In 2010, Hassan Rasouli went into a coma following surgery to remove a brain tumour. He's been on a ventilator ever since. His doctors wanted to pull the plug, but the family refused permission. Last October, the Supreme Court of Canada sided with the family. A commentary
just published in the Canadian Medical Association Journal says the Court's decision makes it harder for doctors to take care of patients at the brink.
Mr. Rasouli has been dependent on a ventilator and tube feedings since being in coma. His doctors wanted to discontinue life support after they deemed him to be in a persistent vegetative state without hope of improvement. They felt that the ventilator was only intended to support him until he recovered. Given no hope of recovery, they believed that the ventilator was no longer medically indicated and could - according to the law - be withdrawn without the approval of Mr. Rasouli's family. The family believes that Mr. Rasouli has shown improvements, is aware of his surroundings and that he can communicate.
Arguing that the doctors had no right to pull the plug without the family's consent, Mr. Rasouli took the doctors to court and won. The doctors lost appeals both to the Ontario Court of Appeal and the Supreme Court.
The Supreme Court decision
does not mean that doctors must keep Mr. Rasouli on a ventilator for the rest of his life. For one thing, it's entirely possible that one day, the family will conclude that keeping Mr. Rasouli on a ventilator is futile, and permit doctors to turn it off.
As well, the Supreme Court decision does not preclude Rasouli's doctors from making an application to Ontario's Consent and Capacity Board to bypass the wishes of Mr. Rasouli's substitute decision maker - his wife. The Board
is an independent provincial tribunal with the authority to hold hearings to decide if the people making decisions on Mr. Rasouli's behalf are complying with the rules for substitute decision-making. The Board can also decide if the substitute decision maker is capable of making appropriate decisions.
Still, according to the commentary in the current issue of CMAJ, the doctors remain concerned by the Supreme Court decision. They argue that the decision means that in Ontario, the Consent and Capacity Board becomes the first line court for deciding complex life and death intensive care issues, without being doctors, let alone experts in intensive care medicine. And, say the doctors, the Board will have the right to override the judgement of MDs regarding (in this case) the appropriateness of keeping a patient in a vegetative state on a ventilator - in effect creating a new standard of care.
Whether or not to pull the plug in the Rasouli case is just one type of challenge the Board may face. Even more complex is the case of Robyn Benson
who suffered a brain haemorrhage last December and was declared brain dead a day later. Benson was 22 weeks pregnant. She was kept on life support at Victoria General Hospital in an effort to allow the pregnancy to reach 34 weeks, giving the unborn child a better chance at survival. This past weekend, the baby was delivered and Benson was allowed to die a day later.
Supporters of the Supreme Court decision say the Consent and Capacity Board is a far better place than the courts to handle these decisions because they act faster than the courts and the have the mandate to resolve the issues. For the most part, when it comes to pulling the plug, the Board has sided with doctors. But increasingly, next of kin and other substitute decision makers appeal the Board's decision to the courts. The authors of the commentary say substitute decision makers have appealed in eleven of thirty cases. The courts upheld the Board decision in ten cases and overturned it just once. The appeals take anywhere from three to six months for a final decision. During that time, the patient must be kept alive at a cost in the ICU of three thousand dollars per day.
The Supreme Court turned the decision in the Rasouli case back to Ontario authorities. However, there are implications for people who live in other provinces. The authors of the commentary argue that should the Consent and Capacity Board override the doctors' recommendation and keep patients like Mr. Rasouli on a ventilator, it will essentially have the power to change the standard of medical care not just in Ontario but elsewhere. The other implication is what the authors of the commentary refer to as "the elephant in the room." At three thousand dollars a day for intensive care, a lot of money is being spent on elaborate medical care that doctors believe has no benefit. Even a delay of three to six months for Board decisions and appeals adds enormously to the financial burden of care paid for by the provinces. All of which is to say the authors believe such Boards should have no role in questioning the judgement of doctors.
In my opinion, it's far too late to remove the notion that patients and their substitute decision makers have the right to weigh in on life and death decisions. As to the issue of cost, it's entirely possible that with cheaper technology and a move from physicians to nurse practitioners and physician assistants, the cost of intensive care will be less - not more - expensive in the years to come.