Brian Cuthbertson v. Gordon Rubenfeld, 2013 SCC 53

SUPREME COURT OF CANADA Citation: Cuthbertson v.

Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 Date: 20131018 Docket: 34362 Between: Brian Cuthbertson and Gordon Rubenfeld Appellants and Hassan Rasouli, by his Litigation Guardian and Substitute Decision-Maker, Parichehr Salasel Respondent - and - Consent and Capacity Board, Euthanasia Prevention Coalition, Canadian Critical Care Society, Canadian Association of Critical Care Nurses, Advocacy Centre for the Elderly, ARCH Disability Law Centre, Mental Health Legal Committee, HIV & AIDS Legal Clinic Ontario and Evangelical Fellowship of Canada Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 122) Dissenting Reasons: (paras. 123 to 206) McLachlin C.J. (LeBel, Fish, Rothstein and Cromwell JJ. concurring) Karakatsanis J. (Abella J. concurring) Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 Brian Cuthbertson and Gordon Rubenfeld Appellants

v. Hassan Rasouli, by his Litigation Guardian and Substitute Decision-Maker, Parichehr Salasel Respondent and Consent and Capacity Board, Euthanasia Prevention Coalition, Canadian Critical Care Society, Canadian Association of Critical Care Nurses, Advocacy Centre for the Elderly, ARCH Disability Law Centre, Mental Health Legal Committee, HIV & AIDS Legal Clinic Ontario and Evangelical Fellowship of Canada Interveners Indexed as: Cuthbertson v. Rasouli 2013 SCC 53 File No.: 34362. 2012: December 10; 2013: October 18.

Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ. on appeal from the court of appeal for ontario Health law — Consent to withdrawal of treatment — Health practitioners — Physicians seeking to remove life support and provide palliative care to unconscious patient on basis that all appropriate treatments exhausted and continuation of life support of no medical benefit — Patient’s substitute decision-maker disagreeing and refusing to provide consent — Whether withdrawal of treatment constitutes “treatment” under Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch.

A — Whether consent regime under Act governs withdrawal of life support and therefore consent required — Whether substitute decision-maker’s refusal to provide consent must be challenged before Consent and Capacity Board pursuant to the Act rather than in the courts under the common law — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 2(1) , 10(1) (b), 20 , 21 , 37 . R is unconscious and has been on life support since October 2010.

The physicians responsible for R’s care believed that he was in a persistent vegetative state, that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope for his medical recovery. In their opinion, continuing life support would not provide any medical benefit to R and may cause harm. They sought to remove his life support and to provide palliative care until his expected death.

S, R’s wife and substitute decision-maker (“SDM”), refused to provide her consent and applied to the Ontario Superior Court of Justice for an order restraining the physicians from withdrawing R from life support without her consent as required by the Health Care Consent Act, 1996 , S.O. 1996, c. 2, Sch. A (“ HCCA ”), and directing that any challenge to her refusal of consent be made to the Consent and Capacity Board (“Board”).

The physicians cross-applied for a declaration that consent is not required to withdraw life support where such treatment is futile, and that the Board has no jurisdiction to decide these issues. The Superior Court of Justice granted S’s application. The Ontario Court of Appeal upheld the order, finding that withdrawal of life support and administration of end-of-life palliative care were integrally linked and should be viewed as a “treatment package” requiring consent under the HCCA . Held (Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Fish, Rothstein and Cromwell JJ.: The consent regime imposed by the HCCA applies in this case. This legal framework, which aims at protecting patients’ autonomy and medical interests, has been used to resolve end-of-life disputes in Ontario for 17 years. Access to this established regime should not be closed off, casting these matters back into the courts.

While the common law of consent to medical treatment works well for patients who have the capacity to decide on consent to treatment, that approach is problematic when a patient is incapable of appreciating the nature, purpose, and consequences of the proposed treatment. The HCCA sets out clear rules requiring consent before treatment can occur, identifying who can consent for an incapable patient, stating the criteria on which consent must be granted or refused, and creating a specialized body to settle disputes, including those between SDMs and physicians over consent regarding life support.

