In a recent landmark decision, relating broadly to the area of Elder Law, the Supreme Court of Canada held that two Ontario physicians could not unilaterally withdraw life support for a patient who they believe is in a persistent vegetative state with no realistic hope for recovery. You should note, however, that because the case involved Ontario legislation, the decision is most narrowly applicable to Ontario. In fact, the Court went out of its way to state that this case does not resolve the debate over whether a next-of-kin’s decision should trump a physician’s interest in not being forced to provide non-beneficial medical treatment. Nevertheless, the reasoning and discussion reveals that the majority of the Court is clearly inclined to give families greater control over life-ending medical decisions, which could potentially have an impact on cases dealing with the tension between physicians and families when their loved ones are on life support.
Cuthbertson v. Rasouli, 2013 SCC 53 concerned a patient who developed an infection that caused severe brain damage following a surgery to remove a benign brain tumour. As a result, the patient has been unconscious since October 2010. The appellant physicians argued that: (1) life support that is not “medically indicated” is not “treatment” under the Ontario legislation; (2) in any case, the withdrawal of treatment does not itself constitute “treatment” under the Ontario legislation; and (3) requiring consent for the withdrawal of life support will place them in an untenable ethical position.
The majority of the Court rejected these arguments. The Court held that “treatment” was broadly defined under the Ontario legislation and should not be confined to procedures that are of medical benefit in the view of the patient’s physicians. Similarly, the Court held that the definition of “treatment” was broad enough to extend to the withdrawal of life support in the circumstances of this case. While the Court acknowledged physicians may feel that their legal obligations not to withdraw life support are in tension with their professional or personal ethics, the Court reasoned that such tensions are inherent to medical practice and that no legal principle can avoid every ethical dilemma.
In Ontario, the Health Care Consent Act guides physicians through these difficult ethical dilemmas. If the substitute decision-maker refuses consent to withdraw life support based on a patient’s prior wish, the physician may seek direction from the Consent and Capacity Board on whether the wish is applicable to the patient’s current circumstances or request permission for the substitute decision-maker to depart from the wish. Where there is no applicable prior wish, the substitute decision-maker must act in the best interests of the patient. If the physician feels that the substitute decision-maker has not done so, he or she can challenge the decision before the Consent and Capacity Board.
Since British Columbia does not have an independent dispute resolution board similar to that of Ontario, disputes between families and physicians over consent regarding withdrawal of life support should be resolved by the Supreme Court of British Columbia in accordance with the Health Care (Consent) and Care Facility (Admission) Act.