CUTHBERTSON v RASOULI (2013)

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If you are not already familiar with the story that led to the Supreme Court ruling on Cuthbertson v. Rasouli, please read these articles to gain an understanding of the complexities surrounding the Supreme Courts decision.

The Rasouli family, from left to right: son Mehran Rasouli, daughter Mojgan Rasouli, Hassan Rasouli and Parichehr Salasel. (Photo: CBC)

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To understand the Supreme Courts decision (Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341) and whether Mr. Rasouli’s wishes should be respected on legal grounds, we must comprehend the legislature backing the decision. The Health Care Consent Act (c. 2, Sched A) (HCCA) lays out the foundations for consent to treat, capacity, emergency treatment, and liability protection. Since Mr. Rasouli was incapacitated, Section 20 ‘Consent’ of the HCCA ranks possible substitute decision-makers (SDM) as a hierarchy. There was no argument between the family, courts, or physicians on who the SDM is — Mrs. Salesel. Next, we must consider what she was asking; maintaining life support as it was the expressed wishes of Mr. Rasouli, according to Mrs. Salasel. The attending physician Dr. Cuthbertson argued that life-support is not “medically indicated” and is not a “treatment” under s.2(1) of the HCCA and that the withdrawal of it does not constitute “treatment”; therefore, it does not require the consent of the SDM. 

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The Health Care Consent Act, (1996, S.O, c.2, ‘interpretation’, 2(1)) defines treatment as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan…”

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The central objection to this ruling surrounds the definition of treatment. The Supreme Court found that the removal of Mr. Rasouli’s life support fell within the definition of “treatment” and required consent. The Supreme Court ruled that the definition was amply broad and that the requirement for consent cannot be determined by medical benefit or futility. With the facts presented and as the HCCA is currently written, it is on these legal grounds that I believe we should respect Mr. Rasouli’s wishes as expressed by his SDM to remain on life-support.

Looking at this case from a Physicians’s perspective, you must advocate on behalf of your patient, their family, the hospital, and even the community needs. This perspective is a juggling act of emotions and resources; determining what is best for the patient is always at the forefront of the discussion. With Mr. Rasouli’s case, his family noticed ‘signs of life’ where the physicians declared him in a persistent vegetative state. End-of-life care is the most emotionally driven decision a SDM will incur.

To suggest removing Mr. Rasouli’s life support, one fact that could change my opinion is that if Mr. Rasouli had personally expressed his wishes differently (not wanting life support) — in some form (advance care directive, will, a note, etc.) of communication — while he had the capacity. This fact would change the hierarchy of decision-making within the HCCA. However, I believe the family would still pursue an injunction in this case; although, it may alter the courts final decision, also allowing my conclusion to fall within the courts views once again.

Mr. Rasouli on life support with wife and daughter. (Photo: Toronto Sun)

To examine this legal decision from an ethical perspective, the course modules presented us with the IDEA framework. We have examined the case’s facts and appraised both the physicians’ and Mrs. Salasels’ arguments. The options presented are maintaining life support, withdrawal of life support and moving to palliative care, or moving Mr. Rasouli into private care at the family’s cost. Removal of life support that keeps a patient alive impacts patient autonomy in the most fundamental way and goes against the HCCA. The decision to stop treatment will ultimately lead to Mr. Rasouli’s death. Ethically, physicians must follow the ‘do no harm rule’ and ceasing a treatment that will lead to death must be harmful?

This is where the physicians argue that continuing the treatment does more harm, further complicating the situation. The family could have moved Mr. Rasouli out of the ICU into private care, but at cost they could not sustain. This presents another ethical challenge, knowing that forcing this option would lead to Mr. Rasouli’s death when the family could no longer afford the treatment. The physicians were unable to foster trust with Mr. Rasouli’s family. It was hard to determine the significance of cultural aspects from the Supreme Courts ruling. However, from reading the news articles, it appears culture played a significant role in the family’s decision-making process in keeping Mr. Rasouli alive. Cultural complexity in end-of-life care and presents a considerable challenge between physicians and family members.As the HCCA is written, I must agree with the Supreme Courts’ legal decision. The HCCA legislation defines the rules we must follow as a society. It is unfortunate that end-of-life care decisions come down to the interpretation of a definition; ethically, we have no other reason to believe that Mr. Rasouli expected different treatment. As the law stands, it is his right to continue treatment.

 

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“The only easy day was yesterday”

References

1. Cuthbertson v. Rasouli. (2013). SCC 53, [2013] 3 S.C.R. 341
   https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13290/index.do
2. Health Care Consent Act. (1996). SO 1996, Chapter 2, Sch A,
   https://canlii.ca/t/5354b 
3. Queens University. (2021). BMED/LISC 373 – Health Ethics, Law, and Policy – Modules 3 & 4.