Board decisions are subject to judicial review ensuring that the Board acts within its mandate and in accordance with the Constitution. The appellant physicians argue that: (1) life support that is not “medically indicated” is not “treatment” under s. 2(1) of the HCCA ; (2) in any event, the withdrawal of treatment does not itself constitute “treatment” and therefore does not require consent; and (3) requiring consent for withdrawal of life support will place them in an untenable ethical position. Reading the words of the statute in

their ordinary sense and in their context, and having regard to the objects and scheme of the Act, those arguments cannot succeed. First, “treatment” and “health-related purpose” are not confined to procedures that are of medical benefit in the view of the patient’s medical caregivers. Rather, “treatment” is broadly defined as “anything that is done” for one of the enumerated purposes (therapeutic, preventive, palliative, diagnostic and cosmetic) or “other health-related purpose”.

What the attending physician considers to be of “medical benefit” to the patient is a clinical term having legal implications for the physician’s standard of care. In contrast, “health-related purpose” is a legal term used in the HCCA to set limits on when actions taken by health practitioners will require consent. Additionally, in keeping the patient alive and forestalling death, life support arguably falls within “therapeutic” and “preventive” purposes listed in the definition of “treatment”.

Inclusion of life support in that definition is also generally supported by the objects of the HCCA , by providing consistency with respect to consent, by protecting autonomy through the requirement of consent, and by providing a meaningful role in the consent process for the SDM — often a close family member. An

interpretation of “treatment” that is confined to what the medical caregiver considers to be of medical benefit to the patient would give these statutory purposes short shrift. As to the physicians’ second argument, “treatment” in the HCCA is broadly defined and therefore should be understood as extending to withdrawal of life support in the situation at issue here and as that process is described in these proceedings.

Withdrawal of life support aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body, and is closely associated with the provision of palliative care. By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way and goes to the heart of the purposes of the HCCA . Those purposes would be ill-served by an

interpretation that holds withdrawal of life support cannot constitute “treatment” under the Act. Moreover, the Board regularly exercises its jurisdiction in cases where physicians propose to withdraw life support, consistent with the view that withdrawal of life support constitutes “treatment” under the HCCA . Third, while a physician may feel that the legal obligation not to withdraw life support is in tension with their professional or personal ethics, such tensions are inherent to medical practice.

A physician cannot be legally faulted for following the direction of the Board any more than he or she could be faulted for abiding by a judge’s direction at common law not to withdraw life support. Implicit in the physicians’ request that a judge resolve the present dispute is acceptance that if a judge orders that life support cannot be withdrawn, they must comply. Their legal position under the HCCA is no different.

The HCCA ’s scheme for dispute resolution offers several avenues through which a clash with a physician’s ethical compunctions may be averted; the physician’s submissions on the patient’s condition, the nature of the proposal to withdraw life support, and what will medically benefit the patient will be highly relevant to the Board’s analysis. While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA .

Having determined that R should be removed from life support, the appellant physicians, applying the HCCA in this case, were obliged to seek S’s consent to the withdrawal: ss. 10(1) (

b) and 20 . Since R had not expressed a prior applicable wish within the meaning of s. 21(1), S was required to determine whether removal of life support was in R’s best interests, having regard to a series of mandatory factors relating to his medical condition, well-being, values and wishes: s. 21(2). If the appellant physicians do not agree that maintaining life support for R is in his best interests, their recourse is to apply to the Board for a determination of whether S’s refusal to provide consent to the withdrawal complied with s. 21 : s. 37(1).

