The withdrawal of treatment is still treatment

Abstract

In the paper by Hawryluck et al. examining Cuthbertson v. Rasouli, the suggestion is made that the Supreme Court of Canada (SCC) changed the rules of engagement around end-of-life decisions when doctors and patients disagree. In fact, the SCC did not disturb prior decisions on the role of experts and the jurisdiction of the courts and restated what has always been the case, i.e., the withdrawal of treatment is treatment and, as such, requires consent. The news for physicians is good. The court neither overreached nor tied the hands of physicians when it cited ‘‘health-related purpose’’. Important medical ethical principles remain in place and will continue to guide complex treatment choices as doctors and patients struggle to do the right thing at the end of life. The details of Hawryluck et al. warrant further discussion. A deeper analysis is required concerning the standard of care and the concept of medical benefit and what the SCC intends by citing ‘‘health-related purpose’’. Future legal actions with the same question as that contained within Cuthbertson v. Rasouli will, and should always, be decided in the same manner as Cuthbertson v. Rasouli. Hawryluck et al. also misunderstand the role of the Ontario Consent and Capacity Board (CCB). An examination and understanding of the medical ethical principles at stake will provide the framework for a way forward. Standard of care describes the common medical practice of prudent physicians at a particular time and in a particular circumstance. It is a majority opinion that firms up before the courts but loosens up at the bedside. The standard of care and the obligation of the physician have always fallen strongly in favour of preserving life. Can the standard of care alone be a reason to discontinue treatment? If the SCC had considered the standard of care, it is false to suggest that it would have carried the day and found in favour of the doctors. The court has never conceded that only doctors decide the extent of medical expertise. The court has the power to adjudicate on issues that it considers within its authority to do so and has made this point before. In 2001, in Walker Estate v. York Finch General Hospital et al., the SCC found that a Red Cross pamphlet given to potential blood donors to discourage donation in groups at high risk of infection with HIV was inadequate despite evidence to the contrary by two medical experts. This case showed that the court would not allow doctors to decide on questions that do not require special skills or expertise. If an issue is outside of the knowledge of the courts, it will rely on experts, but it is hubris to suggest that the question of a life worth living is a matter of expert medical opinion. Only the individual knows the value of his or her own life. In the use of the term ‘‘health-related purpose’’, the SCC points out that the Ontario legislature sought to make clear the need for consent for any treatment. Health-related purpose unambiguously affirms that the withdrawal of treatment is treatment and that all treatment requires consent. If the capacity to consent is at issue, the proper place for disputes regarding consent reside within the CCB. The CCB was originally created to review involuntary committal under the Mental Health Act. The CCB panel traditionally consists of lawyers, laypersons, and a psychiatrist. In involuntary committal, a psychiatrist on