Withdrawal From Life Support – Whose Decision Is It?

There is no doubt that receiving life support is "treatment" as defined by Ontario's Health Care Consent Act, (the "HCCA") and it requires consent. What about the withdrawal of life support? Is the withdrawal of life support "treatment", a medical procedure necessitating consent?

In a recent case, Cuthbertson v. Rasouli1, the Supreme Court of Canada, ruled in a split 5-2 decision that the withdrawal of life support is "treatment" for purposes of the HCCA and therefore, consent is required.

Mr. Rasouli's physicians determined Mr. Rasouli should be removed from life support as continued life support (on which he had been since 2010) would be futile and may even be harmful. Before becoming unable to make decisions, Mr. Rasouli had not expressed whether or not he wished to be kept on life support. Therefore, the physicians were obliged to seek Mr. Rasouli's substitute decision maker's consent to the withdrawal. The substitute decision maker, Mr. Rasouli's spouse, Ms. Salasel, was required to consider whether the removal of life support (and inevitable palliative care and the eventual death that followed) was in Mr. Rasouli's best interest in granting consent. Ms. Salasel did not consent and she applied to the Ontario Superior Court of Justice for an order restraining the physicians from removing life support without her consent. The physicians cross-applied, arguing that consent is not required when in their medical opinion, continuing life support is futile. The Ontario Superior Court of Justice agreed with Ms. Salasel and so did the Ontario Court of Appeal. The physicians' appeal heard by the Supreme Court of Canada was dismissed. The highest court held that withdrawal of life support necessitated the patient's consent and the decision was ultimately, not one which, was to be left to physicians. However, this challenge came at a significant expense to the family since Mr. Rasouli did not recover his litigation costs.

What can we take away from Rasouli?

Medical procedures with a risk of permanent incapacity, are procedures before which the patient should clarify his or her wishes with respect to life support. The patient, or a substitute decision maker (Eg. Guardian, Attorney for Personal Care), must consent to the withdrawal of life support. If the patient's wish to consent or not to consent is not made clear before the procedure, substitute decision makers should make efforts to understand the patient's beliefs about prolonging life through...