An important decision regarding end of life matters was rendered by the Supreme Court of Canada today in Cuthbertson v Rasouli. Speaking for the 5-2 majority, Chief Justice Beverley McLachlin stated that withdrawal of life support is considered “treatment” under the Health Care Consent Act. For that reason, consent to withdrawal of life support (in this case, mechanical ventilation and artificial nutrition/hydration) must be obtained from the patient’s substitute decision-maker. A physician who disagrees with the substitute decision-maker cannot withdraw the treatment but instead must place the matter before the Consent and Capacity Board rather than the courts.

The patient, Hassan Rasouli, has been on life support at Sunnybrook Health Sciences Centre since 2010; he developed bacterial meningitis after undergoing surgery for a benign brain tumour. His physicians concluded that he was in a persistent vegetative state with no possible chance of recovery. More recent neurological assessments deemed Mr. Rasouli to be in a “minimally conscious state”.

Parichehr Salasel is her husband’s substitute decision-maker under the Health Care Consent Act. As his litigation guardian, she also launched a successful court action to stop Mr. Rasouli’s physicians from removing Mr. Rasouli from life support, a decision which was appealed by his physicians. The Ontario Court of Appeal dismissed the appeal on the basis that the two treatment decisions (withdrawal of life support and the subsequent administration of palliative treatment) are a linked “treatment package”, for which consent is required.

The Supreme Court decision upholds the finding that consent is required for withdrawal of life support as well as for administration of palliative treatment, based on the “treatment package” analysis. Withdrawal is “treatment” based on the broad manner in which the Act defines that term, as being anything done for a “health-related purpose”. It concludes that the physicians’ only option, if they believe that Mr. Rasouli’s substitute decision-maker is not acting in his best interests, is to make a Form G application to the Consent and Capacity Board. The Board would then decide whether the substitute decision-maker is acting in the patient’s best interests according to criteria under the Act. The Supreme Court decision is clear: if the Board agrees with the physicians that the substitute decision-maker is not acting in the patient’s best interests, it may substitute its opinion for Ms. Salasel’s and clear the path to withdrawal of life support. The Court also pointed to the expertise of the Board in deciding such matters, which it noted will lead to consistency and certainty in the application of the Act.

By contrast, the dissenting opinion of Justice Karakatsanis’ (Abella J. concurring) held that the Legislature did not intend for the Act to apply to the withdrawal of life support, nor do patients and substitute decision-makers have the right to insist on continuation of treatment that is “futile, harmful, or contrary to professional medical standards of care”. It further identified the courts, rather than the Board, as the appropriate forum for these deliberations.

Consent, capacity and substitute decision-making are an increasingly challenging area of law, particularly at the end of life. This case reinforces the inherent tensions that arise when health practitioners and patients and their substitute decision-makers disagree about what would best serve the patient.

Contact Mary Jane Dykeman at mjd@ddohealthlaw.com or (416) 967-7100 ext. 225 on matters relating to consent, capacity, substitute decision-making and end of life.