On December 22, 2011, the Supreme Court of Canada agreed to hear the case of Cuthbertson and Rubenfeld versus Hassan Rasouli. The appellants, Drs. Brian Cuthbertson and Gordon Rubenfeld) are Mr. Rasouli’s physicians.
The question before the court is whether physicians must seek approval from a legislatively created board of review before withdrawing a patient from life sustaining treatment. The statue was passed for a variety of reasons, including establishing a uniform standard of practice for the protection of patients across the country.
The review by the Consent and Capacity Board is only required if there is some objection by the surrogate decision maker. If the decision maker objects, he or she is required to follow principles of acting in the patient’s best interest as set forth in the “Health Care Consent Act.”
“…a health practitioner … may believe that the SDM (substitute decision maker) is not following these principles. If this happens, that person may apply to the board for a determination as to whether the principles have been followed and order to the SDM to comply with the act. Use of this application is limited to the health care provider of the incapable person (e.g. family members cannot apply to the board). Whenever an application of this type is received, the law provides that the patient is deemed to have applied for a review of his or her capacity to make the relevant decision…”
Purpose of the Health Care Act:
As a set forth in the appellate decision, the purpose of the Health Care Act is to establish rules that can be used consistently in all settings; provide and facilitate treatment, admissions, and other assistance for persons who lack capacity; and ensure a significant participation of family members when the person lacks capacity to make decisions.
The Consent and Capacity Board is an independent provincial tribunal created to adjudicate issues of consent in capacity and whether or not the substitute decision maker is acting in accord with the patient’s wishes or in his or her best interest.
- There is no charge to the participants
- Any party may attend
- Family members and friends are also encouraged to attend.
- Each party may have a lawyer, call witnesses and bring documents.
- Each party, and the board members, may ask questions of each witness.
- Thereafter, the board meets in private to make a decision.
- The board will issue its decision within one day.
- Written reasons will be issued if any of the parties request them.
Drs. Cuthbertson and Rubenfeld argue that the patient is in a persistent vegetative state and other physicians have examined Mr. Rasouli and agreed with this assessment.
They want to take him off life support and provide palliative care until he dies.
The decision maker argues that he is minimally conscious and remains aware of his surroundings and that if the physicians do not want to follow her wishes that they should apply to the Consent and Capacity Board and let the board decide whether the proposed course of action is in the respondents best interest.
A three day hearing was held in the Canadian Superior Court of Justice in February and March of 2011. The court found in favor of the respondent (Rasouli) and against the appellants Cuthbertson and Rubenfeld.
The court ordered that the question of continued life sustaining treatment must be referred to the Consent and Capacity Board, and, pending that decision the physicians were not permitted to withdraw or withhold life sustaining treatment nor place the patient in palliative care.
Rather than doing so, Cuthbertson and Rubenfeld brought their case to the Court of Appeals (Court of Appeal for Ontario, original case Rasouli versus Sunnybrook Health Science Center, 2011 docket number C53442).
Indeed, if they are wrong the patient will be dead.
Cuthbertson and Rubenfeld make two arguments to avoid compliance with the law:
1. “…if it is found that their decision to withhold or withdraw treatment falls below the requisite standard of care, they may be held accountable.” (Page 7 of the appellate decision). Indeed, if they are wrong the patient will be dead. The standard as set for the by the Canadian legislature, is to seek approval from the Board. The legislation protects physicians from being held liable:
If a treatment is withheld or withdrawn in accordance with a plan of treatment and with a consent to the plan of treatment that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for withholding or withdrawing the treatment.
2. Cuthbertson and Rubenfeld argue that withdrawing life sustaining care and prescribing a shift to palliative care is not “treatment” and that, therefore, no consent is needed to withdraw life sustaining care. Putting Mr. Rasouli on life support was a treatment decision and taking him off life support is a treatment decision, just as much as prescribing a medication for a patient and stopping the medication because it is not working.
Part 2 of this article will discuss the relevant ethical basis, legal reasoning and competing moral viewpoints.