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legal affairs

Parichehr Salasel, wife of Hassan Rasouli who has been in a coma since undergoing brain surgery in October, photographed while visiting her husband at Sunnybrook Hospital in Toronto Nove. 29, 2011.Fernando Morales/The Globe and Mail

The debate over whether doctors need consent before taking a patient off life support will be heard by the Supreme Court of Canada.

The country's top court has granted leave to appeal to the doctors of Hassan Rasouli, a man who has been in a coma at Toronto's Sunnybrook Health Sciences Centre since October, 2010. His doctors diagnosed him as being in a "permanently vegetative state" and recommended he be taken off life support, but his wife and substitute decision-maker, Parichehr Salasel, strongly opposed. Now the doctors have turned to the Supreme Court in hopes of disconnecting Mr. Rasouli from the medical machines that are keeping him alive.

The outcome of the case could set a national precedent on protocol for end-of-life care when physicians and families don't see eye-to-eye. The issue is fraught: Medical technology can now keep patients technically alive, so their loved ones sometimes keep them connected to machines for months or years, even when doctors advise against it. It's even more contentious in a public health-care system, since health professionals must also consider the best way to allocate resources.

In this case, Mr. Rasouli's family members believe he will recover – and even say they've noticed improvement in his condition in recent months – while his doctors, Brian Cuthbertson and Gordon Rubenfeld, believe he "is not receiving any medical benefit from being kept on life support," according to court documents.

In June, the Ontario Court of Appeal upheld a lower court's decision that Mr. Rasouli's doctors would have to obtain consent from his family before administering palliative care. Since disconnecting a ventilator would be part of that "treatment package," they would need consent to take a patient off life support, too. Without consent from Mr. Rasouli's family, they'd have to leave the decision to a provincial tribunal – the Consent and Capacity Board – which makes decisions on behalf of individuals who are unable to speak or act for themselves.

Either way, the Supreme Court's decision will have a major impact on the country's doctors, medical ethicists, lawyers and, of course, families of patients. As it stands, all provinces but New Brunswick require consent from the patient or substitute decision-maker for medical treatment, and Ontario is the only one with a tribunal that makes decisions on a patient's behalf.

"This is of great societal importance that we get this right," said Daren Heyland, a professor of medicine at Queen's University in Kingston and the director of Canadian Researchers at the End of Life Network. He said he's "glad, if not excited" that the case will be heard by the Supreme Court.

"Right now [health care professionals are]being constrained to being only informants and not decision-makers. The pendulum has swung to the family making demands that at many, many levels are unrealistic or illogical or even futile," Dr. Heyland said.

But Mark Handelman, a lawyer for the Euthanasia Prevention Coalition, says taking these decisions to court is more expensive and less efficient than leaving them to the Consent and Capacity Board. In his ideal world, everyone would discuss end-of-life care with their families while they were still well enough to do so.

"But given the impossibility of that, I think a tribunal of this nature is useful everywhere," he said.

Harry Underwood, lawyer for Drs. Cuthbertson and Rubenfeld, said his clients did not want to comment on the case to the media.

The legal battle the family has waged with the doctors has been financially and emotionally draining, said Mojgan Rasouli, Mr. Rasouli's 28-year-old daughter. "You have your father in hospital in a very critical situation and on the other side is the legal process," she said. "It's very hard, but we've accepted it."

She said she and her family have observed Mr. Rasouli lift fingers when instructed and open his eyes when his name is called – clear signs to her that he is on the path to recovery. Expenses and emotional toll aside, she said her family is willing to be the test case if it means helping future patients and families who grapple with the same issues.

Her father is unable to speak for himself, but she believes this is what he wants.

"It's in my father's best interest that he would like to be alive," she said.