Fight over when doctors can end life-sustaining treatment heads to court
Published Sunday, December 9, 2012 7:00AM EST
Last Updated Sunday, December 9, 2012 11:18PM EST
The Supreme Court of Canada is set to hear a case this week that could clarify whether doctors have the right to decide when to end life-sustaining treatment.
The case involves Hassan Rasouli, 60, a Toronto man who has been in hospital since the summer of 2010, just a few months after he brought his family from Iran to Canada. During surgery for a benign brain tumour, Rasouli contracted bacterial meningitis and the brain infection caused significant brain damage.
Doctors at Toronto’s Sunnybrook Health Sciences Centre determined Rasouli was in a persistent vegetative state and said there was no hope of recovery. They urged his family members to agree to have his feeding tube and mechanical ventilator removed.
But Rasouli's wife, Parichehr Salasel, a family physician in her home country of Iran, refused, saying doctors had given up too soon and there was still a chance her husband might recover.
The family said they had found ways to communicate with Rasouli, and believed he was responsive and aware, and therefore should be kept alive.
In an interview at his bedside just days before the case is to be heard before the Supreme Court, Rasouli’s daughter, Mozhgan Rasouli, told CTV News that her father is now considered to be in a minimally conscious state, because of his responses to external stimulation. Within months at Sunnybrook, she said, her father was able to open his eyes when they called him, and give the thumbs-up and victory signs, she said.
“These were very significant changes and important changes,” Mozhgan Rasouli said.
Her father is “a big fan of life,” Mozhgan said, and characterized him as an adventurous and creative problem-solver.
Rasouli has been in intensive care at Sunnybrook for more than two years -- at a cost of up to $2,000 per day. His doctors, Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld, believe he is not receiving any medical benefit from being kept on life support.
They argue that patients and their decision makers should not be able to force doctors to continue treatment in cases where the doctors see the medical care as inappropriate or ineffective.
When the doctors took the case to court, an Ontario Superior Court judge ruled that if Rasouli’s doctors were not able to obtain consent from his family to take him off life support and begin palliative care, they’d have to leave the decision to the Consent and Capacity Board, a provincial tribunal that makes decisions on behalf of individuals who are unable to speak for themselves.
When the doctors appealed to the Ontario Court of Appeal, the court upheld the lower court’s decision, saying the doctors would either need consent from Salasel or the Consent and Capacity Board to end his life-sustaining care. Rather than go to the board for consent, the doctors asked the Supreme Court to decide the case.
In their submission to the Supreme Court, the doctors said that if the lower court decisions are allowed to stand, they would have serious consequences for the entire health-care system. They argued that protracted end-of-life care is a drain on the medical system and is of no benefit to Rasouli.
“Where a treatment offers no medical benefit to a patient, there can be no legal justification for requiring the treatment to be offered to the patient,” the physicians’ factum to the Supreme Court reads.
“In Mr. Rasouli’s case, there is no reversible illness from which he can or will recover, life-support serves no medical purpose. Moreover, he cannot experience any personal benefit from life-support measures in prolonging a life of which he is now unaware.”
While the law is clear that a competent adult patient may refuse medical treatment, it is unclear on the right to demand life-sustaining treatment, says Arthur Schafer, from the University of Manitoba’s Centre for Professional and Applied Ethics.
“Ìf the doctors believe that continued treatment or initiating life support would be futile, of no benefit to the patient, does the family have the right to say, ‘We insist that you give this treatment even though you think it`s useless and possibly even harmful,’” Schafer said in an interview with CTV News.
Rasouli’s family could face an uphill battle in court, Schafer said.
“I find it very difficult to believe that the Supreme Court will decide that healthcare professionals are mere technicians, and that whatever the family wants, the healthcare team has to provide it, even if this involves wasting scarce resources or even harming the patient,” he said in an interview with CTV News.
He noted, however, that should the court rule with the physicians, they are still obliged to engage families in dialogue over decisions regarding treatment, and include in the conversation other professionals such as a social worker, ethicist or pastor of the same religion.
Mozhgan is hopeful, and says her family is well aware of the significance of their case, not only for Canadians but on the international stage. She said her family should respect the Supreme Court decision.
“I am positive because it’s all about the human right of life and my father is right now the representative of the value of life.”
A number of groups will be acting as interveners in the case, including the hospital itself, the Canadian Association of Critical Care Nurses, as well as the Euthanasia Prevention Coalition and the Advocacy Centre for the Elderly.