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Rasouli Decision in Canada: What does it mean for Health Care Professionals?

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."

Comments

Thank you Michael.

Extremely well written. Thank you.

That is simply shocking.I can't believe the Supreme Court of Canada has deteriorated to such a degree.Is it becoming similar to the USA Supreme Court which seems to be ruled by conservative politicians in recent years? What has being a " devout" Muslim have to do with the options of modern health care? Has there been any response from other interpreters of Muslim beliefs? Are we going to need a signed statement before ICU admission to prevent this situation from happening again.

Lawyers are always the ones who exhibit the most ignorance of biology.So why are we surprised the supreme lawyers don't seem to understand.So we need to legislate that noone should be in ICU more than 30-60 days.It is a question of fairness to all patients.The supremes cannot make legislation only follow it and because of our lack of legislation we are up the creek.

Excellent article, but one point which should be corrected is the impression that it's ICU OR Palliative Care, as if the two are mutually exclusive. Early involvement of Palliative Care specialists in the ICU when it is recognised that recovery is not going to happen can help families come to grips with reality, and accept the eventual shift in focus of care to quality of life rather than prolonging suffering. The public perception of Palliative Care as being a negative thing, synonymous with withdrawal of care is the opposite of the truth. This unfortunate and harmful misperception is unfortunately propagated by artcles which do not get input from Palliative Care professionals before being published.

The salient issue at hand here appears to be the capability / competency of the substitute decision maker. In the context of a family's grief / bereavement reaction, we commonly see the SDM embroiled in the (expected) emotional roller coaster of denial, anger, bargaining and sadness. Typically, the health care team members become targeted by the SDM's unconsciously projected guilt. Then, the SDM resolves to oppose the team's recommendations out of anger and mistrust. The team members become frustrated and angry in turn because of the disconnect between 'the head and the heart' of the rational / clinical vs the emotional reaction to the same scenario. When team members understand this dynamic, it helps to diffuse the 'us vs them' dynamic that develops and which, tragically, can poison the patient's care environment. I strongly agree that the most practical solution is to encourage everyone to discuss advance care plans with their physician(s) and with their next of kin.

It is very dissapointing that the Supreme Court magistrati are Conservative in their attitude,and perhaps more then that, are being appointed by Conservative politicians. Very good article, thank you!

I worry that because the physicians in the case chose not to follow the procedure outlined in Ontario for dealing with these disputes we may have created a situation where the law seems to have tied the physicians hands when that is not the issue that was being decided upon. The consent and capacity board should have been involved...possibly the outcome would be different. For those of us in provinces without such a board, this decision may make disputes even more difficult to resolve.

Advise and consent - it has always seemed to me that our duty as physicians is to advise, and that it is up to the patients, or their proxy in cases where they are incompetent to decide, to consent. We may on some personal level disagree with that decision, as when a relatively early stage ALS patient foregoes treatment and actively pursues their death, but who are we to decide for the patients? I certainly hope, when it is my turn to decide to consent or refuse medical therapy, my Doctor does not take it upon her/himself to reverse that decision for me. Elliott Vizel MD

Excellent article I also concur with Dr Hawley that the earlier involvement of palliative care in the discussions in icu can help patients and families in the process of coming to terms with what is happening

Since the enormous cost of artificial live support passed on the health system it is difficult to argue with the family. Physicians should have a say in the decisions to continue or not the treatments that are either harmful or futile. Political correctness of the Supreme Court lead to misunderstanding or not understanding of the biological processes of deterioration of the body without having a "command center". It is heartbreaking to see or even participate as a medical professional in this kind of situations. Deprivation of dying with dignity is the worse case scenario can occur to one. The debate on dying, advanced directives and planning should become a nation wide debate. We are mortal, it is a very well known fact, nothing to do with our religious or political affiliations. Death should stop to be a topic of taboo in our society.

Religion is again being abused. I am a muslim, and I can tell you that there is nothing in islam that says that devout muslims have to be kept alive by "artificial means". In fact most muslims use the word "inshallah" after most potential events.The word means "god willing" so if you say to a muslim I will see you tomorrow, his approriate response would be Inshallah. meaning we will meet if god wills it. Muslims must defer to the will of god. So the argument that a devout muslim must be kept alive by artificial means, managed clearly by humans is actually contrary to the Muslim practice of deferrence to gods will. If the patient is taken off the respirator and other life support, then he is truly left to the will of GOD. Secondly, one has to consider the family's true interest in keeping some one alive. They obviously have potential wasted interest. If the patient is kept alive then the family potentially collects disability pensions and probably tax deductions. We have all filled such forms. we could not refuse it, because the patient is disabled, and requires personal care. the forms do not ask as who provides the care. It is unfortunate that the system allows all that.

What worries me the most is that the decision, as I read it, seems to say that the patient (or his proxy) may demand of the health care system any procedure that he sees fit, irrespective of the opinion of his Dr. EKGs, lab-work, MRIs - now all at the whim of the patient. And we think the Emergency Rooms are full of unnecessary cases now? Just wait. We've seen nothing yet.

Hi to all who have posted comments- I cannot reply to each one- what I did was write a more robust and fuller article on this case and another which is more common- but the issues are the same. We have to remember that most people and most families are reasonable and we carry out these processes every day many times throughout the country and in the US. Each of these cases become well-known and it is important to understand the legal ramifications to make sure we do our best to avoid poor or illogical or harmful outcomes-it ban be done- as it has been over the years- remember that before the DNR order because legal as an advance directive we did slow codes which we all know was terrible for all. So although I believe the case could have come out otherwise- the law as written is the law that is interpreted and courts often differ in interpretation from one period of time to another- as I note in the fuller argument- so much of the new changes to how we communicate has to be done by us- not as a risk management enterprise but as a compassionate way of making sure as much as possible that people do not suffer at the end of life when we can offer something more humane. Thanks to all for writing and showing your interest and passion. Michael

See fuller article on www.healthplexus.net. Michael Gordon "Beyond Rasouli: What has the Supreme Court said about Late-Stage Dementia and Continued Life-maintaining Treatment?"

Funny how no one, including the author, mentions the elephant in the room: this debate would not exist if Rasouli was in a private hospital paid with private money. This story is another example showing that our one-payer health care system forces doctors to consider interests others than those of the patient. In other words, it is unethical.

I will disagree with the premise so I cannot comment on your position. I support our publicly funded system which seems to be the nature of health care delivery in most western countries. I have worked in quite a number of them in various jurisdictions--none is perfect but then again neither is private care. Private care might solve some problems but at a huge social expense--so that is as much as I will say on this subject in this forum. Michael Gordon