Support
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withholding, or withdrawing,
treatment that doctors consider to
be of no medical value, the appellants urged.
However, the Court of Appeal
affirmed the decision of the applications judge below that if the doctors want to override Salasel’s
wishes by substituting palliative
care for life support they must first
apply for approval from the board.
Basing their jointly written
judgment on their interpretation
of the HCCA, Justices Moldaver
and Simmons concluded “the pro-
posal of the appellants to withdraw
the respondent from life support
and place him on end-of-life pallia-
tive care constitutes ‘treatment’
under the Act, for which the con-
sent of Ms. Salasel is required. If
her consent is not forthcoming, the
appellants’ proposal must be
referred to the Board.”
Hodder suggested the decision
“confirms what many people
thought to be the case.”
Added Underwood, “I don’t
think it’s possible to know whether
courts will, in the future, apply the
decision more broadly. But my
own view is that to do so would
not be consistent with the princi-
ple that informed consent is
merely a right to refuse treatment
and not to compel it.”
Scher noted that Ontario is the
only province with a consent and
capacity board. He said “the deci-
sion suggests [to us] that other
provinces ought to be looking at
implementing a similar regime of
a board or tribunal.”
Guillermo Schible of Toronto’s
Hodder Barristers, who repre-
sented Rasouli along with Hod-
der, noted the decision turns on a
provincial statute—not on the
common law. “We think that it’s a
decision that is limited to Ontario
in terms of relevance and applic-
ability,” Schible said. “The impli-
cation I think is that we will now
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be conducting
business as
usual.”
The key issue
in Rasouli was
whether the
withdrawal of
life support con-
stitutes “treat-
ment” or a
The doctors argued that if they
must always obtain patient con-
sent to withhold or withdraw
treatment, doctors will be obliged
to continue to provide whatever
treatment is demanded by
patients.
They argued that Rasouli’s
coma is irreversible and therefore
the provision of life support is
futile and medically worthless and
does not amount to “treatment.”
Justices Moldaver and Sim-
mons commented that “there is
much to be said for the appellants’
position.”
“We have difficulty accepting
that the Legislature intended to
include within the definition of
‘treatment’ measures that
attending physicians consider to
be of no medical value and there-
fore worthless,” they explained.
“More to the point, if the Legisla-
ture intended that consent was
required to the withholding or
withdrawal of life support meas-
ures that are considered to be
medically ineffective or inappro-
priate, we would have expected
clearer language to that effect.”
However, they said they
didn’t have to resolve “the meta-
physical debate” over whether
life-support was of no medical
value, in the circumstances,
because the patient will never
regain consciousness, or of high
medical value because it keeps
the patient alive.
Rather, the Act itself includes
“palliative care” in the definition
of “treatment.” And although palliative care is not defined, “
manifestly, it encompasses end-of-life
care provided to a patient to keep
the patient comfortable pending
his or her imminent death, upon
removal of a life-sustaining mechanical ventilator,” Justices Moldaver and Simmons held.
And because the removal of a
ventilator and the administration
of palliative care are “integrally
linked” they are a “treatment
package” under the Act requiring
consent, they concluded.
“We do not believe that by
interpreting palliative care to
include the withdrawal of life support measures, the floodgates will
open and intensive care units will
be deluged with patients who have
no chance of improvement but
who require life-sustaining measures to survive,” Justices Moldaver
and Simmons wrote. “If that
proves to be the case, then the
Legislature can, and no doubt
will, review the situation.” n
Schible
