OTTAWA – The Supreme Court of Canada has dismissed an appeal that would have permitted doctors to end life support for a severely brain-damaged man without the consent of his family or a substitute decision maker.
The ruling effectively upholds existing legislation in Ontario and several other provinces that says disputes over end-of-life care decisions must go to an independent tribunal for resolution — and are not the sole purview of either doctors or of patient’s families.
In a split decision on what the top court called a “tragic, yet increasingly common conflict,” Chief Justice Beverley McLachlin wrote for the majority that, under Ontario’s Health Care Consent Act, treatment cannot be confined to something that doctors consider to be of medical benefit to the patient.
“If death is considered harmful or a manifestation of ill health, then life support serves a preventive purpose so long as it is effective in preventing death,” the court dryly observed.
The case involves 61-year-old Hassan Rasouli, who has been kept alive on a ventilator and feeding tube since brain surgery in 2010 went wrong.
Doctors at Toronto’s Sunnybrook hospital have determined there is no therapeutic hope of recovery and that keeping Rasouli on life support will result in a series of progressively worse medical complications as his body deteriorates.
However Rasouli’s wife, Parichehr Salasel, refused consent to end life support, citing the couple’s Shia Muslim religion and a belief that her brain-damaged husband’s movements indicate some level of minimal consciousness.
Salasel screamed in approval when the decision came through Friday, saying she was “happy for all humans,” not just for her husband, who she said shows clear signs of consciousness.
Physicians involved in the case had argued that consent under Ontario’s 1996 consent act was not required, because withdrawal of life support does not provide any medical benefit to the patient. For the same reason, they felt the decision was not subject to the independent tribunal process set up under the Ontario law.
Two lower Ontario courts disagreed and the Supreme Court, in a 5-2 ruling, upheld those lower court rulings.
McLachlin noted that the case revolves around a statutory interpretation of Ontario’s consent act. Similar legislation exists in at least five Canadian provinces.
She wrote the case does not resolve who should have the ultimate say in end-of-life decisions in the absence of such legislation.
“Nor does the case require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physician’s interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed of little or no value,” McLachlin cautioned.
Justice Andromache Karakatsanis, in a dissenting opinion, found that Ontario’s Health Care Consent Act does not “give patients, or their substitute decision-makers, the right to insist on the continuation of treatment that is futile, harmful, or contrary to medical standards of care.”
McLachlin gave a lengthy response in the judgment to the dissenting opinion, noting that the ethical dilemma of doctors who feel they are doing more harm than good by continuing life support cannot be avoided.
“Wherever one draws the line, it is inevitable that physicians will face ethical conflicts regarding the withdrawal of life support,” said the judgment.
“No legal principle can avoid every ethical dilemma.”
The Rasouli case, in some respects, comprises a mirror image of the assisted suicide debate that has once again become the focus of public attention.
Last week, British Columbia’s Court of Appeal overturned a lower court and upheld a ban on physician-assisted suicide, likely meaning the Supreme Court of Canada will again be grappling with the issue in the near future.
And last month, a video by renowned microbiologist Dr. Donald Low put a poignant human face on the issue.
Low, who became known across Canada for his work during the 2003 SARS crisis in Toronto, appealed from death’s doorstep for terminally ill patients in pain to be able to die with dignity.
He died from a brain tumour just days after appearing in the video.
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