Who decides when life ends? Supreme Court rules doctors cannot end life support without family consent

Split 5-2 decision rules narrowly on 61-year-old Hassan Rasouli of Toronto, whose family battled doctors for three years.

Two Sunnybrook doctors have lost their bid to unilaterally remove a severely brain damaged patient from life support, but they still have the option of going to a provincial tribunal to try to overrule his family’s wishes, the Supreme Court has decided.

Whether Drs. Brian Cuthbertson and Gordon Rubenfeld will go that route is still up in the air. Asked if they plan to take the dispute to Ontario’s Consent and Capacity Board, their lawyer, Erica Baron, would only say “I cannot comment on that.”

In a 5-2 decision, Canada’s highest court issued its much anticipated ruling on Friday, dismissing an appeal by the two doctors to remove Hassan Rasouli from life support without consent from his family or substitute decision-maker.

Writing for the majority, Chief Justice Beverley McLachlin disagreed with the doctors’ position that they were not actually providing medical treatment by keeping the man on life support.

She wrote that Ontario’s legal framework to resolve end-of life-disputes has been set out in the Health Care Consent Act for 17 years and should continue to apply. Under the act, withdrawal of life-support is indeed a form of treatment, McLachlin said.

She further wrote that the act makes it clear that consent to end life support must be sought from substitute decision-makers — in this case Rasouli’s wife, Parichehr Salasel — and that doctors who disagree can take the matter to the Consent and Capacity Board.

Rasouli, 61, was put on life support three years ago, following complications from brain surgery.

Salasel has refused to allow him to be removed from a ventilator and feeding tube, citing the couple’s Shia Muslim religion and a belief that her husband’s movements indicate some level of minimal consciousness.

The case has been closely watched by lawyers who specialize in health cases.

“The story has just begun, in a way,” said Daphne Jarvis, a lawyer with Borden Ladner Gervais, noting the case could very well end up before the Consent and Capacity Board. And from there, it could even end up back in the courts if a decision is appealed.

Some lawyers think that the Consent and Capacity Board, which deals mostly with disputes over mental health treatment, will be hearing a lot more end-of-life cases.

“Hopefully the publicity from this case will educate families who have a loved one at the end of his or her life. A lot of people think doctors are omnipotent, and if they say a patient should die, families might not question it. Now this gives them a sense of empowerment,” said lawyer Barry Swadron.

But lawyer Mark Handelman has a different take. In the vast majority of cases, families and doctors eventually reach consensus where there’s an end-of-life disagreement, he notes. But when they don’t, it’s the doctors who tend to acquiesce, he argued.

“I would encourage doctors to use this process instead of acceding to family members,” Handelman said.

Keeping brain-dead patients on life support “is a waste of valuable resources and a form of torture,” he said, arguing that it only prolongs the dying process.

The cost of indefinitely keeping a severely brained damaged patient on life support in an intensive-care bed has been pegged at about $2,000 a day.

The court’s decision was praised by the Advocacy Centre for the Elderly and the ARCH Disability Law Centre, which jointly had intervenor status in the case.

Older adults and persons with disabilities are disproportionately affected by the court’s decision because they are often negatively stereotyped and can suffer health conditions that place them at risk of having end-of-life decisions made on their behalf, said Jane Meadus, a lawyer with the Advocacy Centre for the Elderly.

“This decision ensures that the autonomy, independence and dignity of older adults are less likely to be compromised in end-of-life decision-making relating to withdrawal of life support,” Meadus said.

The court’s decision didn’t go the way the Canadian Critical Care Society — which also had intervenor status — wanted. Past president Dr. John Granton said the fact it was a split decision reflects the complexity of end-of-life issues, with which both the medical profession and general public struggle.

Nevertheless, he said he is pleased the case “raised the profile of the question and hopefully gets people talking about the issue … before these kinds of crises occur.”
The Euthanasia Prevention Coalition, another intervenor, was happy with the outcome.
“It’s exactly what we were looking for … . The values of families and individuals must be taken as paramount,” said coalition executive director Alex Schadenberg.

Dr. Andy Smith, chief medical executive at Sunnybrook Health Sciences Centre, said the dispute at the centre of this case is not unique to the hospital. The decision provides some clarity on what has been a “grey zone” for hospitals across the country, he said.

Kerry Bowman, a bioethicist at the University of Toronto, said he didn’t know whether the decision would result in a backlog of patients ending up in hospital intensive-care units, but added that it’s fair to ask about the impact on resources. It’s something that needs to be discussed, not on a case-by-case basis, but by society as a whole, he said.

Hospitals are under pressure to cut expenses and they operate pretty close to full capacity.

Fonte: Tuestar.com/Canadá