It will then be for the Board to determine whether S’s refusal to provide consent to the withdrawal of life support was in R’s best interests, within the meaning of s. 21(2). If the Board is of the opinion it was not, it may substitute its decision for that of S, and clear the way for removal of R’s life support. Per Abella and Karakatsanis JJ. (dissenting): The common law, and not the HCCA , governs when doctors and substitute decision-makers disagree regarding the proposed withdrawal of an incapable patient’s life support.

Thus, the court, and not the Board, is the appropriate forum for resolving any disputes between the doctors and the incapable patient’s substitute decision-maker. The HCCA was not intended to cover the withdrawal of treatment or to provide a comprehensive scheme. It specifically provides that it does not affect the law relating to giving or refusing consent to anything not within the definition of “treatment” (s. 8(2)). The definition of “treatment” does not include the withdrawal or the withholding of treatment. Further, the withdrawal of treatment and the provision of palliative care are separate issues.

The reasonable conclusion is that the HCCA does not alter the common law of consent by creating an entitlement to treatment. The HCCA codifies and builds upon the common law of consent in Ontario. It is designed to give effect to the principle of patient autonomy — a principle with deep roots in our common law — that permits a patient to refuse medical treatment, no matter the consequences. The scheme of the Act 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.

This is true for all treatments; there are no special provisions for end-of-life scenarios. However, the HCCA does not permit a patient to dictate treatment. Neither the words nor the scheme of the Act contemplate a patient’s right to stop a doctor from withdrawing treatment that is no longer medically effective or is even harmful. Such an extension of patient autonomy to permit a patient to insist on the continuation of treatment that is medically futile would have a detrimental impact on the standard of care and legal, ethical, and professional duties in the practice of medicine.

The role of patient autonomy must be balanced with the physician’s role, expertise, and advice. As well, there are a myriad of important interests, such as the integrity of our health care system, at stake. As with the HCCA , the common law does not entitle a patient to insist upon continuation of treatment; it does not require a patient’s consent to the withholding or withdrawal of treatment. Even in those cases in which the court has intervened to prevent doctors from unilaterally withdrawing or withholding treatment, the courts did not conclude that consent was required.

Rather, in those cases, the courts ordered an injunction pending trial. Other courts have explicitly concluded that consent is not required for the withdrawal of treatment and that it is not appropriate for a court to interfere with medical doctors acting unilaterally and professionally in the best interests of a patient. The common law protects the interests of Canadians in the medical realm by requiring physicians to act (1) in accordance with the conduct of a prudent practitioner of the same experience and standing in the field, including a duty to obtain informed consent,

and (2) in the best interests of their patients. In many typical doctor-patient relationships, the fiduciary obligation and the standard of care will likely overlap or resembleone another. However, in the end-of-life scenario where ongoing life support is futile, the foundation and ambit of a doctor’s fiduciaryduty would be a useful and appropriate conceptual paradigm to supplement the standard of care and address the broader best interests ofthe patient.

These obligations should require doctors to undertake a certain process for resolving important questions in the end-of-lifesetting by including a role for the family or substitute decision-maker; providing notice and a thorough and accommodating process fordetermining the condition and best interests of the patient; and, where they are of the opinion that life support for a patient should bewithdrawn, exploring alternative institutions willing to continue the treatment.

Ultimately, if a doctor is satisfied that treatment is futile,he or she may discontinue treatment notwithstanding the wishes of the patient or family, provided they have followed these consultativeprocesses and considered the patient’s best interests. Where, as here, a family member or a substitute decision-maker disagrees with the medical practitioner’s decision towithdraw life support, that person may apply to the court to challenge the physician’s decision.

In reviewing whether a physician isacting within the professional standard of care, the court should determine whether the life support has any chance of being medicallyeffective and whether withdrawal of the treatment is in the best interests of the patient. This necessarily includes consideration of thepatient’s wishes, values and beliefs, in addition to the broad mental and physical implications for the patient’s condition and well-being. However, in making that determination, the continuation of life is not an absolute value.

