Rasouli decision -- So what Is the Common Law?

Yesterday, the Supreme Court of Canada released Cuthbertson v. Rasouli, 2013 SCC 53.  Argument took place more than ten months ago, on December 10, 2012.  The court was reviewing an unanimous Court of Appeal for Ontario decision released on June 29, 2011.  The Court of Appeal had upheld an earlier decision by Justice Himel.  Medical patients in Hassan Rasouli's condition are not supposed to live this long; Hassan remains with us.  

A 5-2 majority (Justice Moldaver could not participate because he had written, with Simmons, J.A., the decision under appeal) concluded that the withdrawal of life-sustaining treatment, at least in the case before it, constituted "treatment" as defined in Ontario's Health Care Consent Act, 1996 (the "Act") and therefore required either patient or substitute decision maker ("SDM") consent.

Thus, Rasouli's doctors are not entitled to withdraw mechanical ventilation (“MV") unilaterally, without the consent of Rasouli's wife.  In case of an impasse, and if they remain determined to withdraw MV, Rasouli's doctors must apply to Ontario's Consent and Capacity Board (the “CCB") for it to review the situation, and in particular, to consider whether Rasouli's wife is refusing to consent to the doctors' proposed withdrawal of life-sustaining treatment in a manner consistent with s. 21 of the Act.

The majority was careful not to decide more than it had to, and it offered only limited commentary on the common law position to the situation at hand.  While personally disappointing (I argued the common law position on behalf of the patient both at the Court of Appeal and at the Supreme Court), this was probably appropriate, considering: (1) the case was not argued on the basis of Charter rights (only Charter values); (2) there was no record on the cost of care nor the rationing of medical resources (issues that could have weight, if the Act--which provides for an user-friendly process with very strict timelines--does not apply); and (3) Rasouli's official medical diagnosis had improved from "PVS" to "MCS", so the record built today even in that case might be different.

Supreme Court of Canada

Supreme Court of Canada

The majority raised an important distinction between the concepts of "medical benefit" and "health-related purpose".  Just because something is considered (by the treating physician(s)) to be "medically futile" does not mean that it is not "treatment" under the Act (thus requiring consent).  This corrects a potentially dangerous comment made by the Court of Appeal at paragraph 46 of its reasons: "For present purposes, we are prepared to accept that the Act does not require doctors to obtain consent from a patient or substitute decision-maker to withhold or withdraw "treatment" that they view as medically ineffective or inappropriate."  The Supreme Court has made clear that the definition of "treatment" is not limited to what is medically indicated; such a limitation is inconsistent with the statutory language and the objects of the Act.  The application (and protection) of the Act, in the termination of life context, therefore, does not depend on the "treatment package" (tied to palliative care) concept developed by the Court of Appeal, which could have led to arbitrariness and people falling through the cracks.

Justice Himel was correct when she wrote, at paragraph 103 of her reasons, back on March 9, 2011:  "We are fortunate in Ontario that our legislature has provided a statutory scheme to assist doctors and substitute decision-makers in determining when an incapable person should be removed from life support, complete with recourse to an independent, expert tribunal in the event that a dispute arises in applying the best interests test.  This statutory scheme will allow the applicant's doctors to challenge the substitute decision-maker's decision refusing consent to the proposed plan at the CCB.  While no end of life decision can be easy, the process established by the HCCA provides consistency and ensures a full consideration of an incapable person's best interests in cases such as this."

We are indeed fortunate in Ontario.  But what is the common law?