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Who has the final say in end-of-life matters?

When to pull the plug on a loved one is always a controversial decision that often pits doctors and families against each other. For patients in Ontario hospitals, the final say could end up in the hands of the Consent and Capacity Board, an independent medical review panel created by the provincial government under the Health Care Consent Act.

This quasi-judicial tribunal, which has mostly been used in cases involving mental illness, has been elevated to the position of ultimate arbiter after a recent Supreme Court of Canada ruling that stated physicians can’t unilaterally withdraw life support from a patient if the family objects.

The decision marked the latest round in a three-year legal fight between the wife of Hassan Rasouli and doctors at Toronto’s Sunnybrook Hospital. Rasouli, 62, lapsed into a coma following brain surgery in October 2010 and has been kept alive ever since by the combination of a ventilator and feeding tube.

Parichehr Salasel, Rasouli’s wife and a physician, objected on religious grounds to the doctors’ decision to remove her husband — a Shi’ite Muslim — from life support, arguing his slight movements prove he’s not in a fully vegetative state and the hospital has an obligation to keep him alive.

Sunnybrook argued that keeping Rasouli on life support did not constitute treatment, but that argument was quashed in a 5-2 decision by the SCC.

Kirsten Crain, a health lawyer at Borden Ladner Gervais LLP, says the Supreme Court verdict confirmed the “withdrawal of life support is treatment which requires consent from the substitute decision-maker.”

She also notes the decision gives the board the final say in these end-of-life disputes. “Ultimately it’s the Consent and Capacity Board that is empowered to make the decision about whether the [substitute decision-maker] is acting appropriately,” says Crain.

While the Cuthbertson v. Rasouli case is rare, the board could see an increase in similar end-of-life matters, says Crain. “Clearly what the Supreme Court has done is given a big check mark to the Ontario legislative approach,” she adds. “Who knows whether or not other provinces who don’t have a similar framework will examine whether or not they should adopt them.”

It was not immediately clear what, if any, impact the Rasouli decision will have on other hospitals. With beds in intensive care units already at a premium, some have argued doctors could become far more scrutinizing about whom they admit.

Another factor is cost: some figures peg a year-long ICU stay at roughly $1 million per patient. “In the doctors and hospitals I advise, I don’t see the primary concern being about money,” says Crain, who nevertheless acknowledges admitting decisions could be influenced by the Rasouli ruling. “Is this going to cause people to withhold life support in the first place and not even have it on the menu of choices that they’re offering to patients, because they don’t want to be stuck later on?”

Toronto’s St. Michael’s Hospital has not had a similar case and does not anticipate any major fallout from the Rasouli decision, says spokesperson Leslie Shepherd. “The SCC ruling doesn’t change anything for us,” says Shepherd, adding the hospital doesn’t see it as a legal issue, but a medical one.  “For us, it’s a patient-care issue between families and their health-care providers.”

Crain says the issue centres around substitute decision-makers and adds these fights can be prevented by people taking the time to put their end-of-life wishes in writing well before they get sick: “So that the rest of us don’t have to try to divine later on what the person would have wanted in the situation.”

In absence of a living will or power of attorney, family members or other substitute decision-makers must act in the best interests of the patient, says Crain. “There are some extreme cases like this one where you just can’t get to that common view of what’s best for the patient and in those cases you do have to go to the Consent and Capacity Board.”

Read more:

Consultations on Physician-Assisted Dying

Cuthbertson v. Rasouli