May 19, 2011 | LifeSiteNews.com | TORONTO

Who makes end-of-life decisions, family, or doctors? Ontario court to decide

The question of whether end-of-life decisions, such as whether or not to withdraw life-support, should be made at the discretion of a doctor or family members is at stake in the Rasouli case, taken before Ontario’s Court of Appeal yesterday.  The court’s decision could dramatically change how these important decisions are made in the province in cases such as the much-publicized Baby Joseph case.

Doctors at the Sunnybrook Health Sciences Centre, where 59-year-old patient Hassan Rasouli has been since surgery in October, say the Iranian immigrant is in a persistent vegetative state, with no hope of recovery.  They are appealing a Superior Court decision from April that ruled the doctors needed the family’s permission, or permission from Ontario’s Consent and Capacity board, in order to remove Rasouli from life-support.

The Rasouli family disagrees with the doctors’ diagnosis.  They say that their father, who suffered bacterial meningitis after surgery to remove a brain tumor, is able to communicate with them and shows progress in his recovery, although he presently requires the assistance of a ventilator and feeding tube.

“He talks to us with his eyes,” said Rasouli’s 27-year-old daughter, Mojgan. “We want my father alive.”

Rasouli’s son, 23-year-old Mehran, said, “When I speak to him, he opens his eyes. He knows me.”

Rasouli’s wife, Parichehr Salasel, was a doctor in Iran before the family immigrated to Canada last year. She has refused to give permission for her husband’s ventilator to be removed, saying she believes he is improving and that removing life-support would violate his religious beliefs as a Shia Muslim.

The doctors’ factum in court, however, states, “Doctors are obliged to offer treatment that can benefit the patient, and they are obliged not to offer treatment that is futile.”

Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld of Sunnybrook say that, as the medical experts, they should be the ones deciding when patients will no longer benefit from treatment.

“The underlying issue is whether or not doctors have the right to withdraw treatment that they view to be of no benefit to the patient, or in other words, at end of life, futile,” said Mark Handelman, lawyer for the Euthanasia Prevention Coalition, which has intervener status in the case.

“We’re still without an authoritative answer to a very pressing question,” Harry Underwood, the lawyer representing the doctors, told the court. “How are patients’ best interests to be protected?” Underwood argued that according to common law, doctors are not required to obtain consent before withdrawing medical treatment that they believe to be futile.

The Rasouli family’s lawyer, Gardner Hodder, told the court the diagnosis of permanent vegetative state, such as Rasouli was given, is often incorrect.  Withdrawing life-support, he added, is a medical treatment and, therefore, by definition of Ontario law would require consent.

Lawyer Hugh Sher, also representing the Euthanasia Prevention Coalition, agreed with Hodder.  The Superior Court decision of April was correct, he said: doctors do not have the unilateral right to withdraw life-support treatment.  In cases such as Rasouli’s the decision should be taken before Ontario’s Consent and Capacity board, he said.

The Consent and Capacity Board is a group of lawyers, psychiatrists, and citizens in Ontario who are appointed by the province to resolve disputes such as in the Rasouli case between doctors and the family.  Ontario is the only province with such a system.  Rather than a lengthy court battle, which often ends with the death of the patient in question before a court ruling, the Consent and Capacity Board usually decides cases within a week.

“Society needs to be very careful with decisions to withdraw life support and granting doctors the unilateral right does not protect people who are misdiagnosed or not actually dying and it doesn’t respect the beliefs and values of people who live with a faith tradition that includes certain ethical traditions,” cautioned Alex Schadenberg of the Euthanasia Prevention Coalition.

“The Rasouli case will determine whether doctors are required to obtain the consent of the patient, the patient’s guardian, or the Consent and Capacity board before withdrawing life support. This decision will apply to all life-sustaining interventions, including the withdrawal of hydration and nutrition.”

“The fact is that if the position of the doctors is upheld, doctors will not be required to obtain consent before they withdraw life-sustaining treatment that the doctor deems to be futile,” he said.

“Life is a gift from God,” Rasouli’s wife said following the court hearing. “He would want to live.”

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