Pat Murphy and George C. Webster believe the SCC Rasouli decision provides guidance for much needed public discourse.
In these early days following the release of the Supreme Court of Canada’s decision to dismiss the appeal in Cuthbertson v. Rasouli, it is likely that public reaction will, in some measure, reflect the difference and debate embedded in the case itself. Some will characterize the decision as a much-desired affirmation of the need to provide a robust system of public review and adjudication when doctors and patients, or their substitute decision-makers, disagree about the use of life-sustaining treatment. Others will characterize the decision as both an affront to the professional integrity of physicians and a worrisome capitulation to an ethos of unfettered patient entitlement.
Briefly, what happened in Rasouli? In October of 2010, Mr. Hassan Rasouli underwent surgery at Sunnybrook Health Sciences Centre to remove a benign brain tumour. Post-operatively, he developed complications that caused severe, widespread brain injury. Initially, Mr. Rasouli was believed to be in a persistent vegetative state. Later, he was diagnosed as minimally conscious.
Mr. Rasouli’s physicians wanted to discontinue mechanical ventilation and to offer palliative measures only. Ms. Parichehr Salasel (Mr. Rasouli’s wife, litigation guardian and substitute decision-maker) disagreed. She wanted life-sustaining measures to be continued. She was also of the view that the proposed withdrawal of treatment should be reviewed by the Consent and Capacity Board, the legislated review process outlined in Ontario’s Health Care Consent Act.
The physicians did not think it necessary for the Consent and Capacity Board to review their proposal to withdraw treatment. Instead, they applied for a declaration that the decision to withdraw treatment, in this particular instance, was a medical decision and that consent of the patient’s substitute decision-maker was not required.
In March 2011, the case found its way to the Ontario Superior Court of Justice. The Court determined that the physicians’ proposal to discontinue Mr. Rasouli’s life-sustaining treatment could not be taken unilaterally and must be referred to the Consent and Capacity Board. In June 2011, the Court of Appeal for Ontario upheld this ruling noting among many things that, while recourse to the Consent and Capacity Board may not be perfect from the physicians’ perspective, the process appears to have worked well in the seventeen years since the Act was introduced.The Supreme Court of Canada allowed an appeal; heard the case in December 2012; and rendered its decision in October 2013.
Rasouli, and the ever-evolving litany of other celebrated end-of-life disagreements in Canada (e.g. Lavalee, Sawatzky, Scardoni, Yeung, Jin, Golubchuk), expose human faces and stories of what death and dying have come to look like in our time. In ages past, most life-threatening illnesses were marked by rapid onset and speedy resolution – recovery or death. Recent advances in health care have radically altered this stark circumstance; the formerly bright line between life and death has vanished (Callahan, 1993).
The availability of effective life-sustaining interventions requires that explicit evaluations and judgments be made about initiating, withholding and/or withdrawing such treatments. The stage is thereby set for ethical difference regarding the right response to the care of those surviving at the brink. As a society we seem equally in awe of, and appalled by, this brinkmanship. No social consensus has yet emerged about how disputed end-of-life situations should be resolved. As well, no social consensus has yet emerged to identify what might be accepted as “reasonable” limits to the resources necessary to live at the brink.
How should these disagreements be reviewed and adjudicated? In the clinic or at the bedside, ethical tensions can be navigated to a peaceful resolution even when full agreement is not possible. This is achievable when the parties in disagreement can negotiate compromises about the goals of care, and the corresponding means of treatment
The conflicts that have flashed to public attention are characterized by seemingly intractable differences of opinion between physicians and patients’ substitute decision-makers. As a result, the public’s attention has been focused on “who” should make the decision. In search of relief or remedy, some have argued that resolution by fiat is both necessary and sufficient (Rubin, 1998). The “somebody’s got to draw a line somewhere” approach (a perspective used to support unilateral decision-making by physicians), has a certain appeal. Binary perspectives on intractable problems, however, are notoriously subject to human frailty and limitations including arbitrariness, randomness, idiosyncrasies and procedural injustice. Endless debates about “who” has the “final say” yield no real advance.
A mechanism for third party review, such as Ontario’s Consent and Capacity Board, while clearly not perfect, requires that something radical, or new, happens in a disagreement. The disputants must move beyond simply arguing from their respective conclusions. They must subject the substance of their positions to the scrutiny of an informed “other”. The critical gaze such scrutiny provides is protective of the vital interests of all parties to end-of-life care disputes including, but not limited to, their integrity interests. While such disputes are intensely private, they are also legitimate matters of public concern. For this reason, referral for review and adjudication should not be construed as inappropriate interference.
Has the Supreme Court of Canada done a good thing in Rasouli? The content and clarity of the decision provides essential guidance about profoundly human concerns that will always be fraught with complexity and uncertainty. By dismissing the option of unilateral decision-making by physicians and requiring third-party adjudication, the Supreme Court has effectively moved a contentious matter to a new and different kind of public discourse.