On October 18, 2013, the Supreme Court of Canada released its decision in Cuthbertson v. Rasouli, 2013 SCC 53. The case, which attracted national attention, dealt with Hassan Rasouli, a patient being kept alive by mechanical ventilation at Sunnybrook Health Sciences Centre in Toronto, and whether Mr. Rasouli’s doctors could terminate life-sustaining procedures without the consent of Parichehr Salasel, his wife and substitute decision-maker.
Mr. Rasouli was admitted to Sunnybrook in October 2010 for surgery on a benign brain tumour. Unfortunately he developed an infection after surgery and suffered extensive brain damage. He became unconscious and was put on mechanical ventilation. Without such life-sustaining procedures, it was widely expected that he would pass away. His doctors agreed amongst themselves that “Mr. Rasouli was in a persistent vegetative state, that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope for his medical recovery.”
Ms. Salasel, who trained as a doctor in Iran, disagreed with the diagnosis. She felt that her husband was not “in a state of permanent and irreversible unconsciousness” and, in fact, had a higher level of consciousness than the doctors at Sunnybrook had stated. Further, she was adamant that her husband, a devout Muslim, would in any regard want to be kept alive.
Not surprisingly, an impasse quickly developed between Ms. Salasel and the Sunnybrook doctors, who sought to terminate life-sustaining procedures on the basis that continuing to provide such procedures offered no medical benefit to Mr. Rasouli and could actually cause harm as he got older and his health deteriorated.
Importantly, the Sunnybrook doctors decided not to bring their argument before Ontario’s Consent and Capacity Board, a tribunal established under the Health Care Consent Act, 1996. As such, the case moved through the court system. Ms. Salasel sought an injunction preventing the doctors from terminating Mr. Rasouli’s mechanical ventilation and argued that any challenge of her refusal to give consent should have been brought to the Consent and Capacity Board. The doctors sought a declaration that Mr. Rasouli was in a “permanent vegetative state,” that consent is not required to withdraw life-sustaining procedures where such procedures are futile, and that the Consent and Capacity Board is not the appropriate forum to decide these issues.
In a 5-2 split, the Supreme Court agreed with Ms. Salasel that ultimate determination of whether the doctors can terminate Mr. Rasouli’s life-sustaining procedures rests with the Consent and Capacity Board. While “end-of-life” disputes used to be handled by the courts, the Health Care Consent Act, 1996 and the creation of the Consent and Capacity Board changed this.
Ontarians can express their wishes with respect to their health care, including those relating to end-of-life, under section 21 of the Health Care Consent Act, 1996. If a person’s wishes are known, his or her substitute decision-maker is usually required to comply with those wishes. If a person does not actually express his or her wishes, as Mr. Rasouli failed to do, then his or her substitute decision-maker is required to act in accordance with the person’s “best interests.” Best interests must be informed by certain factors like the person’s medical condition, if treatment is likely to improve his or her condition or harm it, and the values he or she held while mentally capable.
Doctors who feel that a substitute decision-maker is not actually acting in accordance with a person’s best interests can apply to the Consent and Capacity Board. If the Board agrees with the doctors, then it can permit them to act as they believe is in the person’s best interests, which could include terminating life-sustaining procedures.
Given the Supreme Court’s decision, we may not have seen the end of this saga. The Sunnybrook doctors may still apply to the Consent and Capacity Board. If they do, the fight over Mr. Rasouli’s life could continue.
Part of Ms. Salasel’s opposition to the Sunnybrook doctors was based on her knowledge of Mr. Rasouli’s religious beliefs. However, Mr. Rasouli did not actually express his wishes with respect to terminating life-sustaining procedures. As such, it is not clear what Mr. Rasouli himself would have wanted.
In Ontario, we have a document called a “Power of Attorney for Personal Care,” which allows the person or persons you name as your “attorney” or “attorneys” to make personal care decisions on your behalf if you become mentally incapable of making personal care decisions for yourself. Personal care decisions relate to health care, nutrition, shelter, clothing, hygiene and/or safety.
An attorney acting under a “Power of Attorney for Personal Care” has broader authority than a simple “substitute decision-maker” would have. There is a default list of people who can act as your substitute decision-maker if you fail to have a Power of Attorney for Personal Care and you become mentally incapable, but they may not necessarily be the people you would want making your personal care decisions. As such, it is important for all adults in Ontario to have valid Powers of Attorney for Personal Care naming an appropriate attorney or attorneys.
Clients often ask about “living Wills.” Living Wills, also called “advance directives,” deal with your wishes for what should happen to you if you become mentally incapable, particularly if you are very ill. A living Will is a misnomer, as your Will has to do with how your property is to be distributed after your death (not your personal care wishes for during your lifetime).
Living Wills can include so-called “do not resuscitate” or “no hope” clauses, which confirm that if you have a terminal condition and there is no reasonable hope of recovery (both of which are determined by your doctor) that you do not wish to be kept alive artificially. Living Wills can also express that you wish to live in your home for as long as reasonably possible.
Living Wills or advance directives can be included in your Power of Attorney for Personal Care. The benefit of including them is that your attorney(s) will know exactly what your wishes are if that particular situation arises. This can make the difficult decision to terminate life-sustaining procedures – one which can be extremely difficult if it involves a spouse or a parent – a little bit easier for the attorney(s). As noted above, if your wishes are known to your attorney(s), as they would be if they were included in your Power of Attorney for Personal Care, the wishes must generally be followed. Failing to properly plan for your potential incapacity and/or death has far greater consequences than the momentary unpleasantness you may feel when you turn your mind to these topics. Not only will it usually end up being more expensive and time-consuming for your loved ones if you fail to properly plan, but families have actually fallen apart over figuring out what Mom or Dad would have wanted in his or her final days. This is not a legacy you want to leave to your loved ones. Do not put your family through the heartache of trying to figure out what you would have wanted, especially when you have the chance to tell them directly yourself.
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.