Doctors have the right and the ethical responsibility to pull patients off life support if they decide treatment is futile – and should not need patient or family consent to do so, lawyers for two doctors at Toronto's Sunnybrook Hospital will argue in Ontario's highest court.
The Court of Appeal's decision will not only determine the fate of a man who has been comatose in a Toronto hospital for most of the time since he moved to Canada from Iran, it could have wide-ranging implications for the ability of patients to determine the course of their treatment and the right of medical professionals to make those decisions.
Drs. Brian Cuthbertson and Gordon Rubenfeld will be in court Wednesday appealing a ruling from Madam Justice Susan Himel of the Ontario Superior Court of Justice that they cannot take the comatose patient off life support against his wife's wishes unless they get approval from Ontario's Consent and Capacity Board.
Hassan Rasouli, a 59-year-old retired mechanical engineer who immigrated to Canada with his wife last spring, had surgery at Sunnybrook in October, 2010, to treat a benign brain tumour. He developed meningitis and ventriculitis afterward and has been in a coma ever since – kept alive by a ventilator and a feeding tube.
By November, the doctors felt it necessary to discontinue treatment but did not feel that decision fell under the jurisdiction of Ontario's Consent and Capacity Board, which acts as a mediator in disagreements over whose role it is to determine an individual's treatment.
Mr. Rasouli's wife, Parichehr Salasel, who was a doctor in Iran, did not agree. And she argued that the couple's beliefs as Shia Muslims dictate that Mr. Rasouli should be kept alive as long as possible. The doctors agreed not to move forward before Mr. Rasouli's family could seek a court injunction.
Judge Himel said in her ruling that two Sunnybrook neurologists had determined Mr. Rasouli is in a "persistent vegetative state" and has irreversibly lost consciousness. Keeping him alive artificially would only mean a slow death "from one of the many complications … related to being permanently confined to a hospital bed."
Judge Himel decided in March that the definition of treatment includes the withdrawal of life support – and that it is within a patient's rights to refuse that withdrawal. If the doctors disagree with Ms. Salasel's desire to keep her husband on life support, Judge Himel ruled, they would have to take their case to the Consent and Capacity Board.
The doctors' lawyers will argue that laws surrounding consent to treatment don't apply because the issue is withdrawing treatment, not giving it without permission: "If a person is to receive life support against medical advice," they contend in a factum to the court, "it must be on account of a legal duty on the part of the doctors to provide it." And that duty is based on the benefit the treatment gives the patient – regardless what the patient or his surrogate thinks.
"The law as it applies to treatment provided at the end of life is no different than the law that applies to treatment provided at any other time in a person's life," the factum states.
In other words, said Arthur Schafer, director of the University of Manitoba's Centre for Professional and Applied Ethics, a patient has no more right to request life support that doctors think is futile than he or she would to demand antibiotics, surgery or any other treatment a doctor decides would do no good.
But the doctors' legal opponents argue this would set a dangerous precedent.
"This is, to my knowledge, the first time that physicians have come to court saying it's not necessary for them to obtain consent in these circumstances to terminate life support," said Gary Hodder, the lawyer for the Rasouli family.
Mark Handelman, a lawyer arguing for the Euthanasia Prevention Coalition, an intervenor in the appeal, argues the issue is ultimately who gets to decide whether treatment is "futile" and what recourse people have if they disagree with a loved one's treatment.
Prof. Schafer notes that the case also hinges on who is best positioned to make decisions on a patient's behalf – people acting for the patient or the medical professionals ostensibly in charge of his or her care.
"We know you have the right to say 'No' " to treatment, Prof. Schafer said. The question in this case "is whether you have the right to demand 'Yes.' "