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Canadian doctors ask court to clarify who has authority in end of life situations

BMJ 2012; 344 doi: http://dx.doi.org/10.1136/bmj.e3348 (Published 10 May 2012) Cite this as: BMJ 2012;344:e3348
  1. Owen Dyer
  1. 1Montreal

Canada’s Supreme Court will next week consider an appeal from two Canadian doctors who seek, against a family’s objections, to withdraw life sustaining treatment from a patient they originally diagnosed as being in a persistent vegetative state, but whom they now describe as minimally conscious.

Hassan Rasouli, 60, a retired Iranian born engineer, contracted bacterial meningitis in late 2010 after surgery to remove a brain tumour, and has since been on mechanical ventilation at Toronto’s Sunnybrook Health Sciences Centre. All parties agree, however, that he is no longer in a vegetative state and has repeatedly given the thumbs up at his wife’s request.

A year ago, Rasouli’s doctors concluded that life support was bringing no benefit. “It is as certain as anything ever is in medicine that he will never recover any degree of consciousness,” they wrote last year in a court affidavit. “Doctors are obliged to offer treatment that can benefit the patient, and they are obliged not to offer treatment that is futile.”

But the family argued that they could see signs of awareness, even of improvement, and refused consent to placing him on palliative care only. The doctors, Brian Cuthbertson and Gordon Rubenfeld, then took their case through the Ontario courts, but lost twice. They appealed to Canada’s Supreme Court.

Given the change in the patient’s diagnosis, the family has submitted a motion to dismiss the case as moot, to be heard on 17 May. But the doctors argue that the full case should still be heard in December, citing in court documents “a great need for guidance from this Court . . . when the law is unsettled.”

“The Court of Appeal misapplied the law of informed consent in order to confer upon patients a right to insist upon the continuation of a particular treatment when the medical standard of care requires it to be withdrawn,” they argue.

Canadian law is notoriously unclear on who has authority in end of life situations. In most provinces, families must go to court to challenge doctors who want to withdraw life sustaining treatment. Ontario is the exception, having a Consent and Capacity Board that normally mediates such disputes. But the Sunnybrook doctors argue in a court affidavit that they should not have to submit such cases to the board, which would normally insist on next of kin’s consent.

Rasouli’s wife, Parichehr Salasel, herself a retired doctor, contends that as a devout Muslim whose faith frowns on suicide, her husband would, if conscious, feel bound to fight for his life. The argument appeared to carry weight with Ontario Justice David Doherty, who said: “It may be in the patient’s best interests to carry on because the patient believes it is what he has to do to get his eternal reward.”

In a study unconnected to the legal proceedings, Rasouli is being tested by British neuroscientist Adrian Owen, who took a research chair in Ontario last year. He recently co-authored research in the Lancet reporting that three of 16 patients diagnosed with persistent vegetative state showed responses to verbal prompts that could be detected with sophisticated electroencephalogram techniques.1

Notes

Cite this as: BMJ 2012;344:e3348

Footnotes

  • See also Monti MM, Laureys S, Owen A. The vegetative state. BMJ 2010;341:c3765, doi:10.1136/bmj.c3765.

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