Cuthbertson v Rasouli  SCC 53
Medical treatment – treatment withdrawal
In light, in particular, of the continuing discussions as to the implications of the decision of the Supreme Court in Aintree v James, we think that it is apposite to put before you a brief note on the recent decision of the Supreme Court of Canada in a case about withdrawal of life- sustaining treatment from a man in a persistent vegetative state. The framework for decision- making about medical treatment in Ontario is very different from that under the MCA, with substitute decision-makers able to give or withhold consent to treatment. The substitute decision-maker will usually be a close family member, applying a statutory hierarchy of substitute decision-makers a little like the hierarchy in the MHA 1983 for identifying nearest relatives. Mr Rasouli’s wife was his substitute decision-maker under the relevant statute, and refused to consent to treatment being withdrawn. That dispute would be capable of resolution by an independent quasi-judicial Board under the relevant legislation.
The Supreme Court had to decide whether withdrawal of ANH amounted to ‘treatment’, and determined that it did, since a strict distinction between acts of treatment and acts of withdrawal could not be maintained in the particular context, even though not all withdrawals would constitute treatment (for example refusal to renew a prescription of a drug that may harm the patient). Next, the court grappled with the thorny issue of what happens if the physicians consider treatment is futile and are therefore unwilling to provide it, but a decision-maker decides that it is in P’s best interests. The court referred to R (Burke) v General Medical Council,  EWCA Civ 1003,  3 WLR 1132 at para 34 as authority for the proposition that a physician’s duty of care may require that treatment not be withdrawn despite the physician’s ethical objections to its administration. The relevant passage in Burke considers the case of a “competent patient who, regardless of the pain, suffering or indignity of his condition, makes it plain that he wishes to be kept alive. No authority lends the slightest countenance to the suggestion that the duty on the doctors to take reasonable steps to keep the patient alive in such circumstances may not persist. Indeed, it seems to us that for a doctor deliberately to interrupt life-prolonging treatment in the face of a competent patient's expressed wish to be kept alive, with the intention of thereby terminating the patient's life, would leave the doctor with no answer to a charge of murder.” Whether that observation exactly translates into the position that an incompetent patient who would have wanted treatment to continue must therefore be treated even by a doctor who judged treatment to be futile or harmful, is open to debate – certainly, our Supreme Court in Aintree did not take the view that medical practitioners could be required to provide treatment they judged to be futile. The point highlights the peculiar situation in English law in which PVS is treated differently to all other conditions. Logically, it would seem to be the case that if P’s views about the quality of his life are of critical importance (as per Aintree), then whether or not doctors think ANH is futile is not the end of the matter, and in PVS cases there may be a balancing exercise to be carried out which does not always generate the same answer. Is there any principled basis on which to accept that medical futility is determinative in PVS cases where there is a tiny but not non- existent prospect of improvement, but not in other cases?
The dissenting judges in the Canadian case took the view that “[w]hen the issue is the withdrawal of treatment that is no longer medically effective or is even harmful, a patient’s choice alone is not an appropriate paradigm. A patient’s autonomy must be balanced against broader interests, including the nature of her condition, the implications of continuing the treatment, the professional obligations of her physicians, and the impact on the broader health care system..... such an extension of patient autonomy to permit a patient to insist on the continuation of treatment that is medically futile would have a detrimental impact on the standard of care and legal, ethical, and professional duties in the practice of medicine.”