The doctors of a Toronto man who has been unconscious and on life support since 2010 want to cease active treatment and provide him with palliative care. They believe that he has no realistic chance of recovery. His family disagrees. Mr. Rasouli’s wife is his substitute decision-maker and she refused to give her consent to the doctors’ plan, as she was entitled to do under the Ontario Health Care Consent Act. She was successful in obtaining an injunction to stop the doctors at the trial and appeal level. The doctors appealed to the Supreme Court of Canada, asking for a declaration that consent is not required to withdraw active treatment where, in the opinion of the treating physicians, it is futile. The Supreme Court decided in a 5 to 2 decision that the doctors’ appeal should be dismissed. The majority wrote that the Health Care Consent Act creates the Consent and Capacity Board which:
- sets out rules for requiring consent before treatment can begin;
- identifies who can consent for an incapacitated patient; and
- states the criteria on which consent can be granted or refused.
Board decisions are subject to judicial review to be sure that it acts within its mandate and in accordance with the Constitution.
The Court stated that in this case, if the physicians do not agree with Mrs. Rasouli’s decision that maintaining life support for her husband is not in his best interests, then their recourse is to apply to the Consent and Capacity Board for a determination of the question. If the Board determines that her decision is not in the patient’s best interests, then it can substitute its decision and clear the way for the removal of Mr. Rasouli’s life support.
Cuthbertson v. Rasouli 2013 SCC 53
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