Rebecca Millette

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Ontario Appeals Court rules doctors don’t have right to remove life support

Rebecca Millette

TORONTO, Ontario, June 29, 2011 (LifeSiteNews.com) – In a decision that will have far-reaching effects for the province and all of Canada, Ontario’s Court of Appeal judges ruled today that doctors do not have the unilateral right to remove life-support from a patient.

In the Rasouli case, which was similar to the much-publicized Baby Joseph case, doctors at the Sunnybrook Health Sciences Centre were seeking permission to remove life-support from 59-year-old Hassan Rasouli who, they said, was in a vegetative state, with no hope of recovery. 

Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld claimed they should have the power to remove Rasouli from ventilator support, despite his family’s objections.  They were appealing a Superior Court decision from April that ruled the doctors needed the family’s permission, or permission from Ontario’s Consent and Capacity Board, in order to remove Rasouli from life-support.

Rasouli’s family, however, disagreed with the doctors’ diagnosis and would not give permission for the removal of his ventilator, arguing the action would violate his religious beliefs as a Shia Muslim.  They said Rasouli, who suffered bacterial meningitis after surgery to remove a brain tumor, was able to communicate with them and showed progress in his recovery, although he required the assistance of a ventilator and feeding tube.

The three justices writing for the Appeal court unanimously upheld the Superior Court decision of Justice Himmel saying that withdrawing life-support constituted medical “treatment” and required the consent of the patient’s family.

(Read the decision here)

When the family refuses consent, doctors must appeal to the Ontario Consent and Capacity Board for a decision, said the judges.

The Consent and Capacity Board is a group of lawyers, psychiatrists, and citizens in Ontario who are appointed by the province to resolve disputes such as in the Rasouli case between doctors and the family.  Ontario is the only province with such a system.  Rather than a lengthy court battle, which often ends with the death of the patient in question before a court ruling, the Consent and Capacity Board usually decides cases within a week.

“It is a very important point because a lot of these decisions do result in the direct death of the person,”Alex Schadenberg of the Euthanasia Prevention Coalition, an intervener in the case, told LifeSiteNews.com.  The court’s decision extends beyond withdrawing ventilator support, he added, to other issues such as fluids, antibiotics, and other types of medical treatment.

“That does not mean that doctors can’t go ahead to the Consent and Capacity Board,” said Schadenberg, “but at least then [the family] will have the opportunity to try and hire effective counsel to try and defend their position.”

Such was what happened with Baby Joseph.  Unlike the Rasouli case, doctors in the Baby Joseph dispute were not assuming they had the right to pull his ventilator, but were seeking consent from the Board.  Although the Board sided with the doctors, Baby Joseph’s parents were given time to hire legal aid and appeal the decision. 

The Rasouli ruling means that doctors will not have the sole right to decide end-of-life decisions, but will necessarily have to consult the family and the Board.

“It’s going to affect Canadian law,” said Schadenberg. “Families challenging doctors in other provinces will use this as the precedent case.”

Schadenberg said he expects the doctors will appeal the Rasouli ruling at the Supreme Court of Canada; however, he hopes the Court will reject the hearing based on the unanimous decision of the Appeal Court judges.

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