Requirement of Consent for the Withdrawal of Treatment: Rasouli v. Sunnybrook Hospital

One of the most interesting cases about end of life decision-making is on its way to the Supreme Court of Canada. This case is not really about advance care planning, but about whether physicians are bound to seek consent from patients or their substitute decision-makers (SDMs) before withdrawing treatment that the physicians believe to be futile, or even harmful to the patient.

The case involves Hasan Rasouli, a patient who has been in a coma, kept alive with a mechanical ventilator and feeding tube since October 2010. Mr. Rasouli’s physicians (the “Physicians”) formed the opinion that Mr. Rasouli is in a persistent vegetative state, meaning that he would never again regain consciousness. They believe that Mr. Rasouli derives no benefit from ongoing treatment, and that he will suffer a long, slow death due to the complications that can be predicted for any patient in such a state. Accordingly, the Physicians proposed to withdraw the life sustaining treatment with a ventilator, and to provide only palliative or comfort care to the patient.

Mr. Rasouli’s wife (and SDM) refused to consent to the Physicians’ proposal to withdraw treatment. She believed that the patient was indeed aware of his surroundings, and was improving. Further, Mr. Rasouli and his family are of the Muslim faith, and for this reason, contended that her faith required that care be continued until all signs of life were gone.

To prevent the withdrawal of care to the patient, Mr. Rasouli’s family applied to Ontario’s Superior Court of Justice for an injunction preventing the physicians from withdrawing life-sustaining treatment and requiring them to apply instead to Ontario’s Consent and Capacity Board (“CCB”) to determine the patient’s best interests. In response, the physicians applied to the Court for a declaration that they were not required to continue to provide treatment which is of no benefit to a patient and which falls outside the standard of care. They argued that they had no obligation to offer treatment that will not benefit the patient and that the consent of a patient in a persistent vegetative state was not required for withdrawal of treatment.

The Superior Court granted the family’s injunction and referred the case to the CCB for a determination of Mr. Rasouli’s best interests. Treatment was to be continued in the interim. The Physicians appealed that decision to the Ontario Court of Appeal, which upheld the Superior Court’s decision. The Courts held that Ontario’s Health Care Consent Act (HCCA) requires that patients or SDMs give consent to treatment including the withdrawal of treatment; it is not within discretion of physicians to seek consent. Finding that treatment or a Plan of Treatment must be proposed by health practitioner, the Courts dismissed the argument that patients could develop their own treatment plans and demand that physicians provide inappropriate treatments. The Court of Appeal characterized the removal of a patient from a ventilator and the initiation of palliative care plan as a “treatment package”, which requires consent, and held that the HCCA provided complete answer to the question of whether consent was required.

The Physicians have since appealed the case to Supreme Court of Canada, which granted leave to hear the appeal.

Lonny J. Rosen, C.S. is a Toronto-based health law lawyer and is a partner of the law firm Rosen Sunshine LLP. He is certified by the Law Society of Upper Canada as a Specialist in Health Law, and has served as the Chair of the Health Law Sections of both the Canadian and Ontario Bar Associations. He is a member of the National Advance Care Planning Task Group.

Important Reminder for SDMs
Where a patient is not capable of consenting to or refusing treatment, and his or her SDM must make the decision for him or her, the primary consideration for the SDM is whether the patient, while capable, expressed a wish that is applicable to the circumstances. If so, then the SDM must give or refuse consent in accordance with that wish, regardless of what the SDM or others view as the best interests of the patient. It is only where no wish has been expressed (or communicated to the SDM) that the SDM must decide in accordance with the best interests of the patient. While the legislation provides guidance as to how the SDM is to determine what is in a patient’s best interests, the patient’s wishes will prevail if made while the patient was capable, applicable to the circumstances and known to the SDM.