No other court of last resort in the world has dealt with the life-and-death issue that the Supreme Court of Canada decided in the case of Hassan Rasouli on Friday. The judgment will be internationally influential. And the court was right that physicians should not have unilateral decision-making power in withdrawing life support.
Three years ago, Mr. Rasouli suffered brain damage after a tumour-removal surgery. He has been on a ventilator at Sunnybrook Hospital in Toronto ever since. Eventually, the physicians there concluded there was no medical benefit to his remaining on life support.
His wife, Parichehr Salasel, did not consent to his disconnection from the ventilator. She went to court, asking that an Ontario administrative tribunal called the Consent and Capacity Board should deal any objection to her decision. Two levels of court agreed with her, though not for quite the same reasons, and the case then went up to the Supreme Court.
Chief Justice Beverley McLachlin, speaking for the majority, held that "medical benefit" is a physicians' concept, which need not necessarily be decisive in questions of life and death. Things can be done for a "health-related purpose" that may not be medically beneficial, but are nonetheless "treatment" – even when it is withdrawal of treatment such as the Sunnybrook doctors proposed.
The doctors' notion that almost certain death is not bad for one's health is likely to make the head spin. And the idea that not treating someone is a form of treatment may seem bizarre, too. But the essence of the Supreme Court's judgment is that, in life-and-death issues, the concepts and expertise of the medical profession should not always win out; sometimes, the rule of law ought to prevail over medical thinking.
With the aging of the population and the advances of medical science, we must expect more Rasouli-like disputes. But the Consent and Capacity Board, which was set up mostly to deal with problems of mental illness, is composed of lawyers, psychiatrists and members of the general public.
The board needs a solid contingent of physicians. They should not be the court of last resort, but their input is vital.