The May 2015 edition of Health Law in Canada includes the practical and timely article, “Last Rights: Cuthberson v. Rasouli, What the Supreme Court Didn’t Say about End-of-Life Treatment Decisions” by Mark Handelman and Dr. Gordon.1
Do not be fooled by the title: this article is about much more than just the Rasouli decision. Of particular interest is the authors’ discussion of what is NOT a treatment within the meaning of Ontario’s Health Care and Consent Act. This issue central to the Rasouli decision, of course, but it also determined the outcome in Bentley v. Maplewood.2 Indeed, the failure of substitute decision makers and/or physicians to appreciate what is, and is not, a “treatment” requiring consent, and therefore a decision that falls within the ambit of attorneys for personal care, may have led to the recent unfortunate events in Rayhons case in Iowa.
The authors also review the scope of palliative care, and take great pains to distinguish palliative care from the end-of-life care. They take issue with the assumption that the former is a euphemism for the later, and their umbrage is from academic conceit. As the federal government considers what it should (or should not) do to fill the legislative gaps left by Carter, and as all eyes turn to Quebec’s Bill 52 absent any other publicly debated framework, Mr. Handelman and Dr. Gordon have delivered in their article a preliminary road map of sorts to addressing the difficult treatment decisions to come.
The authors conclude their article with a number of recommendations for achieving ethical and legal treatment results that will avoid the need for litigation, or at the very least, facilitate better results for the patient as well as the substitute decision maker and the treatment team.
Chief Justice Beverley McLachlin observed in Rasouli that the law may not be able to solve every ethical dilemma.3 Her Honour suggested that a practical solution may be the only solution for physicians if they are comply with the law and as well as their professional and personal ethics.4 Congratulations to Mark and Michael on a timely and responsive contribution.
1. Mark Handelman and Michael Gordon, “Last Rights: Cuthberson v. Rasouli, What the Supreme Court Didn’t Say about End-of-Life Treatment Decisions” (2015) 35:4 Health Law in Canada at p 106.
2. Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91 (CanLII). See para 8 – The chambers judge found that the provision of oral nutrition and hydration by prompting with a glass or spoon is a form of personal care, not health care within the meaning of the HCCCFA Act. This finding was not an issue on appeal.
3. Cuthbertson v. Rasouli, 2013 SCC 53,  3 S.C.R. 341 at para 75.