Supreme Court of Canada decision shows the need for Continuing Power of Attorney for Personal Care

The Cuthberton v. Rasouli case is about an Ontario man who became comatose following complications with minor brain surgery. While his condition has reportedly since improved, at the time the legal proceedings began his physicians determined that he was in a persistent vegetative state, had no hope of recovery and should be withdrawn from life support.

His family, including his wife who is a physician, disagreed with the diagnosis and sought an injunction to prevent the physicians from unilaterally removing Mr. Rasouli from life support. The Ontario courts ruled that doctors must obtain consent, either from the patient or his substitute decision makers, prior to withdrawing medical treatment. If consent is not obtained, the physicians’ option under current Ontario law would be to continue treatment and proceed to the Consent and Capacity Board for a ruling. The Board is required to hear from both sides and consider the patient’s wishes and beliefs, including religious beliefs, in the process of making a decision.

Patient wishes must be considered in regard to their medical care. In this case, Mr. Rasouli and his family also hold religious beliefs about life, and believe that life should be respected until all signs of life are gone. The family wants Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity Board.

The Supreme Court of Canada decided that under the Ontario Health Care Consent Act “treatment” requires consent from the patient or his substitute decision-maker; the definition of “treatment” under the Act includes the withdrawal of “life support that is effective in keeping the patient alive and forestalling death”; therefore, the withdrawal of life-sustaining treatment requires consent.

The Supreme Court noted that, where a physician disagrees with a substitute decision-maker’s refusal to consent to withdrawal, the physician can go to the Consent and Capacity Board and argue that either the substitute decision-maker is not acting in accordance with the patient’s prior known wishes, or where such wishes cannot be ascertained, is not acting in the patient’s best interests. If persuaded by the physician’s evidence and arguments, the Consent and Capacity Board can “substitute its own opinion for that of the substitute decision-maker.”

In other words, the Supreme Court decided that under the Health Care Consent Act, physicians do not have the authority to unilaterally withdraw life-sustaining treatment – they cannot withdraw treatment without consent. However, patients and their substitute decision-makers do not have an unconstrained right to receive any and all treatment – a refusal of consent to withdrawal can be displaced by the Consent and Capacity Board.

What did the Supreme Court not decide? It did not rule on matters beyond situations such as in the case involving Mr. Rasouli: “This case does not stand for the proposition that consent is required under the HCCA [Health Care Consent Act] for withdrawals of other medical services or in other medical contexts.” It did not open the floodgates to demands for treatment that simply won’t work – consent is required for the withdrawal of “life-support that is effective in keeping the patient alive and forestalling death.”

Accordingly, you need a Continuing Power of Attorney for Health Care, which delineates what you desire as to health care in situations such as Mr. Rasouli’s. Otherwise you are leaving your life and death decisions ultimately to a panel of four people who are not necessarily doctors to make the decision for you.

March 2015