Doctors await Supreme Court roadmap for right-to-live cases
KIRK MAKIN
The Globe and Mail
PublishedMonday, Dec. 10 2012, 1:39 AM EST
The Supreme Court of Canada is set to create a blueprint for right-to-live
cases Monday with just seven judges in attendance.
While the court does not release a list of presiding judges in advance, one
of the its newest members Mr. Justice Michael Moldaver of the Ontario
Court of Appeal cannot sit on the historic case because he helped write
the judgment under appeal.
The case involves Hassan Rasouli, a 61-year-old, retired engineer who has
been in a near-vegetative state at Torontos Sunnybrook Health Services
Centre for almost two years.
The Supreme Court habitually attempts to provide the strongest possible
guidance in key cases by sitting as a full panel of nine. However, Chief
Justice Beverley McLachlin is virtually certain to exclude a second judge in
order to avoid the possibility of a 4-4 tie vote on the outcome.
Doctors at Sunnybrook have been trying to withdraw life support without the
Rasouli familys consent so that Mr. Rasouli can die. They believe he has no
hope of recovery and can only be harmed by further treatment.
However, the Rasouli family has opposed their efforts at every turn. They
insist that Mr. Rasouli can communicate and may partially recover from a
post-surgery infection that devastated his brain.
At the extreme edges of the case, the court could side with the doctors and
given them unilateral power to withdraw life support, or it could conclude
that the family must give their consent before doctors can allow Mr. Rasouli
to die.
In between those poles are a handful of options that centre on the
intervention of impartial arbiters.
Ordinarily, an impasse between doctors and a family in Ontario are resolved
by a provincial Consent and Capacity Board.
However, many doctors object to the fact that the board is composed only of
lawyers, psychiatrists and community members. Thus, another alternative the
Supreme Court could potentially reach for is to recommend consent and
capacity boards that include a strong component of physicians who are
experienced in intensive care treatment.
The court system furnishes a third option. However, court processes tend to
consume an inordinate amount of time and judges rarely welcome the
obligation to decide right-to-die litigation.
I think the worst outcome would be for these things to go to court, said
Dr. Anand Kumar, a Winnipeg intensive care physician. Clearly, the courts
dont want to deal with them. Id be perfectly happy with a consent and
capacity board that has some physicians on it.
Dr. Kumar estimated that approximately half of the countrys doctors would
be satisfied with decision residing with such a board.
Meanwhile, lawyers who work with disabled or elderly clients are looking to
the Supreme Court to bring clarity to an uneven, emotionally-fraught area of
law.
Jan Goddard, a Toronto lawyer who specializes in the field, said there has
been a strong move toward the creation of documents that express peoples
wishes for how they should be treated if they lose their capacity for
decision-making.
However, she said that the Sunnybrook doctors threw a curve ball at these
efforts. What they tried to do was outside of the expectations of most of
us, Ms. Goddard said.
Termination of treatment that supports life is probably the issue most
commonly raised by clients making advance directives, she said. I wonder
what those conversations might be like between lawyer and client, or a
person and his or her substitute, if the court agrees with the doctors
position that consent is not required?
A legal intervener in the case, The Canadian Critical Care Society,
maintains that doctors must have the power to discontinue any treatment that
is futile or even harmful to a patient.
Critical care treatment should only be given when it may alleviate an
illness or provide some permanent benefit, it said in a written brief. When
there is no hope of either, critical care will only result in needless
suffering.
However, another intervener, the Canadian Association of Critical Care
Nurses, argues that doctors alone cannot make the unilateral decision to
withdraw life support. In a written brief, they propose that disagreements
between doctors and a patients family should be settled in the courts.
Gary Hodder, a lawyer for the Rasouli family, said that the state of Mr.
Rasoulis health ought to not be a key factor in the appeal.
This case is about what process we should follow, Mr. Hodder said in an
interview. Mr. Rasouli cannot decide for himself, so somebody has to decide
for him. Our position is that, in Ontario, we have a statute that says how
that decision should be made and the case is no more complicated than
that.
That statute the Health Care Consent Act assigns the Consent and
Capacity Board to make those decisions.
We do not presume to know who the board would rule in this case, but we do
think its the place where this should properly be argued, Mr. Hodder said.
A lawyer for the doctors, Harry Underwood, is asking the Supreme Court to
confirm that it is a doctors decision as to whether to offer treatment or
continue to offer it, based on an incapable patients best interests.
He does not see the issue as being one of informed consent.
Mr. Rasouli, whose brain was largely destroyed by a post-surgery infection,
receives around the clock care. A mechanical ventilator does his breathing,
a tube inserted into his stomach provides nutrition and fluids, while a
catheter drains his urine. Medications maintain his blood pressure and he
must be turned to prevent bed sores Nevertheless, the family is convinced
that Mr. Rasouli is conscious and appreciative of the battle they have waged
on his behalf.
While all parties to the Rasouli case have all shied away from the question
of resources expended on end-of-life care, few dispute that it is an
important consideration for any hospital.
However, Dr. Kumar said the biggest question for him involves his oath to do
no harm to a patient.
To do an adequate job, you have to be psychologically invested in it, he
said. Yes, I could probably come by Mr. Rasoulis bed every morning and
change the ventilator or start some antibiotics if I could put away my
ethical qualms. But as he deteriorates and I have to be at the bedside every
15 minutes, I have to be engaged in it.
I cant be engaged when I know there is going to be death, no matter what I
do, Dr. Kumar said.
When the Ontario Court of Appeal heard the case last year, it upheld a lower
court ruling saying that, in cases where death is imminent and doctors
propose to withdraw life support and replace it with palliative care, that
care becomes part of a treatment package for which consent is required from
a patient or substitute decision maker.
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