Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator. Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no. Who has the right to make these decisions?
The doctors suggested that they do. The family disagreed.
As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death. Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation.
This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1). It was appealed to the Ontario Court of Appeal (FN2). Now leave is being sought to have the matter heard by the Supreme Court of Canada. Thus far, the courts have sided with Mr. Rasouli’s family. This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans. Let’s review the law.
The Act provides that medical treatment shall not be administered without the consent of the patient. If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker. Sounds simple? It’s not.
Key to the Court’s review is the legal meaning of the word “treatment”(FN4). Also fundamental to the decision making process are the real wishes of the patient. The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.
The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment. The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it. What did they mean by “inhumane”? In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity. It is the extension of death – not life and they argue is inhumane (FN5).
There was some sympathy at the Ontario Court of Appeal for this position. While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.
Let’s examine why they sided with the Rasouli family. There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”. Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient.
The court decisions will likely only delay the argument as to who has the right to decide. Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)
Why is this case so important to the Jewish community?
End of life issues have halachic implications. Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker? It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills. I have written extensively on this topic and refer the reader to http://bit.ly/halivwill This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7). I caution the reader that these precedents were drafted for American jurisdictions. Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.
There is another issue relevant to all Canadians regardless of their religious affiliations. Our health care system is in crisis. Many say that it is underfunded and mismanaged. At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources. At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources. This issue was not argued at the Court of Appeal, but it is an issue of importance. Is the lack of funding a driving issue in this debate?
This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.
Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.
FN1. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).
FN 2. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 ONCA 482. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.
FN3. See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A
FN4. The Ontario Court of Appeal’s decision at paragraphs 19-24 review the relevant provisions with respect to the use of the term “treatment” under the Act. See sections 1, 2, 10, and 21. The Court of Appeal’s analysis is set out below.
20] Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.
 Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).
 Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.
 Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).
FN5. Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs 39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act. In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers. While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”
FN6. Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board. Equally important the Court “may receive new or additional evidence as it considers just.”
FN7. See the website provided by the Orthodox Union of Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”. This is available on line at http://bit.ly/ouresrc and is an invaluable resource. Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction. Questions to be addressed include whether there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation? If it does then is the Power of Attorney is invalid or is it saved by the concept of “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill