Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre: A Life or Death Decision
Update: July 18, 2011
The Court of Appeal ruling in Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII) is now available online.
Originally posted: June 17, 2011
The case of Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII) , recently heard by the Ontario Court of Appeal, is not a case without controversy.
The case was originally heard by the Honourable Madam Justice Himel from February 25, 2011 to March 3, 2011. The application was commenced by Parichehr Salasel, the litigation guardian and wife of Hassan Rasouli. Mr. Rasouli is a retired mechanical engineer who, following a procedure for the removal of a tumor, developed an infection which caused severe and widespread brain injury as well as damage to the brainstem and the spinal cord. At the time of the hearing, he had been in a coma since October 16, 2010, his body kept alive by a ventilator and a feeding tube. His two treating physicians, the two main Respondents in these proceedings, together formed the opinion that Mr. Rasouli was in a “persistent vegetative state,” that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope of a medical recovery. Palliative care was advised.
Ms. Salasel sought an order from the Court preventing the doctors from withdrawing the life-sustaining treatment being administered to him. The doctors along with Sunnybrook Health Sciences Centre, the third Respondent in the proceedings, agreed to postpone their plans to withdraw treatment until the family could bring their application and have it adjudicated upon.
The crux of the issue before Justice Himel was whether the withdrawal or removal of life support services falls within the definition of “treatment,” as set out in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”).
Ms. Salasel took the position, on behalf of her husband, that it is consistent with the religious beliefs of Mr. Rasouli that life be continued, although no evidence was adduced regarding the treatment that Mr. Rasouli would have wished to receive in circumstances such as these prior to his becoming mentally incapable. The family also contended that they had seen Mr. Rasouli make certain movements and believed that he was not only aware of his surroundings, but may have been improving as well. In addition to the Charter and injunctive relief sought by Ms. Salasel, Ms. Salasel contended that the proposed withdrawal of treatment decision should be taken to the Consent and Capacity Board, in order to determine whether such is in fact in the best interests of her husband.
The physicians took the position that, in accordance with the common law, it is not necessary to take a doctor’s proposal to withdraw treatment to the Consent and Capacity Board, as a physician is not obliged to offer treatment that will not be of benefit to a patient and where continuing the life-sustaining treatment falls outside the standard of care. The physicians applied for a declaration that the decision to withdraw life sustaining treatment from a patient in a persistent vegetative state is a medical decision and that the consent of the patient’s substitute decision-maker is not required either at common law or under the HCCA. They also sought a declaration that the Charter did not apply.
Justice Himel disagreed with the position taken by the doctors, finding that “treatment” includes the withdrawal of life sustaining intervention and, therefore, requires the consent of the person, if capable, or, if incapable, the person’s substitute decision-maker. In the Court’s view, the doctors’ position was not consistent with the enumerated purposes of the HCCA, and, particularly, section 1(a): to provide rules with respect to consent to treatment that apply consistently in all settings. According to the Court, if the respondents’ interpretation of the HCCA were accepted, “no consistent rules regarding the withdrawal of life support in Ontario would exist,” since “[w]hether or not substitute decision-makers would be given an opportunity to consent would depend on the doctor in question, with recourse only being had to the Consent and Capacity Board at the doctor’s discretion.” The Court opined that including the withdrawal of life support in the definition of treatment “ensures that family members, specifically substitute decision makers, play a significant and important role in end of life decisions.” Furthermore, by way of section 37 of the HCCA, the Act permits doctors to challenge a substitute decision-maker’s decision to refuse consent to a proposed plan, by applying to the Consent and Capacity Board for a determination as to whether a substitute decision-maker’s decision to maintain life support is in the best interests of the patient, in accordance with section 21 of the HCCA. The Court concluded by stating: “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.”
Justice Himel was of the view that the physicians’ proposal to end life sustaining treatment to Mr. Rasouli must be referred to the Consent and Capacity Board. The Respondents appealed this decision.
It is quite true, as stated by Justice Himel, that end of life decisions are not easy. Adjudicating on how they should be made, as the Court of Appeal has now been called upon to do, is no easy feat either—particularly when the implications truly are life or death. It will be very interesting to see how the Court of Appeal decides this important case.
