Posts tagged ‘care’

November 13, 2013

One Take on the Rasouli Decision

Many have commented on the recent Supreme Court of Canada decision in the Rasouli case and it is interesting to hear different views. The case deals with one aspect of how we deal with end of life decisions. The issue – who decides when life support should or should not be continued where the measures may have no medical or quality of life benefit to the patient? The Court upheld the decision of the courts below, holding that where a substitute decision maker under the Ontario Health Care Consent Act (“HCCA”) does not consent to the withdrawal of life support, even where the patient’s physician is of the opinion that life support does not provide a medical benefit to the patient, a physician’s only remedy is an application to the Consent and Capacity Board (the “Board”) established under the HCCA. The Board’s power is to review the decision of the substitute decision-maker to determine whether she has complied with the rules for giving or refusing consent to treatment set out in the HCCA. If the Board finds that she has, apart from any appeal available under the HCCA, life support will continue and the physician has no further legal recourse.

In my view, and I believe the view of most commentators, the decision was not unexpected. What I found interesting about the case though was the fact that it was not a majority decision. Two Justices, Abella and Karakatanis, dissented from the majority. To me, the dissent reflects some of the differing views of Canadians on this subject.

It is notable that the majority went to some lengths to narrow the issue as much as possible and not address a greater societal debate. The Court held that the issue could be decided on a straight-forward statutory interpretation basis. The majority found that its sole role was to determine if the HCCA applied in this situation. It found that it did because life support was found to be “treatment” under the Act as it is for a “health related purpose”, part of the definition of treatment under the HCCA. The Court rejected the doctors’ submission that to fall within the HCCA, the treatment must be of a medical benefit, holding that to do so find would substitute physician-made criteria for the decision-making criteria set out in the HCCA. As life support is treatment, the procedure to be followed in challenging the substitute decision-maker’s decision to continue life support is that set out under the HCCA.

The minority decision takes a more, might I say, political view. It concluded that the HCCA codifies the common law right to refuse treatment but does not give patients, or their substitute decision-makers, the right to “insist on the continuation of a treatment that is futile, harmful, or contrary to professional medical standards of care”. These Justices determined that, at first instance, a physician should be permitted to determine whether life support has any chance of being medically effective and whether withdrawal of the treatment is in the best interests of the patient. That decision must be made within the professional standard of care at common law and is subject to review by the courts. This determination necessarily includes consideration of the patient’s wishes, values and beliefs, in addition to the broad mental and physical implications for the patient’s condition and well-being, all within the framework of governing legal principles.

The minority held that to do otherwise (ie. submit the issue of withdrawal/continuation of life support to the decision-making process under the HCCA) gives too much decision making power to the substitute decision-maker and would have a detrimental impact on the standard of care and legal, ethical and professional duties in the practice of medicine. The minority held that there must be a balance between patient autonomy and the physician’s role, expertise, and advice. It also found that “there are a myriad of important interests, such as the integrity of our health care system, at stake”. Of course, the “integrity of our health system” could include many socio-economic considerations.

The approach of the majority in confining the case to the narrowest of legal issues illustrates to me that the matter of end of life decisions is one that the courts would prefer to leave to the legislature (as would be expected), where the greater societal debate can be played out. The position of the minority reflects one view within that debate.

June 11, 2013

Ontario to Double Number of Nursing Home Inspectors

This is a too-long neglected hole in the long-term care system that is at least now getting some attention – better late than never?

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