On Monday, the Supreme Court of Canada heard the difficult case of Hassan Rasouli. 

Mr. Rasouli is a patient at Sunnybrook. He underwent brain surgery in 2010 in order to remove a tumour. Complications following the surgery led to severe brain damage. Mr. Rasouli has been on life support ever since. 

His doctors want to remove the machines keeping him alive, but his wife refuses to give up on him.

The struggle over Mr. Rasouli’s fate has made news across the country. His doctors claim that he is in a permanent vegetative state with no hope of recovery. His family claims that he does have some level of consciousness. In support of their claim, they have produced video of him wrapping his fingers around a ball when thrown to him, and claim that he responds to their voices. 

A functional MRI scan has shown that his brain responds when Mr. Rasouli is asked to imagine performing specific tasks. The technology measures blood flow in the brain in real time and has been used as a way to communicate with other unresponsive patients.

The legal question at the heart of the case is whether or not the withdrawal of life support is included in the definition of "treatment" under Ontario’s Health Care Consent Act (the "HCCA"). Both the Superior Court and the Court of Appeal have ruled that it does. The Rasouli family and the staff at Sunnybrook currently await the decision of the Supreme Court.

The HCCA governs the rules for obtaining consent for treatment in Ontario. It provides that where a person is incapable of giving consent on his or her own, the person’s substitute decision maker (in Mr. Rasouli’s case, his wife, Parichehr Salasel) must consent on his or her behalf. 

The definition of "treatment" under the HCCA is highly technical and critical to the scheme of the legislation. If drawn too narrowly, it could give doctors the power to make unilateral decisions about a patient’s care. If drawn too broadly, it could give patients the power to demand procedures or medications that are inappropriate or ineffective for their conditions.

Where the incapable person has expressed a wish about a course of treatment while capable, a substitute decision maker is obliged to follow it. Where no such wish has been expressed (as in Mr. Rasouli’s case), substitute decision makers are required to make decisions in the best interests of the incapable person. When doctors and substitute decision makers disagree about consent to "treatment" under the HCCA, the statute provides that doctors may challenge the choice of a substitute decision maker at the Consent and Capacity Board, but only if the definition of treatment applies. 

Decisions about withdrawing life support are never simple.  Tragically Mr. Rasouli’s situation is not unique. Ian Hull recently blogged about the story of Maria Watson’s struggle to keep her husband alive on life support. This case should serve as a reminder to have a Power of Attorney for Personal Care in place to ensure that your loved ones follow your wishes respecting end-of-life care in the unfortunate event that they need to be followed.

Suzana Popovic-Montag