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Top court due to decide on comatose Toronto patient’s right to life

Hassan Rasouli – shown with his wife, Parichehr Salasel, in November, 2011 – has been in a coma since undergoing brain surgery in October, 2011.

FERNANDO MORALES/THE GLOBE AND MAIL

Hassan Rasouli is a retired mechanical engineer who entered hospital three years ago to have a benign brain tumour removed. Now, comatose in bed at Toronto's Sunnybrook Hospital, he is at the heart of a legal battle over whether doctors have the ultimate say on whether to withdraw life support from patients they believe have no hope of recovery. The Supreme Court of Canada is expected to decide that question on Friday.

When a life is not at stake, doctors are under no legal obligation to perform a treatment they consider pointless or destructive. But is it different when the result would be death? The court must decide whether doctors can withhold life support they think would only keep a patient in a state of living death, in the same way they can refuse to do surgery they believe is inappropriate, without consent from families.

The case has potentially wide consequences for how medical resources are allocated in an aging society, and for who decides – especially when medical advances have shown uncertainty over the mental activity of some individuals deemed vegetative.

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Mr. Rasouli's wife, Parichehr Salasel, says his life is worth preserving. She is a doctor, trained in Iran, and a Muslim who believes life-and-death decisions belong to God. She says her husband can experience life – but is just limited in how he expresses his awareness.

Doctors are not in touch with patients in the same way as family members are, Dr. Salasel said in an interview on Wednesday.

"Doctors only have medical knowledge, nothing else," she said. "They assess every patient based on their medical knowledge, nothing else. But the family of the patient feels him very, very, very closely."

The two Sunnybrook doctors involved in the case say family members often misinterpret gestures of comatose patients that are meaningless.

"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," Brian Cuthbertson and Gordon Rubenfeld argue in court documents. (Emphasis is theirs.)

The case has potentially disturbing consequences for doctors, ethicist Arthur Schafer says. If family members of patients who are biologically alive but whose "human, personal life is irreversibly gone" have the right to demand life-saving treatment, doctors might have to violate their ethical obligations by providing care they consider harmful.

"When a person is on a breathing machine and tubes are put down their lungs, fluid accumulates in the lungs and it's got to be suctioned. I've heard that described as being like having a hot poker put down your throat," says Prof. Schafer, director of the University of Manitoba's Centre for Professional and Applied Ethics. "When you're in bed for a long time your skin can become gangrenous and you need frequent surgery to remove infected skin."

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Doctors in a Winnipeg case involving Sam Golubchuk, an Orthodox Jew, quit their jobs rather provide treatment they consider akin to torture, he said.

Jennifer Chandler, a law professor at the University of Ottawa, said that disabled people have expressed concern about quality-of-life judgments in decisions about withdrawal of life supports. "They're worried someone will decide their own lives aren't worth living." She added that Western University neuroscientist Adrian Owen has found, using advanced imaging techniques, that patient Scott Routley, after 12 years of being deemed in a vegetative state, was aware of his identity and whereabouts. She said this raises the question: "What is the mental life of people we think have none?"

Cost and space for other patients are also concerns. "ICU rates for uninsured residents are around $5,000 p/day," says Anita Ho, an ethicist at the University of British Columbia. "More importantly, some may worry there is a shortage of beds and human resources." If scarce resources are to be determined according to potential benefits of treatment, "what counts as benefit, and who gets to determine that?"

A postsurgical infection destroyed much of Mr. Rasouli's brain function, and the doctors said he had no "meaningful consciousness." But long after the case was first heard in a lower court, Mr. Rasouli, who is in his early 60s, showed unexpected small indications of life, such as giving a thumbs-up sign, causing doctors to upgrade his status from "permanent vegetative state" to minimally conscious.

Ontario has the country's only mechanism for resolving disputes between doctors and families. The Consent and Capacity Board renders decisions within a week. But the Sunnybrook doctors did not want the board involved because, in their view, no treatment was at issue. A treatment that is not medically called for is not treatment, they say.

Two lower courts disagreed, saying the Ontario legislature had decided that death is different, and that such disputes should be settled by the Consent and Capacity Board.

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Dr. Salasel says that her husband is "like a normal person; there's no difference between him and a normal person, but because of the damage to his brain, his ability [to communicate] is limited."

Even so, she said, he has ways of communicating.

"He knows us. He picks up a small ball. I ask him to give it back; he gives it back. When I ask him 'do you understand' he closes his eyes, like, 'I know, I know.' " As for his chances of recovery, "I don't know – but everything we don't know, God knows."

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