The ultimate decision whether to withdrawlife-sustaining treatment must respect the medical or physical consequences of withdrawal or continuation of life support, and also thepersonal autonomy, bodily integrity, and human dignity of the patient. A doctor cannot be required to act outside of the standard of careand contrary to his or her professional duties. In this case, the application judge made no factual findings about the patient’s condition and effectiveness of any treatment,and the patient’s diagnosis has been subject to change.

The matter should therefore be remitted to the Ontario Superior Court of Justice,so that it may make the necessary findings of fact, and to determine whether the withdrawal of life support is in accordance with thestandard of care and the best interests of the patient. Cases Cited By McLachlin C.J. Referred to: Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880; Hopp v. Lepp, (SCC), [1980] 2S.C.R. 192; Fleming v. Reid (1991), (ON CA), 4 O.R. (3d) 74; Malette v. Shulman (1990), (ONCA), 72 O.R. (2d) 417; E. (Mrs.) v. Eve, (SCC), [1986] 2 S.C.R. 388; B. (R.) v.

Children’s Aid Society of MetropolitanToronto, (SCC), [1995] 1 S.C.R. 315; Re S.D., (BC SC), [1983] 3 W.W.R. 618; Starson v. Swayze,2003 SCC 32, [2003] 1 S.C.R. 722; Golubchuk v. Salvation Army Grace General Hospital, 2008 MBQB 49, 227 Man. R. (2d) 274;Sweiss v. Alberta Health Services, 2009 ABQB 691, 483 A.R. 340; Children’s Aid Society of Ottawa-Carleton v. C. (M.) (2008), (ON SC), 301 D.L.R. (4th) 194; E.J.G. (Re), ; G. (Re), ; A.K. (Re), ; Scardoni v. Hawryluck (2004), (ON SC), 69 O.R. (3d) 700; R. (Burke) v. General Medical Council, [2005]EWCA Civ 1003, [2005] 3 W.L.R. 1132; Conway v.

Jacques (2002), (ON CA), 59 O.R. (3d) 737; K.M.S. (Re), ; D.D. (Re), ; P. (D.), Re, 2010 CarswellOnt 7848; E.B. (Re), ; E. (Re), ; H.J. (Re), ; M. (A.) v. Benes (1999), (ON CA), 46 O.R. (3d) 271; D.W. (Re), ; S.S. (Re), ; N., Re, (ON CCB), 2009 CarswellOnt 4748; Crits v. Sylvester (1956), (ON CA), 1 D.L.R (2d) 502, aff’d (SCC), [1956] S.C.R. 991; McInerney v. MacDonald, (SCC), [1992] 2 S.C.R. 138; Norberg v. Wynrib, (SCC), [1992] 2 S.C.R. 226. By Karakatsanis J. (dissenting) Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880; Hopp v. Lepp, (SCC), [1980] 2 S.C.R. 192;McInerney v.

MacDonald, (SCC), [1992] 2 S.C.R. 138; Airedale N.H.S. Trust v. Bland, [1993] A.C. 789; Sweiss v.Alberta Health Services, 2009 ABQB 691, 483 A.R. 340; I.H.V., Re, 2008 ABQB 250, 449 A.R. 211; Sawatzky v. Riverview HealthCentre Inc. (1998), (MB KB), 132 Man. R. (2d) 222; Golubchuk v. Salvation Army Grace General Hospital, 2008MBQB 49, 227 Man. R. (2d) 274; Jin v. Calgary Health Region, 2007 ABQB 593, 428 A.R. 161; Child and Family Services of CentralManitoba v. R.L. (1997), (MB CA), 123 Man. R. (2d) 135; Rotaru v.

