The Distinction between Withholding and Withdrawing Treatment in Rasouli: Providing a Solution to an Ethical Problem

Introduction Following surgery to remove a brain tumor, Mr. Hassan Rasouli developed meningitis leading to severe brain injury. He was declared to be in a persistent vegetative state, and then later a minimally conscious state, which means there was minimal cortical activity and little evidence of a remaining conscious mind. Given this, Mr. Rasouli's doctors decided the best course of action would be to remove him from life support, including artificial nutrition and a ventilator. However, Mr. Rasouli's wife, acting as his Substitute Decision Maker (SDM), did not consent to this course of action. This challenge was presented before the courts in the case of Cutherbertson v. Rasouli (Rasouli), and was eventually ruled upon by the Supreme Court of Canada in October 2013. (1) The Health Care Consent Act (1996) (HCCA) of Ontario states that all requires the consent of the patient or their SDM, or failing that, an application to and approval by the province's Consent and Capacity Board. (2) The doctors argued that the removal of life support was not in fact treatment, but the removal thereof, and consequently not subject to the HCCA, (3) Furthermore, the doctors argued that in cases where continued is futile, the HCCA has no jurisdiction, which would give the physicians authority to withdraw life support without patient or SDM consent. (4) The Supreme Court of Canada found that the withdrawal of did, in fact, fall under the broad category of treatment and was therefore subject to all of the limitations of physician authority and dispute resolution mechanisms outlined in the HCCA. (5) Though the Rasouli decision is primarily concerned with the withdrawal of under the HCCA, this article examines the issue of withholding potentially life-sustaining as it is discussed in the Rasouli decision. We argue that the Chief Justice's decision in Rasouli makes an apparent distinction between withholding and withdrawing such that potentially life-sustaining may be withheld unilaterally (i.e. without consent or approval by the Consent and Capacity Board) even though it would be contrary to the HCCA to withdraw such unilaterally. Furthermore, we argue it is ethically problematic to establish a legal distinction between withholding and withdrawing such that it is more difficult for clinicians to withdraw care than to withhold care. In the field of bioethics, the opposition to the withholding/withdrawing distinction is long-standing. To correct the ethical problems that arise from distinguishing between withholding and withdrawing life-sustaining treatment, and allowing the unilateral withholding of such by physicians, we argue that Colleges of Physicians and Surgeons should provide guidelines that prevent the withholding of life-sustaining without patient or SDM consent, with a few exceptions. Drawing on previous scholarship in this area and existing provincial College policies on care at the end of life, we outline some provisions that these guidelines on withholding and withdrawing should contain. The Distinction between Withdrawing and Withholding Treatment in Rasouli The Supreme Court of Canada ruling in Rasouli engages with several important concepts in the ethics of end of life care, such as the concept of medical futility, and the concept of substitute decision-making, as legislated in Ontario's HCCA. Rasouli also reinvigorates the distinction between withholding potentially life-sustaining treatment, and withdrawing such treatment--a distinction that many health care ethicists believe is arbitrary. We argue that Rasouli offers an interpretation of the HCCA in which a distinction can be made between withholding and withdrawing potentially life-sustaining treatment. Rasouli prevents health care practitioners from unilaterally withdrawing life-sustaining that serves a health-related purpose. …

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