In October, the Supreme Court of Canada released its much anticipated decision in Cuthbertson v. Rasouli (“Rasouli”).[1]  In Rasouli, the Court was asked to determine whether the statutory framework governing consent to medical treatment in Ontario applied to a decision to withdraw life support.  Specifically, the physicians of Mr. Rasouli, the patient at issue in this case, took the position the withdrawal of his life support did not constitute “treatment” for the purposes of Ontario’s Health Care Consent Act (“HCCA”) and, on that basis, consent was not required.[2]  However, in a 5-2 split, the majority of the Supreme Court disagreed with this position and ultimately held that the HCCA applied to this scenario, with the consequence being that consent had to be obtained.  Further, because the HCCA regime applies, any dispute regarding consent is to be addressed by the Consent and Capacity Board.

Background

This case was commenced by Parichehr Salasel regarding medical care being provided to her husband, Hassan Rasouli.  In October 2010, following surgery, Mr. Rasouli developed an infection that led to severe brain damage.  He had been unconscious and on life support since that time.  After exhausting all treatment options, Mr. Rasouli’s physicians concluded that Mr. Rasouli is in a persistent vegetative state with no hope for medical recovery.  Accordingly, they believed that continuing to provide life support to him would not yield any medical benefit and may, in fact, cause Mr. Rasouli harm.  On that basis, they recommended to Ms. Salasel that her husband be removed from life support and provided with only palliative care.

Parichehr Salasel is Mr. Rasouli’s substitute decision maker (“SDM”) under the HCCA.  The HCCA is a framework governing consent to medical treatment in Ontario.  Medical caregivers generally must obtain consent for the administration of medical treatment and the HCCA sets out the requirements relating to such consent for both capable and incapable (those lacking capacity to provide informed consent) patients.  With respect to incapable patients, such as Mr. Rasouli, the HCCA stipulates that a SDM must consent to all “treatment” in accordance with the patient’s prior expressed wishes, or, if the SDM is not aware of any prior expressed wishes, then the decision must be based on the “best interests” of the patient.[3]  If a physician believes a SDM has not acted appropriately in making a decision for the patient, that decision can be challenged before the Consent and Capacity Board (the “Board”), which is a specialized tribunal with authority to resolve disputes over the care of an incapable patient.

In this case, Ms. Salasel disagreed with the recommendation provided by the physicians to remove her husband from life support as she believed that her husband would wish to remain alive.  On that basis, she would not provide Mr. Rasouli’s physicians with consent to proceed.  The physicians’ view was that withdrawal of life support from Mr. Rasouli did not constitute “treatment” for the purposes of the HCCA and, accordingly, they did not require Ms. Salasel’s consent.  But, in light of the different views on the issue, the physicians put their plans on hold to allow Ms. Salasel to commence this matter before the courts, in which she sought an order restraining the physicians from withdrawing Mr. Rasouli from life support and directing that any dispute over her failure to provide consent be directed to the Board.  Ms. Salasel was successful before the Ontario Superior Court of Justice.  That decision was upheld by the Ontario Court of Appeal and, as described below, affirmed by the Supreme Court of Canada.

What Constitutes “Treatment” for the Purpose of the HCCA?

The primary issue in this case was the appropriate interpretation of the term “treatment” as used in the HCCA.

Medical Benefit

One argument advanced by the physicians was that the term “treatment” only refers to procedures which yield a medical benefit for a patient.  In the case of Mr. Rasouli, since the physicians had formed the opinion that life support was not providing him with any medical benefit, their position was that it did not qualify as treatment requiring consent. 

This argument was rejected by the Court.  The term “treatment” is defined in the HCCA as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose”.[4]  The Court noted that this definition does not expressly limit the meaning of “treatment” to acts that are “medically indicated” or of “medical benefit”;[5] instead, the only limitation provided for in the definition is that the act be for a “health related purpose”.  The Court concluded that, on its face, this definition would capture the “provision of life support that is effective in keeping the patient alive and forestalling death” on the basis that it arguably serves “therapeutic” or “preventative” health related purposes.[6]  The Court also concluded that limiting the term “treatment” to acts considered by the caregiver to be of “medical benefit” was inconsistent with the overall purpose of the HCCA, which aims to enhance consistency with respect to consent, protect patient autonomy, and provide family members with a meaningful role in the consent process.[7]

Withdrawal of Treatment

The physicians also argued that the term “treatment” only applied to the act of administering care, not removing it.  The Court rejected this argument on the basis that withdrawal of life support consists of a series of distinct actions, including the provision of palliative care in many cases, which individually constitute treatment for a “health-related purpose” and therefore require consent.  Specifically, the Court held:

At a minimum, if the processes involved in withdrawal of care are health-related, they do not cease to be treatment merely because one labels them cumulatively as “withdrawal of treatment”.  This applies to withdrawal of life support, as described in this case.  The reality is that in Mr. Rasouli’s situation, the distinction between “treatment” and “withdrawal of treatment” is impossible to maintain.  The withdrawal consists of a number of medical interventions, most if not all done for health-related purposes. Viewed globally, a series of distinct acts may be viewed as “withdrawal” of treatment.  But viewed individually, each act may be seen as having a health-related purpose, and hence constitute “treatment” requiring consent.[8]

Implications

Although controversial, this decision really just serves to maintain the status quo in Ontario.  As noted by the Court, “the Board has regularly exercised its jurisdiction in cases where physicians proposed to withdraw life support.”[9]  Further, it is worth noting that, to date, it has not been easy for a SDM to convince the Board that there is a proper basis for refusing to provide consent to withdraw life support.  For example, a prior wish that is “unclear, vague, or lacks precision may be held inapplicable to the circumstances”.[10]  In fact, the Court stated that it was “unable to locate any case in which there was a prior expressed wish opposing withdrawal of life support that was held to be applicable and therefore binding in the circumstances.”[11]  Further, when reviewing the analysis to be done when determining the patient’s “best interests”, the Court noted that “while the patient’s beliefs and prior expressed wishes are mandatory considerations, there is no doubt that the medical implications of a proposed treatment will bear significant weight in the analysis.”[12]  The effect of this decision was simply to confirm that, as before, in the event of a dispute, it is the Board who ultimately decides whether the facts of any given case justify withdrawal of life support.