by Thaddeus Mason Pope, JD, PhD
On October 18, 2013, the Supreme Court of Canada issued its long-awaited opinion in Cuthbertson v. Rasouli. Many lawyers and ethicists have already offered significant commentary on the case. So, after briefly summarizing the litigation and the ruling, I will proceed to draw some important, but less obvious, observations and implications.
Summary of the Case
Cuthbertson v. Rasouli was a typical medical futility dispute. The patient, Hassan Rasouli, has been a patient in Toronto’s Sunnybrook Health Sciences Center for over three years, dependent on life-sustaining treatment. By early 2011, Mr. Rasouli’s clinicians determined that ICU medicine offered him no prospect for recovery or benefit. Therefore, they thought it was appropriate to stop life-sustaining medical treatment. But Mr. Rasouli’s family would not consent to that proposed treatment plan. The family determined that his Muslim faith required that they continue.
Affirming two lower courts, the Supreme Court of Canada held that Ontario clinicians almost always need consent to stop life-sustaining treatment. Because ICU patients almost always lack decision making capacity, that consent must almost always come from a substitute decision maker. Except in rare situations of pure physiological futility, clinicians always need consent. The Court confirmed: “The law is now clear that treatment cannot be administered [or withdrawn] without consent, irrespective of the ethical imperative that physicians may feel.” [Rasouli ¶ 73]
But while a clinician cannot “veto” a surrogate, neither can a surrogate unconditionally “veto” a clinician. The authority for treatment decisions remains patient-focused. If a clinician feels that the surrogate’s refusal to consent is contrary to the patient’s wishes or best interests, then they can ask the Consent and Capacity Board to help get that consent.
Holding Driven by Statutory Interpretation, Like Baby K
It is important to emphasize that Rasouli is a statutory interpretation case. The Supreme Court of Canada did not reach its “consent always required” rule on the basis of either public policy or medical ethics. It was bound by the language of the Ontario Health Care Consent Act.
In this respect, Rasouli was decided just like one of the most famous medical futility cases in the United States, In re Baby K. There, the U.S. Court of Appeals for the Fourth Circuit recognized that treating an anencephalic infant was probably outside the prevailing standard of care. Nevertheless, the court held that the hospital had a legal duty to treat the baby whenever it arrived at the hospital in respiratory distress. The federal EMTALA statute categorically requires hospitals to stabilize the emergency medical condition of any patient who arrives on hospital property.
The court famously held: “It is beyond the limits of our judicial function to address the moral or ethical propriety of providing emergency stabilizing medical treatment to anencephalic infants. We are bound to interpret federal statutes in accordance with their plain language and any expressed congressional intent.” Like the Fourth Circuit, the Supreme Court of Canada determined that it was similarly constrained by the applicable statute. It was bound by the language of the Ontario Health Care Consent Act.
Limitations of the Consent & Capacity Board
The Supreme Court of Canada determined that it must defer to the treatment and consent rules designed by the Legislative Assembly of Ontario. But it did not find that as repugnant a result, as the Fourth Circuit did, in In re Baby K. Indeed, the Supreme Court of Canada praised the Consent and Capacity Board. And such praise is well-deserved. The tribunal has proven to be an appropriate and effective mechanism for resolving medical futility disputes. Only five percent of these conflicts are intractable and cannot be resolved collaboratively at the hospital. As I have written (here and here and here), surrogate replacement can resolve most of this five percent.
But as at least the dissenting Rasouli justices recognized, the Consent & Capacity Board cannot resolve all of the five percent. In cases like Rasouli, for example, where the family asks for continued treatment because of the patient’s very own religion, it is extremely unlikely that there is a statutory basis to replace the substitute decision maker. Nevertheless, in Ontario, as in New York, Idaho, Oklahoma, Minnesota (for some types of surrogates), and other “red light” states, surrogate replacement is the only available dispute resolution mechanism for intractable medical futility disputes.
Absence of a Red Light Is Not a Green Light
Even had the Supreme Court of Canada removed the “red light” of the Ontario HCCA, Ontario clinicians still would not have the “green light” of the Texas Advance Directives Act. They would not have safe harbor legal immunity to unilaterally withhold or withdraw treatment. Ontario clinicians would still be subject to civil and disciplinary sanctions, if the family or licensing authority established that a prudent practitioner would not have withheld or withdrawn life-sustaining treatment under the circumstances. And given extreme variability in practice, it is difficult to eliminate such risk of being found to have deviated from the standard of care.
On the other hand, the Supreme Court of Canada did observe that “the physicians’ professional opinion that sustaining life in Mr. Rasouli’s situation confers no medical benefit . . . appears to reflect a widely accepted view in the medical community.” [Rasouli ¶ 38] So, perhaps we are moving toward consensus, in at least some clinical situations, on what constitutes the medically and ethically appropriate use of intensive medicine.
What Is a Fair Dispute Resolution Mechanism?
Since the Supreme Court of Canada concluded that the existing formal dispute resolution mechanism, the Consent and Capacity Board is the only one authorized under the Ontario HCCA, the Court did not carefully consider alternatives. But that is exactly what most of us our struggling with. Most hospitals are not in “red light” jurisdictions like Ontario. They have the legal flexibility to develop a dispute resolution mechanism that could supplement surrogate replacement.
Since the dissenting justices thought that clinicians should not be limited to the CCB, they went further in outlining alternative mechanisms. [Rasouli ¶¶ 171-72] But these are not articulated with much detail or precision. Moreover, the majority “rightly questioned whether the legal tools [the dissent] relies on to provide judicial oversight of physician’s decisions to withdraw life support are sufficient for the task.” [Rasouli ¶ 109] For example, the majority suggested that it may “heighten the vulnerability of incapable patients” to place the burden “on family or friends to initiate court proceedings to prevent the withdrawal of life support, rather than on physicians to obtain consent before acting.” [Rasouli ¶ 114]
Many clinicians, ethicists, and lawyers had been looking to the Supreme Court of Canada for guidance as to the relative rights and duties of physicians and families in a medical futility dispute. But the Supreme Court did not meaningfully grapple with these questions about role of the family, versus the role of clinicians, in end-of-life decisions. Those questions had already been answered seventeen years earlier, by the Legislative Assembly of Ontario.