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Tuesday, May 17, 2011

Court of Appeal to decide if docs can stop treatment without patient consent

Ontario's Court of Appeal has been asked to decide whether doctors and hospitals can withdraw life-sustaining treatment, against the wishes and consent of patients and their families, without going to the Consent and Capacity Board (CACB).

Sunnybrook Hospital and the doctors of Hassan Rasouli, a 59-year-old engineer in what the doctors describe as a PVS state, argue that they should only have to go to the CACB when the patient wants to refuse treatment recommended by doctors. The hospital and doctors don't think they should have to go to the CACB when the patient and family want to continue treatment against the advice of their physicians, where the physicians perceive the care to be futile or of no benefit.

The word "futile" is a contentious one. An article appearing in the Canadian Medical Association Journal in 2007 defines medically futile care as "the use of considerable resources without a reasonable hope that the patient would recover to a state of relative independence or be interactive with his or her environment." The authors found that "pain and suffering would not be essential to the definition" and that attempting to generate a consensus definition of futile care would "itself have been futile" because "previous investigators have been unable to establish a universally accepted threshold for futility and physicians cannot predict the probability of success for an individual patient with any precision."

The Rasouli case could set a precedent for a much broader group than PVS patients. The arguments by the hospital and doctors, that the medical community be empowered as the final arbiter of benefit, without access to the CACB, has the potential to affect the autonomy and access to treatment of people with disabilities and seniors (who may not be able to live independently), some cancer patients and others who may want to continue treatment even when the chance of success is low.

Determination of benefit may also be affected by financial pressures on the healthcare system. The CMAJ article states that "the scarcity of such resources is a major driver behind the futility debate..."

In the Rasouli case, Sunnybrook Hospital and the doctors involved opted not to go to the CACB when they were unable to to get the consent of the patient's family to withdraw life support. The family filed an injunction in Superior Court.

In March, Justice Himel decided in favour of Rasouli's family on the matter of the Health Care Consent Act, ordering the hospital and doctors to take the case to the CACB.

The doctors want the Court of Appeal to overturn this decision and to allow doctors to use the end-of-life policy of the College of Physicians and Surgeons (CPSO). The CPSO policy indicates that physicians should secure the consent of a patient or substitute decision maker, but it doesn't make it mandatory. The policy also permits doctors to refuse or stop treatment in cases where doctors determine that treatment is of no benefit and falls outside the standard of care. This CPSO policy is up for review in 2011.

The hospital and doctors are also asking that they be absolved of criminal and civil liability for their decision.

Mark Handelman, the lawyer for the Euthanasia Prevention Coalition, which is intervening in the case, calls this the most important health care case ever in Ontario and he says the decision will likely ripple across the country.

Handelman says that what doctors are asking for is a "declaration that they not require consent to discontinue treatment that in their view is not medically indicated." He says that a decision in the doctors' favour would be applied very broadly. He expects that if the doctors lose, the case will go to the Supreme Court.

Harry Underwood, the lawyer representing the doctors in the Rasouli case, called this appeal "very significant".

The Court of Appeal will be hearing the Rasouli case on May 18 and a decision is expected shortly.


  1. My family knows my wishes. I've seen enough hospice clients to understand futility. I don't want extreme measures, I don't want life support. If they pull the plug and I keep going, great.
    It's about quality of life.
    If another person could benefit, and my case is deemed futile by physicians, then I would rather another person has life-saving treatment.
    We over-medicate, over treat, over test in Canada. This is why wait times are long and ALC cases exist.
    I've seen people lingering and it is not pretty.

  2. It is important for all of us to communicate our wishes to our loved ones in a way that they understand.

    There are many sides to this story, and much of it has to do with informed choice.

    It is true that we over-medicate, over-treat and over-test. But it's also true that others have great difficulty accessing timely and appropriate care. And others are kept waiting so long that their condition degrades to one which might be considered futile.

    We must be mindful of maintaining a system where there is an incentive to expedite care, rather than the option of just waiting until it is too late.

    We must also be mindful of our civil liberties, including access to justice.

    Also, as described above, futility is not clearly defined. Without an independent arbiter, there is some risk that one person's definition of futility does not match another's.

    This is a complex issue with many sides which is what makes it particularly interesting. We know our healthcare resources are limited. But do we decide that the life of a person whose disability renders them dependent is of less value than a successful professional? How will these decisions be made? And should they be made by the courts or the legislature?

    Or do you believe they should be made at night by medical residents in an overcrowded hospital, with no oversight?

  3. Im glad that I came across this when I did. I love what youve got to say and the way you say it.
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  4. Some people in Saskatchewan are pushing for this, particularly doctors. I think it is a money-saving move.

  5. The Court of Appeal agreed with the lower court in siding with the family in this case and ordered the doctors to take the family to the Consent and Capacity Board if they want to remove life support against the family's wishes.

    The doctors have filed for leave to appeal to the Supreme Court of Canada (SCOC). The SCOC is currently considering whether they will hear the appeal.

    If the SCOC does hear the appeal, then it will affect patients and families across the country, including in Saskatchewan.