In a decision released on October 18th, the Supreme Court of Canada has provided clarification as to the legal process to be followed, (at least in Ontario), in those rare but very troubling cases where, in spite of best efforts, it is not possible to achieve consensus as between a medical team and a patient’s family with respect to a medical recommendation to withdraw intensive life-sustaining treatment when it is considered to be no longer medically indicated.

The majority of the SCC justices (five of seven who heard the case) have ruled that in Ontario, because of the provisions of the Health Care Consent Act (HCCA), the Consent and Capacity Board is the appropriate body to resolve such conflicts.

What the SCC Decision Did and Did Not Determine

There have been headlines in the media suggesting that families now have the right to demand life support treatment contrary to medical recommendations.

It is important to understand that what the SCC actually said [see para. 2] is that “under the HCCA, a designated substitute decision-maker, has the right to determine whether life support can be withdrawn in the first instance.” The SCC then emphasized that the SDM must make decisions in accordance with the provisions of the HCCA, which aim at “protecting patients’ autonomy and medical interests”. The decision then says, “the HCCA empowers the Board to make the final decision on the issue of consent for incapable patients”.

So, the Court has not said that there is a “right” to treatment at the end of life.

The Court decided ONLY that withdrawal of life support in a situation like Mr. Rasouli’s constitutes treatment for which consent is required. “This case does not stand for the proposition that consent is required under the HCCA for withdrawals of other medical services or in other medical contexts.” [para. 70]

The Court has made no determination as to:

  • Whether or not life support should or should not be withdrawn in Mr. Rasouli’s case;
  • How such decisions should be made in jurisdictions outside of Ontario;
  • The public policy implications of such decisions including the use of scarce resources [that is for the legislature]

Do Your Hospital’s Policies Require Amendment?

Most Ontario Hospitals have policies which would be applicable to situations like the one faced by Mr. Rasouli’s family and physicians, which already set out a process aimed at achieving consensus on such matters including the offering and/or withdrawal of life support.

Such policies should be reviewed so as to ensure they are clear that with respect to the provision of and withdrawal of life support, consent is not only desirable, but necessary, and that should an SDM refuse consent, physicians know of and be supported through the process of bringing an application to the Consent and Capacity Board if he or she feels that the SDM is not acting in accordance with the patient’s prior capable wish or in the patient’s best interests if there is no prior capable wish; or if he or she questions whether the patient’s alleged prior capable wishes are applicable to the patient’s current circumstances; or to seek permission to depart from prior wishes to refuse treatment.

Be cautious that the policy is not overbroad. The Court stated that “a more nuanced view that withdrawal of treatment may sometimes, although not always, constitute ‘treatment’ better fits the provisions of the HCCA and the realities of medical care”. So, with respect to some aspects of end of life care other than withdrawal of life support, (for example, no CPR) it is not necessarily the case that consent is required. Consent is only required for treatment that is offered by a health practitioner. Medical judgment still determines what is offered, based on a reasonable standard of care.

Remember, the SCC has not created a right to demand interventions which have no medical benefit; rather, the Court has merely clarified that the withdrawal of life support and the provision of palliative care involves physical touching and has a health-related purpose, namely, the prevention of suffering and indignity at the end of life, and thus, is a treatment, for which consent is required. The withdrawal and/or withholding of other types of interventions may require consent in some cases (for example if made part of a plan of treatment).

Is the Consent and Capacity Board the Right Entity to Give Guidance on End Of Life Issues?

The law as it now stands is clear that the CCB is the right entity to decide whether or not an SDM is making a treatment decision in accordance with the provisions in the HCCA, and that this includes decisions regarding the withdrawal of life support. If not, the Board can order that consent be given.

Many sectors of public opinion have difficulty with this proposition, coming from all angles. Those who believe that these decisions belong only to families fear the Board’s intrusion. Those who practice in the field of critical care have concern that the only medical specialists on the board are psychiatrists. It is a fact that the vast majority of the CCB’s work is in the realm of mental health issues.

Moreover, there are examples of cases where the involvement of the CCB has not resolved end of life issues in a manner which would be considered satisfactory, and which in fact has added to the confusion, frustration and complexity of these cases. The delays that are encountered during the process in order to accommodate the schedules of Board members, parties, experts, witnesses, and the need for legal counsel render mythical the expectation that these disputes, if brought to the CCB, lead to a quick and efficient resolution within days.

The process is not ideal, but likely no legal process is in such complex situations.

The decisions of the CCB over the years in end of life cases, however, have been respectful of the medical evidence, and the Board has not been hesitant to make decisions which support the withdrawal of life support in most such cases. In our experience, when the evidence is brought forward in a clear and cogent fashion, SDMs are very likely going to be directed to consent to the withdrawal of life support and a palliative care plan if that is the weight of the medical evidence.

In several parts of the majority decision of the SCC in the Rasouli case, the Court reiterated that the physician’s views of what will medically benefit the patient are obviously highly relevant and critical to the Board’s determination of the patient’s best interests.

Bottom Line

While the SCC decision in the Rasouli case has attracted much comment from many quarters, to a large extent it merely reinforces what has been the status quo in Ontario hospitals. Critical care physicians should be encouraged to continue to gain comfort with the CCB process on what will likely continue to be the rare occasions when that process is required to resolve an impasse over withdrawing life support.

Several lawyers in the health law group at Borden Ladner Gervais have had the privilege of providing legal representation to health care practitioners before the CCB countless times, including cases involving the withdrawal of life support.

To read the full SCC Decision in the Rasouli Case, please click here.

Should your Hospital need legal guidance or advice with policies, consultation on a particular case, or legal representation for health care providers before the CCB, we would be pleased to be of service.

In our Toronto office, contact: Daphne Jarvis at 416.367.6216 (DJarvis@blg.com) or Katharine Byrick at 416.367.6012 (KByrick@blg.com).

In our Ottawa office, contact: Kirsten Crain at 613.787.3741(KCrain@blg.com).

Author

Daphne G. Jarvis 
DJarvis@blg.com
416.367.6216

Expertise

Health Law
Mental Health Law
Health Advocacy