What Futile Care Really Means

Hassan Rasouli, subject of historic decision by Supreme Court of Canada, waiting to be transferred out of hospital that wanted to remove him from ventilator

By Dave Andrusko

Rasouli family with lawyers at Supreme Court last year.

When last we wrote about Hassan Rasouli, the Supreme Court of Canada had upheld a decision of the Ontario Court of Appeal, which concluded that Sunnybrook Health Sciences Centre had to go through a legally established futile care administrative process (the Consent and Capacity Board) and couldn’t unilaterally remove Rasouli from a ventilator. (See “Two huge court victories thwart legalization of euthanasia in Canada”)

Well, we now know, courtesy of a column written today by bioethicist Wesley J. Smith, that as of the end of 2013, Rasouli is on a waiting list to be transferred out of Sunnybrook to another health-care facility, according to Teresa Boyle of the Toronto Star.

Boyle describes this as good news—“When he is transferred out of Sunnybrook Health Sciences Centre, he will no longer be under the care of doctors who had wanted to remove him from life support”—and bad news—“But when he becomes a resident of Toronto’s West Park Healthcare Centre, he will have to pay a monthly basic accommodation fee of $1,707, an amount his family says they cannot afford.” (Boyle notes later in her story that “depending on residents’ income, the fee can be dropped, possibly even eliminated. Rate reductions are also available for residents with eligible dependant spouses or children.” Rasouli and his wife have two adult children who are students.)
The Rasouli case has tremendous implications and is part of an ongoing worldwide battle over “futile care” (which in fact does not mean that the care itself is futile but that someone else deems the life the patient is leading to be “futile”) and a softening of laws against euthanasia.

Hassan Rasouli underwent surgery on October 7, 2010, at Sunnybrook Health Sciences Centre for a benign brain tumor. He experienced a bacterial meningitis infection that caused him significant cognitive damage.

A little over a week later he was placed on a ventilator and a tube was inserted to provide him hydration and nutrition.

When Brian Cuthbertson and Gordon Rubenfeld, his doctors, determined that Rasouli was in a persistent vegetative state and decided to take him off the ventilator, Rasouli’s wife, Parichehr Salase, refused to give consent. The legal tug of war began soon after.
The Rasouli family insisted (correctly, as it was later demonstrated) that Hassan was not in PVS and in fact was responding. They sought an injunction from the Superior Court of Justice to prevent the doctors from unilaterally withdrawing the ventilator. Justice Susan Himel heard the case in early 2011 and decided that the Rasouli family did not need an injunction because the doctors were required to obtain consent before withdrawing medical treatment.

The doctors appealed the decision of Justice Himel but were rebuffed by the Court of Appeal for Ontario which unanimously decided that doctors did not have the unilateral right to withdraw life-sustaining treatment. Instead they held that doctors need to seek consent from the Consent and Capacity Board when consent is refused by the person or the attorney for personal care. (See “Landmark Victory Prevents Doctors from Unilaterally Removing Patient’s Life Support”)

In October 2013, the Supreme Court of Canada upheld that decision on a 5-2 vote.

Writing for the majority Chief Justice Beverley McLachlin said that “By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way.” She added, “The physicians’ attempt to exclude withdrawal of life support from the definition of ‘treatment’ … cannot succeed. …While the end‑of‑life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA [Ontario's Health Care Consent Act].”

Source: NRLC News