The Supreme Court of Canada has dismissed an appeal that would have permitted doctors to end life support for a severely brain-damaged man without the consent of his family or a substitute decision maker. Under the Health Care Consent Act, doctors who want to withdraw life support from an incapacitated person without the consent of their authorized health care decision-maker must take the issue up before the Consent and Capacity Board. The burden is on the doctors to push their case for withdrawing care, rather than on the individual’s family to block the doctor. The Board’s decision can be appealed to the courts.
Canadian Association for Community Living Relieved at Dismissal of Appeal in Rasouli Case
For Immediate Release
October 18, 2013
Toronto
The Canadian Association for Community Living (CACL) is relieved that the Supreme Court of Canada (SCC) has dismissed the appeal in the case of Cuthbertson v. Rasouli where Mr. Rasouli’s attending physicians sought to override the wishes of his family and withdraw life support measures. In a majority judgment, the Supreme Court clearly affirmed that life support is medical “treatment” within the definition of the Ontario Health Care Consent Act (HCCA). Thus disputes over whether or not it should be withdrawn are disputes about consent to health care treatment or about acting in the best interests of the patient in respect of health care decisions. The regime in Ontario provides a process for resolving such disputes through the Consent and Capacity Board, and the SCC judgment asserts that is the place to resolve them.
Had the SCC ruled otherwise, it may have opened the door to physicians acting unilaterally to withdraw life sustaining treatments, unless their patients or their substitute decision makers or supporters could get to court to request an injunction. Such requirements would impose significant barriers to justice for older persons and persons with disabilities who, as the SCC has already acknowledged, face historic and systemic disadvantage.
CACL has been involved in a number of cases where medical professionals have attempted to override the wishes of individuals and their families with regard to continuation of life-sustaining treatments, often for infants born with complex health care needs. These cases demonstrate the perilous position that people with disabilities can find themselves in when they enter the health care system. These have taken many forms—from inappropriate use of “Do not resuscitate” orders, to pressure from physicians to terminate treatment.
Today’s decision is welcomed by CACL in preventing potentially disastrous implications of granting blanket decision making authority to physicians. Only providing recourse to apply for court injunctions is not the way to resolve decision-making challenges. In making clear that legislated procedures under the HCCA govern decision making, the Court has ruled against further barriers to justice and equality for people with disabilities and older persons.
– See more at: http://www.cacl.ca/news-stories/blog/canadian-association-community-living-relieved-dismissal-appeal-rasouli-case#sthash.eVYBsWR6.dpuf