Joan Hume
In a recent landmark judgement in the Ontario Court of Appeal, judges decided that doctors do not have the unilateral right to withdraw life-support from a patient.
The decision, which could have far-reaching implications for the rest of Canada, was based on the Rasouli case in which doctors from the Sunnybrook Health Sciences Centre in Toronto sought permission from the court to remove life-support from Hassan Rasouli whom they claimed was in a persistent vegetative state with no hope of recovery.
The Rasouli family not only disagreed with the medical diagnosis but also refused permission for the doctors to remove Mr Rasouli’s ventilator and feeding tube. The Rasoulis, originally from Iran, argued that removing his life support would violate his religious beliefs as a Shia Muslim. Furthermore, Parichehr Salasel, Mr Rasouli’s wife, was a doctor herself and maintained that her husband, who had contracted bacterial meningitis after surgery to remove a brain tumour, was still able to communicate with her and was making some progress in his recovery.
The saga began in October 2010 when Hassan Rasouli, a 59 year old mechanical engineer, attended Sunnybrook Health Sciences Centre for surgery to remove a benign brain tumour. Following the operation, he developed bacterial meningitis and ventriculitis (inflammation of the ventricles of the brain). The infection caused a severe brain injury as well as damage to the brain stem and the spinal cord causing Mr Rasouli to lapse into a coma thereby requiring ventilator support and a feeding tube inserted into his stomach.
After five examinations, Mr Rasouli’s doctors Cuthbertson and Rubenfeld decided that he was in a persistent vegetative state and that they would withdraw all treatments, including ventilation. This action would inevitably result in Mr Rasouli’s death. Mrs Rasouli refused to consent to this course of action.
The doctors responded by attempting to have Mr Rasouli transferred to another Toronto hospital. Mrs Rasouli then applied to the court for an injunction to prevent the hospital and the doctors from withdrawing her husband’s life support. She believed that her husband still showed signs of movement and awareness of his surroundings. The family’s religious beliefs valued respect for, and the preservation of life until all obvious signs were gone.
On the other hand, Doctors Cuthbertson and Rubenfeld asserted that they were not obliged to continue to provide treatment which they thought had no benefit even if the patient or his substitute decision –maker did not consent. In short they insisted on their right to withdraw life-sustaining treatment without consent.
The case was initially heard in February/March 2011 by Justice Himmel of the Superior Court of Justice, Ontario. She concluded that an injunction was unnecessary because the doctors were obliged to seek consent for their actions through the Consent and Capacity Board * if the substitute decision maker would not consent to withdrawal of life support.
This decision was appealed by Sunnybrook Hospital and the doctors. The Court of Appeal, however, upheld Justice Himmel’s decision on the 29th June 2011 maintaining that the withdrawing of life-support constituted “medical treatment” and required the consent of the patient’s family. This ruling means that doctors will not have the sole right to decide end-of-life decisions but will need to consult the family and the Consent and Capacity Board.
* The Consent and Capacity Board is a group of lawyers, psychiatrists and citizens in Ontario who are appointed in the province to resolve disputes such as the Rasouli case between the doctors and the family. Ontario is the only province in Canada with such a jurisdiction which usually deals with cases within a week after application.
