Catherine Deans and Colleen Flood consider the impacts of what the Supreme Court avoided in the Rasouli decision.

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The Supreme Court of Canada has now released its judgment in the Rasouli proceedings with striking differences between the majority and minority decisions. Mr Rasouli was diagnosed as being in a permanent vegetative state and his treating physicians, believing he had no further prospect of recovery, wished to withdraw life support. The applicability of Ontario’s Health Care Consent Act was at the heart of the Supreme Court decision and, more specifically, whether the withdrawal of life support was “treatment” requiring the consent of Mr. Rasouli’s wife (who opposed withdrawal). The challenge for the Court was to strike a balance between clinical autonomy and patient autonomy and, through this, show respect for the beliefs and values of Mr. Rasouli and his family.

The majority judgment at the Supreme Court, penned by Chief Justice McLachlin found that “treatment” under the Health Care Consent Act is not synonymous with “medical benefit”. Life support can be fitted into the category of “other health related purpose” such that withdrawal of life support requires consent of the patient’s substitute decision-maker. The majority argued this finding supported the objectives of the Act, namely it promoted consistency, protected patient autonomy and provided a meaningful role for the patient’s family. If, however, consent is not forthcoming and the physicians believe that further life support is medically inappropriate, they can apply to Ontario’s Consent and Capacity Board for a determination.

If an incapable patient’s prior wish is known relating specifically to the administration of the treatment in question, then the Board must decide in accordance with that wish. However, where there is no evidence of a prior wish, as was the case with Mr. Rasouli, the Board will consider, on the available evidence, what is in the best interests of the patient and may override the substitute decision-maker’s refusal to consent.

The majority decision, in our view, appropriately resolves the process in the context of end-of-life decision-making by referring an impasse between physicians and patients to a third-party decision-maker (leaving aside reservations expressed about the institutional competence of the Board). An expert administrative board can provide an accessible forum to weigh both professional and patient autonomy. However, in affirming that “withdrawal of treatment may sometimes, although not always, constitute ‘treatment’” the majority left open the possibility that consent for withdrawal (and possibly withholding) of treatment may require consent in situations outside of the end-of-life context. The majority tries to limit this “possibility” by stating that Rasouli does not stand for the broader proposition that consent is required for withdrawal of medically futile treatment. But if medically futile care may sometimes constitute “treatment” for the purposes of the Health Care Consent Act at end-of-life then there is no principled basis for contending that it could not constitute “treatment” in other contexts as well.

The two minority judges (Karakatsanis J. with Abella J. concurring) were not convinced the Health Care Consent Act governed the question of whether physicians could unilaterally withdraw life support. Nor were they convinced that the Consent and Capacity Board would be an adequate venue to resolve this question. Consequently, the minority turned to the common law for answers, finding that a patient cannot insist on the administration of treatment if the clinician believes it is medically inappropriate; to do so would be to diminish professional medical standards and professional ethics. However, in their view, this does not mean that patients’ interests would be unprotected. A substitute decision-maker could always apply to the court to challenge the physician’s decision, or file claims for medical malpractice and breach of fiduciary duty. In practice, however, this might not be much of a remedy for many vulnerable patients and families. Moreover, the temporal aspect of long-winded litigation suggests that a revamped third party decision-maker, like the Consent and Capacity Board, with sufficient resources to make decisions quickly would be a far better policy option.

In short, the Supreme Court has provided some clarity regarding how to approach the question of end-of-life treatment when physicians and substitute decision-makers disagree, but simultaneously it has layered on confusion regarding the question of whether consent is required to withdraw futile care more generally. Further, lurking in the background and assiduously avoided by all is the elephant of resource allocation. Hard math is not required to realize sustaining Mr. Rasouli’s life is an expensive endeavour and resources assigned to his care could be diverted for useful purposes elsewhere.

Mr. Rasouli’s wife states that their religion underscores her certainty that her husband would want his life maintained albeit from the perspective of some there is no quality to his life. The right to religious freedom is a fundamental right in the Charter. However, the Supreme Court has previously made it clear in Adler v Ontario that the state cannot be expected to subsidize the economic cost caused by an individual’s exercise of religious freedom. In our view, the question of cost, which both judges and legislatures alike wish to avoid, is as legitimate a factor to consider as clinical and patient autonomy. Everybody would prefer to avoid this conversation but it is one that needs to be had. Patient values, physician values and societal values (including the costs of care) need to go into the melting pot of decision-making. Hopefully the Rasouli case will inspire other provincial and territorial governments to clearly empower agencies similar to the Consent and Capacity Board to make these hard calls on our behalf.

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Catherine Deans is an LL.M. Candidate, at the University of Toronto, Canada
Colleen M. Flood is Professor, Faculty of Law & the School of Public Policy, University of Toronto, Canada.