Parichehr Salasel shows her husband Hassan Rasouli family photos on a tablet on friday oct 18, 2013 after news that the Supreme Court of Canada has dismissed an appeal that would have permitted doctors to end life support for her husband.Mojgan Rasouli/The Globe and Mail
The family of Hassan Rasouli, a father of two hospitalized and on life support for the past three years, won a landmark victory at the Supreme Court of Canada denying doctors the power to unilaterally remove the breathing machine and feeding tubes keeping him alive.
Two doctors at Toronto's Sunnybrook Hospital contended that physicians would be forced to act against their obligation to do no harm if they maintained a biologically alive man in a state of living death.
But the court said that no legal principle could remove the entire burden of ethical challenges from doctors' shoulders. "While a physician may feel that the legal obligation not to withdraw life support is in tension with their professional or personal ethics, such tensions are inherent to medical practice," Chief Justice Beverley McLachlin said in a 5-2 ruling on Friday.
The case has been fraught, with ethicists on all sides saying that the power over life-and-death in an aging society has wide implications for the medical system, including the allocation of scarce resources. But the majority was careful to say their analysis is based on their interpretation of Ontario's 1996 Health Care Consent Act, and not on who should trump whom in provinces that do not have dispute-resolution tribunals for end-of-life care. The public's interest in funding treatment of little or no value did not play into their decision, the court said. (The doctors did not argue that point.)
In practical terms, the ruling means doctors in Ontario, and the handful of provinces with similar systems, will need families' consent before withdrawing life support from patients who cannot speak for themselves. If they cannot obtain the consent, Ontario doctors can seek permission from the 17-year-old Consent and Capacity Board, which attempts to determine the patient's best interests.
"Over the past 17 years, the Board has developed a strong track record in handling precisely the issue raised in this case," Chief Justice McLachlin wrote for the majority.
The minority warned that the ruling puts too much power in the hands of patients' families and leaves doctors in an untenable position.
"Such an extension of patient autonomy to permit a patient to insist on the continuation of treatment that is medically futile would have a detrimental impact on the standard of care and legal, ethical, and professional duties in the practice of medicine," Justice Andromache Karakatsanis wrote, joined by Justice Rosalie Abella.
The fight over the man's life began with a lawyer's letter in January, 2011. In it, physicians Brian Cuthbertson and Gordon Rubenfeld of Sunnybrook Hospital claimed the right to pull Mr. Rasouli's life support, against his wife's wishes. They refused to take the dispute to the Consent and Capacity Board. If the family disagreed with the doctors' decision, the letter said, they could go to court and ask a judge to stop them.
"It's the most astonishing letter I ever received," lawyer Gary Hodder said after the court's ruling. He represents Mr. Rasouli's wife, Parichehr Salasel, a devout Muslim and a medical doctor herself, who believes only God should make a decision to end life.
He described Mr. Rasouli as "an exceedingly vulnerable person. He can't communicate. Nobody knows what he's thinking or if he's thinking."
The two physicians could still ask the Consent and Capacity Board for permission to withdraw the life support. Mr. Rasouli, a retired engineer, went to Sunnybrook to have a benign brain tumour removed, but suffered a postsurgical brain infection. "What happens next is determined by a whole variety of factors," Erica Baron, a lawyer for the two physicians, said. She would not elaborate.
The ruling produced tears of joy from Ms. Salasel, who said she is convinced her husband is aware of his surroundings. "One hundred per cent he is there for me."
The family now hopes to work with doctors at Sunnybrook on a plan that might eventually bring him home, daughter Mojgan Rasouli said. "Canada shows me another thing about human rights," the Iranian immigrant said, adding that her father "is human like any other human."
Udo Schuklenk, who holds the Ontario Research Chair in Bioethics and Public Policy at Queen's University, called it a common-sense ruling. "I think the doctors overreached. There's no reason – technical, practical, clinical – that they should have the final say in these matters."
He said, however, that their position that life support should be withdrawn from Mr. Rasouli is the right one, even though doctors now describe him as "minimally conscious," an upgrade from permanent vegetative state. (A minimally conscious state is characterized by "inconsistent but clearly discernible behavioural evidence of consciousness," according to the journal Neurology.) "I think the demand is well within their rights and they are well-advised to pursue it."
The minority judges would have permitted doctors to have the final say, as long as they consulted with the patient's family and were acting in the best interests of the patient. The family would then be free to challenge that decision in Superior Court, under common-law principles that take into account patient autonomy, physicians' expertise and advice and the integrity of the medical system.