Supreme Court mulls end-of-life decision process

The emotionally charged question about whether a doctor should have the authority to order life-support tubes pulled from a minimally conscious patient without the consent of the patient's family was the subject of a Supreme Court of Canada hearing Monday.

The case is about Hassan Rasouli, who has been on a ventilator and feeding tube for the past two years at Sunnybrook Hospital in Toronto, after bacterial meningitis destroyed parts of his brain following surgery for a brain tumour.

Rasouli, at first in a coma, was deemed to be in a persistent vegetative state, but that diagnosis was changed to one of "minimal consciousness" after he seemed to wake up and could occasionally give a thumbs-up sign, or grasp a ball.

Nevertheless, Rasouli's doctors at Sunnybrook didn't change their minds that he should be taken off hydration and feeding systems and moved into palliative care.

Rasouli's family sought an injunction to prevent removal of the tubes, and then argued successfully at two lower court levels that the doctors did not have to right to halt use of the life-preserving equipment. The doctors appealed those decisions to the highest court.

Outside the court in Ottawa Monday, Rasouli's daughter Mozhgan said, "My father represents the value of life … I know that he wants to be alive." She continued, "It is unfair, it is unfair — he should be treated like anyone else."

Who decides?

The crucial issue for the seven Supreme Court justices who heard the case is: who decides? The tug-of-war isn't just between the doctors and the family. There is also a tribunal called the Ontario Consent and Capacity Review Board that often arbitrates about end-of-life decisions when there is a conflict between doctors, or between doctors and family members. The court is being asked, among other things, whether the independent tribunal, set up under provincial legislation about patient consent, should have the final say.

The Sunnybrook doctors, Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld, are arguing that there is not a legal need to perform treatment that they reasonably believe to be medically futile. 

At the court, the doctors' lawyer, Harry Underwood, pointed out that a life-support system, with its tubes and monitors, can be a "terrible indignity," with the patient "being forced to be alive," subjected to pain and infections.

Underwood said that withdrawal of treatment is not an offer of treatment, but in fact the opposite. He acknowledged that doctors have the option to obtain informed consent about ending life-support in advance, but said this step is not essential.

He also said the courts should not tell doctors how to practise medicine, and that the purpose of medicine is not to satisfy every patient's wishes for treatment.

Underwood asked, "If [patients'] wishes are to govern at end of life, why do they not rule throughout?" One judge wondered if a cancer patient should be allowed to demand chemotherapy rather than the radiation that a doctor might prescribe. 

Andrew Faith, a lawyer for the Critical Care Society, argued that doctors are not seeking a unilateral right to make decisions. Instead he said, the process should be one of consensus building across the entire medical team, and that there should be clear communication to the patient's family.

Gary Hodder, the lawyer for the Rasouli family, talking to reporters, said, "This is a case about process much more than what should happen in this particular case." He added that the Rasouli family would have accepted a decision from the Ontario Consent and Capacity Board, given that it would be subject to appeal.

Rationing of resources                                                                

The case is bound up with balancing the questions of religious values, medical ethics, patients' rights and limited health-care resources.

Hodder insisted the case has never been about the rationing of resources. However, the Sunnybrook doctors' lawyer Harry Underwood raised the issue in his rebuttal: "Are we going to decide as a society to devote medical resources to people who do not have a medically treatable condition?"

The Rasouli case has also drawn the attention of groups opposed to euthanasia. Don Hutchison, legal counsel for the Evangelical Fellowship of Canada, told reporters that patients’ religious values should be taken into account in end-of-life decisions.

Speaking with reporters, Rasouli's wife, Parichehr Salasel, said she was a physician who had practised for 30 years in Iran, where she had never seen a doctor who told a patient there is no hope. As for her husband, she said, "You feel he is there, little by little he comes out [of a coma] and now he is conscious. It doesn't matter, minimal conscious, or whatever. For me, he is conscious because he understands what I am saying to him."

The court has reserved judgment and did not suggest when a decision might come.