By Don Hutchinson
This past Monday, December 10, I was in the Supreme Court of Canada standing with the family of a man fighting for his right to life – and in that battle the lives of many other Canadians. It was an honour to hear words of appreciation from Hassan Rasouli’s daughter, noting that we understood the importance of religion to the life and decision of her family.
Mr. Rasouli suffered complications following what was described as “minor brain surgery to remove a benign tumour.” His doctors determined he was in a persistent vegetative state, had no hope of recovery and should be withdrawn from life support.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 a court injunction to prevent the doctors treating Mr. Rasouli from unilaterally removing him from life support.
In this case, the Ontario courts ruled that doctors in this situation must obtain consent, either from the patient or his substitute decision maker, prior to withdrawing medical treatment. If consent could not be obtained, the physicians’ option under Ontario law would be to continue treatment and proceed to the Consent and Capacity Board for a ruling. The Board – made up of 3 people: a doctor, a lawyer and a lay person – is required under the Health Care Capacity Act to hear from both sides and consider the patient’s wishes and beliefs, including religious beliefs, in the process of making a decision in the “best interests” of the patient.
On Monday, we heard from several lawyers, but I’ll focus on one, the lawyer for the doctors.
He argued that the decision to remove someone from a ventilator is not a decision about changing or discontinuing medical treatment (which would require consent) but rather a medical decision about discontinuing a “trial treatment” that has proven ineffective, a decision he argued should be made by doctors. He also argued that only the treating physicians could properly assess the medical benefit of any treatment. And that the medical system will fall into disarray if the court allows patients to demand whatever treatment they want.
The doctors’ lawyer further argued that family members become caught up in the emotion of making a difficult decision of this nature so it should be left to physicians – the doctor’s counsel was presenting physicians as a class that is seemingly unmoved by emotion – in order to avoid having the patient inflicted with the “terrible indignity” of being forced to be kept alive by artificial means. He noted his opinion that if there is disagreement it should be decided in the courts, not by the Consent and Capacity Board.
In short, it was argued that patients and their families are too subjective about keeping a loved one alive but doctors engage dispassionately and objectively in making life and death decisions. In his closing argument, counsel for the doctors also noted that there is the additional issue of the allocation of medical resources to ensure that those with the best chance of recovery have access to the medical care they require – an argument not mentioned throughout the process until there were less than 3 minutes remaining in the hearing and no one else was entitled to address the court.
I don’t think doctors generally, or these doctors in particular have malicious intent. Neither do I think their lawyer to be disingenuous. I do think that an increasingly win/lose cultural dynamic makes it necessary to step back, take a few good mind cleansing deep breaths and ask ourselves about the underlying beliefs and values of Canada as a nation, and – perhaps more importantly – as a people, human beings living together.
Are doctors more entitled to tell Canadians what to do than anyone else? My experience of living in a free and democratic nation is that doctors offer their opinions on treatment and then the patients decide. By the way, patients can no more force doctors to initiate a method of treatment than doctors can force patients to accept such treatment.
Let’s reflect on those remarks.
If the patient cannot speak for him or herself, then surely the doctor knows best, right? Not necessarily. In Canada we have long recognized that the doctor does not automatically know best. Our laws and practices recognize that physicians propose treatment options and patients decide. If an individual who cannot give consent for themselves has not given instruction or is incapable of giving instruction to a physician then someone who knows the patient well (or in some instances is appointed by government with the responsibility of learning about the patient) will become their substitute decision maker (SDM). The SDM is responsible to consider decisions from the perspective of the patient – including the patient’s worldview, religious beliefs, life experiences, etc – and to make decisions they believe to be in the best interests of the patient.
Doctors are people. SDM’s are people. People are not perfect; which doctors acknowledge through purchasing malpractice insurance. There may be disagreement about what each thinks is best for the patient. The recourse is to a legislatively mandated small group of people who are not connected to the patient or his treatment; have complementary training and experience to understand the issues presented to them; and, have a structured set of guidelines to assist them in making a decision to resolve the impasse. This latter group is the Consent and Capacity Board. Access to the Board is free.
In a nation where the Chief Justice of the Supreme Court of Canada has expressed concern that access to the courts is becoming increasingly difficult, one would think the solution of a Consent and Capacity Board would be welcome. There is no cost to the family or the doctors and the matter is resolved fairly quickly rather than being potentially tied up for years in court. However, physicians have access to one of the best funded legal structures in the country, the Canadian Medical Protective Association, and don’t need to worry about the expense of going to court. And, a court battle like this one could potentially secure them greater authority over patient treatment decisions. On the patient side, Hassan Rasouli’s family has been forced to pay substantial legal fees – risking all for their loved one – as the CMPA has argued and lost its case in the Ontario Superior Court and the Ontario Court of Appeal while heading to the Supreme Court of Canada. Going to court should not be the future of disagreement about consent. No family should have to choose between mortgaging their lives and assessing the value of a loved one.
We live in a nation where government determines the funding for our health care system. Doctors and administrators should not be asked to place a value on human life based on assessing likelihood of recovery and/or their opinion on quality of life in recovery matched against available bed space. Does the medical community really want that responsibility? It is the responsibility of government to ensure adequate funding or find an alternative delivery system that will provide for necessary treatment.
No one is looking to tell doctors what treatment to offer. And, the decision to discontinue treatment must rest with the patient, or his family. If the two can’t agree then why not access the low cost solution with medical and legal expertise rather than forcing any family into facing a decision of potential financial jeopardy; a financial decision that they might regret for spiritual, emotional, psychological or economic reasons for the rest of their lives? Perhaps, the answer doesn’t lie with the 7 judges of the Supreme Court who heard this matter but with the politicians who determine the priorities in spending taxpayers’ money. There is no price that can be placed on a life. However, in a society that has decided we are our brother’s keepers, there is a budget for the availability of medical services.