Rasouli v. Sunnybrook - Case Analysis

In Rasouli v. Sunnybrook Health Sciences Center, the Court of Appeal of Ontario held that intractable surrogate-physician disputes over the appropriateness of continuing life-sustaining treatment must go to the Consent and Capacity Board.  That is generally a fine dispute resolution mechanism.  Physicians, including physicians from Sunnybrook, are often successful there. 

But in cases in which the surrogate is acting on the basis of the patient’s known wish (e.g, Golubchuk, S.S., and arguably Rasouli), the CCB must support the surrogate.  As the Court of Appeal observed, “its hands are tied.”  Indeed, as I argued in a recent article in the St. Louis University Journal of Health Law and Policy, a surrogate selection approach to futility disputes has some material limitations for providers.

Notably, the Court of Appeal’s decision is significantly narrowed in two ways.  Indeed, one might even say that the Court of Appeals has actually announced a ruling affirmatively permitting providers (at least as far as the HCCA is concerned) to unilaterally stop non-beneficial treatment with just two exceptions.

STATUTORY INTERPRETATION

The trial court concluded that since both mechanical ventilation and artificial nutrition and hydration are “treatment,” and since withdrawing treatment is also defined as “treatment,” then provider’s proposal here constituted “treatment” under the HCCA.  Therefore, consent was required.  The appellate court agreed with the providers that while those interventions were typically treatment, they were not treatment for Rasouli, since they provided him no therapeutic value.  Nevertheless, the appellate court concluded that the proposal constituted “treatment” under the HCCA because the withdrawal (not treatment in and of itself) was inextricably intertwined with the provision of palliative care (which was treatment requiring consent). 

This is actually a fair interpretation of the statute.  But note that it is limited in several material respects.  First, even when consent is required to withdraw treatment, if the surrogate will not consent, then the provider can still go to the CCB.  Second, consent is required only to withdraw, not to withhold treatment.  Third, consent is required only to withdraw non-beneficial treatment that results in immediate death.

WITHHOLDING V. WITHDRAWING

First, the Rasouli holding applies only to disputes over continuing life-sustaining treatment must go to the CCB.  If a certain intervention was never offered to a patient/surrogate in the first place, then it does not fall within the scope of the 1996 Ontario Health Care Consent Act (HCCA).  No consent (surrogate or CCB) is required because no treatment is given and none is withdrawn.

The court founds this distinction not on logic or policy but in the language of the HCCA.  The court’s holding, like the holding of the trial court it affirms, is completely anchored in the statute.  The court does not think that its decision will cause perverse results.  But even if it did, one would expect the court to paraphrase the Fourth Circuit in the 1994 Baby K case:  “It is beyond the limits of our judicial function to address the moral or ethical propriety of providing emergency stabilizing medical treatment to anencephalic infants. We are bound to interpret federal statutes in accordance with their plain language and any expressed congressional intent.”

IMMEDIATE V. NON-IMMEDIATE DEATH

In addition to making a distinction between withholding and withdrawing, the court draws a distinction between withdrawing treatment that causes immediate death withdrawing treatment that does not cause immediate death.  To limit the scope of the HCCA from producing absurd results, the court holds that the HCCA requires consent only for withdrawing treatment that causes immediate death. 

Remember, the provision of palliative care is what makes withdrawing non-beneficial interventions “treatment” requiring consent under the HCCA.  The withdrawal of ventilator is often automatically linked to palliative care (which is definitely treatment).  In contrast, withdrawing chemotherapy when it has nothing more to offer does not require consent under the HCCA.  There is a “gap” between the withdrawal and the palliative phase. 

One interesting implication of this analysis is that had cases like Golubchuk and Betancourt been in Ontario, consent would not be required under the HCCA.  Since the treatment at issue was dialysis, it seems that there would be a sufficient “gap” between withdrawal and palliative care and death.

PICKING AND CHOOSING

The court argues that its holding will not lead to bad results.  It explains that by forcing providers to obtain consent before withdrawing life-sustaining treatment (that will result in immediate death), it does not allow surrogates to “pick and choose” treatment.  Surrogates can only select from the menu offered by providers. 

But the court misses the point that interventions offered at T1 may be inappropriate at T2.  The “menu” may be limited somewhat to interventions that were “ever” offered.  But on that more limited menu it seems that surrogates can “pick and choose.”  Suppose an intervention was offered on Monday because it was beneficial or even just potentially beneficial.  By Friday, it becomes clear that this intervention holds no promise for the patient.  Still, on the court’s rule the surrogate’s consent is required to withdraw this treatment. 

The danger of incentivizing providers to never offer treatments for fear of being “stuck” with those treatments has been well documented in the literature and in court opinions.  The Ontario Court of Appeal seems to recognize the danger but suggests the duty to comply with the standard of care mitigates the risk.  It is unclear that this is sufficient.  Such malpractice cases are rarely brought.  The damages are low and causation is difficult to establish.