Commentary on the Supreme Court of Canada's Decision in Cuthbertson and Rubenfeld v. Rasouli
The Supreme Court of Canada recently released its long-awaited decision in the case of Cuthbertson and Rubenfeld v. Rasouli. The case involves Hasan Rasouli, a patient who has been in a coma, kept alive with a mechanical ventilator and feeding tube since October 2010. Mr. Rasouli’s physicians (the “Physicians”) formed the opinion that Mr. Rasouli was in a persistent vegetative state, meaning that he would never again regain consciousness. They believed that Mr. Rasouli derived no benefit from ongoing treatment, and that he would suffer a long, slow death due to the complications that can be predicted for any patient in such a state. Accordingly, the Physicians proposed to withdraw the life sustaining treatment with a ventilator, and to provide only palliative or comfort care to the patient.
Mr. Rasouli’s wife (and Substitute Decision Maker) refused to consent to the Physicians’ proposal to withdraw treatment. She believed that the patient was indeed aware of his surroundings, and was improving. Further, Mr. Rasouli and his family are of the Muslim faith, and for this reason, contended that her faith required that care be continued until all signs of life were gone.
To prevent the withdrawal of care to the patient, Mr. Rasouli’s family applied to Ontario’s Superior Court of Justice for an injunction preventing the physicians from withdrawing life-sustaining treatment and requiring them to apply instead to Ontario’s Consent and Capacity Board (“CCB”) to determine the patient’s best interests. In response, the physicians applied to the Court for a declaration that they were not required to continue to provide treatment which was of no benefit to a patient and which fell outside the standard of care. They argued that they had no obligation to offer treatment that would not benefit the patient and that the consent of a patient in a persistent vegetative state was not required for withdrawal of treatment.
The Superior Court granted the family’s injunction and referred the case to the CCB for a determination of Mr. Rasouli’s best interests. Treatment was to be continued in the interim. The Physicians appealed that decision to the Ontario Court of Appeal, which upheld the Superior Court’s decision. The Physicians then appealed that decision to the Supreme Court of Canada, which decided the appeal in favour of Mr. Rasouli.
By a 5-2 majority, the Supreme Court of Canada dismissed the appeal. The Supreme Court’s decision can be found here.
The case received extensive coverage, with stories in the National Post and the Globe and Mail, among other media.Many lawyers and other commentators have already opined on this case, including:
Supreme Advoacy LLP, which summarized the majority and dissenting decisions
The Medico-legal Society of Toronto, which outlined the reasons for the majority finding that withdrawal of life support requires patient consent
Prof. Arthur Schafer, who called the decision a Win for families, loss for common decency
Albertos Polizogopoulos, who called the decision a Win for Patient Rights and Beliefs — And Cause for Concern
Mark Handleman, whose comprehensive paper reviewed what the Supreme Court of Canada did and did not say about Consent to Withdrawal of Life Support
Daphne Jarvis, Katharine Byrick and Kristen Crain, who commented on The impact of the SCC decision in the Rasouli case
Prof. Colleen Flood and Catherine Deans, who wrote about Rasouli and the Elephant in the Room, namely the absence of discussion in the decision regarding the allocation of resources to patients like Mr. Rasouli
André Picard, who called the Court’s decision a victory for due process and a clear message to individuals and governments that they should get their legal houses in order.
We won’t add to the commentary on this case, except to express our appreciation to the Courts, parties, and counsel involved for helping to clarify the law on consent to treatment in Ontario.
