Physicians seeking removal of life support system of person in vegetative state

Supreme Court of Canada: Dealing with a case where the applicability of law in case of providing treatment to a person in vegetative state was in question, the Court, as per it’s majority view, held that where a patient is in unconscious and vegetative state and the physicians seek removal of his life support system, the common law, and not the Health Care Consent Act, 1996(HCCA) applies when doctors and substitute decision-makers (SDM i.e. the person authorized to give consent on behalf of the incapable patient) disagree regarding the proposed withdrawal of an incapable patient’s life support. The Court opined that the Court, and not the Board, is the appropriate forum for resolving any disputes between the doctors and the incapable patient’s SDM and HCCA was not intended to cover the withdrawal of treatment or to provide comprehensive scheme, it provides that it does not affect the law relating to giving or refusing consent to anything not within the definition of “treatment” [Section8(2) of the Act] and the definition of “treatment” does not include the withdrawal or the withholding of treatment. Therefore, the reasonable conclusion is that HCCA does not alter the Common Law of consent by creating an entitlement to treatment it only ensures that when treatment is proposed, doctors, substitute decision-makers and the Board, are all bound by the patient’s known wishes, if clear and applicable.

In the instant case the dispute was that the physicians sought for removal of life support system and providing palliative care to an unconscious patient because the appropriate treatments had exhausted and continuation of life support was of no medical benefit. Dissenting with the majority view it was opined that the HCCA applies in this case, the Common Law of consent applies only for patients who have capacity to consent to treatment, however when a patient is incapable of appreciating the nature, purpose, and consequences of treatment the HCCA will apply as it has set out clear rules requiring consent before treatment, identifying who can consent, the criteria for giving consent and creation of a specialized body for settling disputes between the doctors and SDMs, providing that the Boards decisions are subject to judicial review in accordance with the Constitution. [Cuthbert v. Rasouli, 2013 SCC 53, decided on 18 October, 2013]

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