In North America, although Canada and the United States are separate countries, and each State and Province have their own areas of jurisdictional responsibility, both countries share the legal formulation that Supreme Court rulings set precedential interpretations of the law. Jurists, lawyers and legislators on both sides of the border often draw freely from each other's jurisprudence. Thus, the recent Rasouli decision by the Canadian Supreme Court should make physicians and policy makers on both sides of the border look carefully at the ruling's implications.1 It would then be prudent for those given the mandate to protect at the same time the integrity of responsible, ethical and professionally sound health care to avoid the potentially negative impact this current ruling can have on patients at the end of life and those whose professional duty is to assure the most humane care possible.
As gracefully and forcefully explained and commented on by one of Canada's foremost ethicists, Arthur Schafer, the potential implications for the future of health care are profound. To quote, "The Supreme Court of Canada's 5-2 decision in Rasouli is a clear victory for the family. Sadly, it is a loss for common sense and common humanity. It is also a blow against physician integrity and potentially damaging to the Canadian health-care system."2 As Schafer explains in his article, "The salient facts in this case are these: Hassan Rasouli has been unconscious and on life support since October, 2010. He is in a near-vegetative state with no realistic prospect for recovery. Although his body will inevitably deteriorate further, he can be kept alive, almost indefinitely, in a hospital intensive-care unit: He needs a tube down his throat so that he can breathe, a catheter in his bladder, large central tubes for fluids and medications, frequent surgical removal of infected skin tissue to prevent gangrenous infections, suctioning of his lungs to remove fluids that would choke him".
As Schaffer notes, "Mr. Rasouli's physicians propose that he should be given palliative care instead of life support. Continued ICU treatment is not merely "futile"; it is actively harmful. It can keep him alive, of course, but life is not an absolute value. Physician ethics does not permit procedures which on balance are harmful to the patient. Mr. Rasouli's wife, Parichehr Salasel, insists that her husband, as a devout Muslim, would want to be kept alive, even in these circumstances. She is his substitute decision maker (SDM or in American parlance Proxy for Health Care Decisions) and she refuses to consent to his discharge from the ICU and transfer to a palliative care program.
The judicial nuances and arguments in this case are not as important as the ultimate decision which was that according to the Supreme Court life support can be discontinued only with the consent of the patient or the SDM (proxy). Of equal interest of "rights" of patient autonomy is the hard fact that according to Schaffer, "in Canada, care in an ICU costs almost $1-million a year, per patient. Understandably, the number of ICU beds is limited and admission is strictly controlled." The numbers in the United States would be higher as almost all health care costs in the United States are substantially higher than their comparable cost in Canada.
The salient argument of Schaffer and one which appears already to resonate through the medical community as well as the administrators of hospitals is that, "The purpose of critical care is to save the life of the patient until the patient can recover to be discharged. The ICU is not intended for patients who can never recover. At present, critical-care doctors err on the side of admission. If they later discover that continued life support is futile, then the patient is discharged and receives palliative care instead."
As Schafer points out and something that is not addressed adequately by this current ruling but which is one of the foundational ethical principles on which modern medical practice is built is distributive justice. As he notes, "One person's provision is another person's deprivation." It is not hard to imagine a situation where a clinical situation was like Rasouli when the decision was made to admit him to the ICU. What if he had to been deprived of that admission and chance of recovery because another patient like Rasouli is now and whose family demanded continued treatment despite what many would deem to be futile or at least clinically non-beneficial treatment. One can imagine the implications of a patient dying because of ICU deprivation because of someone whose use of the ICU is outside it designated mandate.
Schafer's final conclusion is, "Cases such as those involving Mr. Rasouli…are comparatively rare. With sympathetic discussion and dialogue, a consensus can usually be reached. But in those cases where agreement is impossible to achieve, physicians are entitled to exercise their professional judgment. If the family disagrees, they can appeal to the courts." That is what happened in this case and the result is now part of the new equation of health care decision making.
The potential consequences remind me of a conversation I had some years ago with an American obstetrician and gynaecologist who said he had given up obstetrics because of the number of legal negligence cases he was handling at any given time. As he indicated, "Not having a perfect baby is always followed by a negligence or malpractice charge and even if at the end I am vindicated, the stress on my life in addition to my enormous malpractice insurance premiums are just much for me. I will just do gynaecology" Even for those who believe that births should be "natural" and promote the greater use of midwives, when things go wrong, it is physicians who provide the salvage. If they no longer will take on that role….it is the public, the potential mother and child who will be the victims.
For those of us who do eldercare and long-term care, what we can do is try to promote advance care planning in a way that assures that people address their future wishes and values and make sure SDMs and proxies will carry out their wishes and they really do understand the implications of their decisions. If one cannot be sure a proxy will indeed carry out the instructions it might be necessary to appoint an impartial person rather than a family member so that the emotional impact of what are often heart-wrenching decisions can be made according to ones' expressed wishes and values.