Law Times

Page 12 March 11, 2013 Law Times • FOCUS Rasouli litigation Supreme Court tackles end-of-life decisions BY JUDY VAN RHIJN For Law Times A n Ontario case scrutinizing the common law duties arising when doctors and hospitals believe further patient care is futile has reached the Supreme Court. Its decision may well clarify the murky difference between killing a patient and letting a person die. The case of Rasouli v. Sunnybrook Health Sciences Centre went before the Supreme Court on Dec. 10, 2012, and is currently under reserve. Hassan Rasouli has been in a coma or minimally conscious since October 2010. His doctors wish to withdraw life-sustaining treatment and administer palliative care, but his wife, as the substitute decision-maker and a doctor herself, has refused consent. While the doctors agree that they require consent to administer palliative care, they believe they don't need it to withdraw life-sustaining measures that are no longer medically indicated. People may wonder how such an issue got to the Supreme Court. "In my view, a mistake was made at the outset," says Mark Handelman of Whaley Estate Litigation in Toronto. "When Mr. Rasouli went in for surgery to remove a tumour from his brain, nobody said, 'By the way, do you have a power of attorney for personal care? What are your end-of-life wishes?'" Handelman believes it's an important issue that the general public needs to understand. "It is also a lesson for lawyers of the importance of the power of attorney for personal care and a lesson for named attorneys to know the wishes, values, and beliefs of the person. Then there is no anger, denial or surprise when that person is incapacitated and they have to make a decision." In this case, there was a clash between medical protocols and the patient's legal rights under the Charter of Rights and Freedoms. "The doctors say the medical protocols entitle them to decide when treatment will be of no more benefit," says Handelman. "In a lot of jurisdictions, that would be right because the common law says that doctors must act in the patients' best interests. But in Ontario, we have the Health Care Consent Act which establishes a scheme for substitute decision-making when a decision needs to be made." Handelman recalls that the act was a response to cases in the early 1990s in which the courts questioned whether the existing structure was adequate to protect Charter rights. The current regime provides that when a health-care practitioner is proposing treatment options, the substitute decision-maker decides which one reflects the person's wishes and if there are no stated wishes, their values, beliefs, and medical best interests. When practitioners disagree with substitute decision-makers, they must then go to the Consent and Capacity Board provided they've exhausted all other avenues of conflict resolution. The problem lies with the definition of "treatment" in the Health Care Consent Act and whether withdrawing or withholding life support falls within it. "The doctors say it is a pure medical decision, not a treatment decision, so they don't need to go to the board," says Handelman. Justice Susan Himel, who heard the case in the Superior Court, thoroughly analyzed the definition of "treatment" and said the case should have gone to the board. The doctors appealed, but the Court of Appeal agreed. Handelman doesn't expect ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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"The Consent and Capacity Board of Ontario is a much quicker and more inexpensive course than the courts. There's a possibility the Supreme Court will say that more provinces should have one." It seems likely the issue was an area that was going to arise regardless of Ontario's special scheme. "We have an aging population," says Handelman. "We have remarkable medical science with the ability to delay death. What do you do with a person suffering from dementia or catastrophic stroke who has lost virtually any use of their brain? How do you decide whether to continue life support or allow them to die with whatever degree of dignity is available? That requires deference to personal values and beliefs as much as science." In a new study reviewing decisions made by the board relating to a patient's best interests at end of life, academics Paula Chidwick, Robert Sibbald, and Dr. Laura Hawryluck found that substitute decision-makers often rely on their own values or religion in their interpretation of best interests and that they often have unrealistic hopes for recovery. They found physicians focused more narrowly on clinical conditions and whether treatments could still be of benefit. An important factor in the Rasouli case was the intervention of the Canadian Association of Critical Care Nurses. "In essence, they are saying, 'Don't trust the doctors. The doctors do not know the patient's values and beliefs, so how can they unilaterally make decisions?'" says Handelman in summarizing the arguments. "I think the nurses' intervention will have a significant impact on the decision." Handelman warns that while there are big issues involved in the case, it primarily concerns a treatment decision addressing a single patient. "This case doesn't touch on resource allocation. There are approximately 1,000 intensive-care beds each costing $1 million a year. That's a hugely expensive resource." Whatever the outcome for Rasouli personally, health and estate lawyers are hoping the Supreme Court will add clarity to the topic at large. "Whatever guidance they can give us will be helpful," says Handelman. "Not a lot of people live long enough to work their way through the courts. It will be a long time before a similar case comes along." But he doesn't expect the Supreme Court's decision to be comprehensive. "What I'm afraid of is seven different judgments reflecting seven perspectives making things more difficult for health-care practitioners and those who advise them and for the public at large." LT

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