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Written by: WEL Partners
Posted on: July 18, 2011
Categories: Commentary
Update: July 18, 2011
The Court of Appeal ruling in Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII) is now available online.
Originally posted: June 17, 2011
The case of Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII) , recently heard by the Ontario Court of Appeal, is not a case without controversy.
The case was originally heard by the Honourable Madam Justice Himel from February 25, 2011 to March 3, 2011. The application was commenced by Parichehr Salasel, the litigation guardian and wife of Hassan Rasouli. Mr. Rasouli is a retired mechanical engineer who, following a procedure for the removal of a tumor, developed an infection which caused severe and widespread brain injury as well as damage to the brainstem and the spinal cord. At the time of the hearing, he had been in a coma since October 16, 2010, his body kept alive by a ventilator and a feeding tube. His two treating physicians, the two main Respondents in these proceedings, together formed the opinion that Mr. Rasouli was in a “persistent vegetative state,” that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope of a medical recovery. Palliative care was advised.
Ms. Salasel sought an order from the Court preventing the doctors from withdrawing the life-sustaining treatment being administered to him. The doctors along with Sunnybrook Health Sciences Centre, the third Respondent in the proceedings, agreed to postpone their plans to withdraw treatment until the family could bring their application and have it adjudicated upon.
The crux of the issue before Justice Himel was whether the withdrawal or removal of life support services falls within the definition of “treatment,” as set out in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”).
Ms. Salasel took the position, on behalf of her husband, that it is consistent with the religious beliefs of Mr. Rasouli that life be continued, although no evidence was adduced regarding the treatment that Mr. Rasouli would have wished to receive in circumstances such as these prior to his becoming mentally incapable. The family also contended that they had seen Mr. Rasouli make certain movements and believed that he was not only aware of his surroundings, but may have been improving as well. In addition to the Charter and injunctive relief sought by Ms. Salasel, Ms. Salasel contended that the proposed withdrawal of treatment decision should be taken to the Consent and Capacity Board, in order to determine whether such is in fact in the best interests of her husband.
The physicians took the position that, in accordance with the common law, it is not necessary to take a doctor’s proposal to withdraw treatment to the Consent and Capacity Board, as a physician is not obliged to offer treatment that will not be of benefit to a patient and where continuing the life-sustaining treatment falls outside the standard of care. The physicians applied for a declaration that the decision to withdraw life sustaining treatment from a patient in a persistent vegetative state is a medical decision and that the consent of the patient’s substitute decision-maker is not required either at common law or under the HCCA. They also sought a declaration that the Charter did not apply.
Justice Himel disagreed with the position taken by the doctors, finding that “treatment” includes the withdrawal of life sustaining intervention and, therefore, requires the consent of the person, if capable, or, if incapable, the person’s substitute decision-maker. In the Court’s view, the doctors’ position was not consistent with the enumerated purposes of the HCCA, and, particularly, section 1(a): to provide rules with respect to consent to treatment that apply consistently in all settings. According to the Court, if the respondents’ interpretation of the HCCA were accepted, “no consistent rules regarding the withdrawal of life support in Ontario would exist,” since “[w]hether or not substitute decision-makers would be given an opportunity to consent would depend on the doctor in question, with recourse only being had to the Consent and Capacity Board at the doctor’s discretion.” The Court opined that including the withdrawal of life support in the definition of treatment “ensures that family members, specifically substitute decision makers, play a significant and important role in end of life decisions.” Furthermore, by way of section 37 of the HCCA, the Act permits doctors to challenge a substitute decision-maker’s decision to refuse consent to a proposed plan, by applying to the Consent and Capacity Board for a determination as to whether a substitute decision-maker’s decision to maintain life support is in the best interests of the patient, in accordance with section 21 of the HCCA. The Court concluded by stating: “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.”
Justice Himel was of the view that the physicians’ proposal to end life sustaining treatment to Mr. Rasouli must be referred to the Consent and Capacity Board. The Respondents appealed this decision.
It is quite true, as stated by Justice Himel, that end of life decisions are not easy. Adjudicating on how they should be made, as the Court of Appeal has now been called upon to do, is no easy feat either—particularly when the implications truly are life or death. It will be very interesting to see how the Court of Appeal decides this important case.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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