Why Withdrawing Life-Sustaining Treatment Should Not Require 'Rasouli Consent'

Abstract

Technology allows us to keep patients alive despite very poor prognoses and quality of life. We must therefore confront questions of when medical intervention should cease, and who should be allowed to make that decision.

Until recently it was unclear whether doctors or patients have the ultimate say in whether to withhold or withdraw life-sustaining treatment. In Rasouli v Sunnybrook Health Sciences Centre, the Ontario Court of Appeal held that doctors may only withdraw certain life-sustaining treatment with the con- sent of patients or their substitute decision makers. It reasoned that withdrawing certain treatment is "treatment" for which consent is required under Ontario’s Health Care Consent Act. This effectively gives the patient an entitlement to continued life support.

I argue that the law of informed consent should not dictate who may decide whether treatment is withheld. When consent is applied to create de facto entitlements to medical treatment, as "Rasouli Consent" does, interests other than those of the patient become relevant, such as physicians’ interest in not having to provide non-beneficial treatment and the public interest in not having to fund treatment of little or no medical value. Yet the law of informed consent is exclusively patient-centered and does not allow these factors to be considered; neither the Consent and Capacity Board nor the courts may give weight to competing interests.

This is not to say that physicians should have the right unilaterally to withhold life-sustaining treatment. However, any entitlement to treatment should flow from laws other than the law of informed consent, such as the Charter, or ideally a new law that explicitly addresses the issue.

Keywords: informed consent, life support, health law, Health Care Consent Act, end of life