance directives,” she said. “I wonder what those conversations might be like between lawyer and client, or a person and his or her substitute, if the court agrees with the doctors’ position that consent is not required?”
A legal intervener in the case, The Canadian Critical Care Society, maintains that doctors must have the power to discontinue any treatment that is futile or even harmful to a patient.
Critical care treatment should only be given when it may alleviate an illness or provide some permanent benefit, it said in a written brief. “When there is no hope of either, critical care will only result in needless suffering.”
However, another intervener, the Canadian Association of Critical Care Nurses, argues that doctors alone cannot make the unilateral decision to withdraw life support. In a written brief, they propose that disagreements between doctors and a patient’s family should be settled in the courts.
Gary Hodder, a lawyer for the Rasouli family, said that the state of Mr. Rasouli’s health ought to not be a key factor in the appeal.
“This case is about what process we should follow,” Mr. Hodder said in an interview. “Mr. Rasouli cannot decide for himself, so somebody has to decide for him. Our position is that, in Ontario, we have a statute that says how that decision should be made – and the case is no more complicated than that.”
That statute – the Health Care Consent Act – assigns the Consent and Capacity Board to make those decisions.
“We do not presume to know who the board would rule in this case, but we do think it’s the place where this should properly be argued,” Mr. Hodder said.
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.
Mr. Rasouli, whose brain was largely destroyed by a post-surgery infection, receives around 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 that Mr. Rasouli is conscious and appreciative of the battle they have waged on his behalf.
While all parties to the Rasouli case have all shied away from the question of resources expended on end-of-life care, few dispute that it is an important consideration for any hospital.
However, Dr. Kumar said the biggest question for him involves his oath to do no harm to a patient.
“To do an adequate job, you have to be psychologically invested in it,” he said. “Yes, I could probably come by Mr. Rasouli’s bed every morning and change the ventilator or start some antibiotics – if I could put away my ethical qualms. But as he deteriorates and I have to be at the bedside every 15 minutes, I have to be engaged in it.
“I can’t be engaged when I know there is going to be death, no matter what I do,” Dr. Kumar said.
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.