Vancouver General Hospital Intensive CareUnit, 2008 BCSC 318 ; Re J (a minor) (wardship: medical treatment), [1992] 4 All E.R. 614; Re R (a minor) (wardship: medical treatment), [1991] 4 All E.R. 177; In Re: The Conservatorship of Helga M. Wanglie, No. PX-91-283 (1991), reported in (1991),7 Issues L. & Med. 369; In the Matter of Baby “K”, 16 F.3d 590 (1994); ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R.674; Norberg v. Wynrib, (SCC), [1992] 2 S.C.R. 226; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519. Statutes and Regulations Cited Care Consent Act, S.Y. 2003, c. 21, Sch. B.

Civil Code of Québec, S.Q. 1991, c. 64, arts. 11 to 25. Consent to Treatment and Health Care Directives Act, R.S.P.E.I. 1988, c. C-17.2. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 1, 2(1) “plan of treatment”, “treatment”, 8(2), 10(1), (2), 13, 20, 21, 29(1),(2), (3), 35, 36, 37, 85(1)(f). Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181. Health Care Decisions Act, Va. Code Ann. § 54.1-2990 (2013).

Health Care Directives Act , C.C.S.M. c. H27. Legislation Act, 2006 , S.O. 2006, c. 21, Sch. F, s. 64(1). Tex. Health & Safety Code Ann. § 166.052 (Vernon 2012). Uniform Health-Care Decisions Act § 7, 9 U.L.A. 83 (2011). Authors Cited Canada. Law Reform Commission. “Euthanasia, Aiding Suicide and Cessation of Treatment”, Working Paper 28. Ottawa: The Commission, 1982. Canada. Senate. Special Senate Committee on Euthanasia and Assisted Suicide. Of Life and Death: Report of the Special Senate Committee on Euthanasia and Assisted Suicide . Ottawa: The Committee, 1995.

Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada. “Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care”, 1999 (online: http://policybase.cma.ca/dbtw-wpd/PolicyPDF/PD99-03.pdf). Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada. “Joint Statement on Resuscitative Interventions (Update 1995)”, 1995 (online: http://www.cma.ca/index.php/ci_id/33236/la_id/1.htm).

College of Physicians & Surgeons of Manitoba. Statement No. 1602: “Withholding and Withdrawing Life-Sustaining Treatment”, September 2007 (online: http://cpsm.mb.ca/cjj39alckF30a/wp-content/uploads/st1602.pdf). College of Physicians and Surgeons of Ontario. Policy Statement #1-06: “Decision-making for the End of Life”, July 2006 (online: http://www.cpso.on.ca/policies/policies/default.aspx?ID=1582). Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada , 4th ed. Toronto: Carswell, 2011. Hoffman, Brian F. The Law of Consent to Treatment in Ontario , 2nd ed. Toronto: Butterworths, 1997. Manitoba. Law Reform Commission. “Withholding or Withdrawing Life Sustaining Medical Treatment”, Report #109, December 2003 (online: http://www.manitobalawreform.ca/pubs/pdf/archives/109-full_report.pdf). New Oxford Dictionary of English . Oxford: Clarendon Press, 1998, “preventive”, “therapeutic”. Picard, Ellen I., and Gerald B. Robertson. Legal Liability of Doctors and Hospitals in Canada , 4th ed. Toronto: Thomson Carswell, 2007.

Stedman’s Medical Dictionary , 28th ed. Philadelphia: Lippincott Williams & Wilkins, 2006, “extubation”. Sullivan, Ruth. Sullivan on the Construction of Statutes , 5th ed. Markham, Ont.: LexisNexis, 2008. Young, Hilary. “Why Withdrawing Life-Sustaining Treatment Should Not Require ‘ Rasouli Consent’” (2012), 6:2 M.J.L.H. 54. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Simmons JJ.A.), 2011 ONCA 482 , 107 O.R. (3d) 9, 281 O.A.C. 183, 89 C.C.L.T. (3d) 175, [2011] O.J.

No. 2984 (QL), 2011 CarswellOnt 14871, affirming a decision of Himel J., 2011 ONSC 1500 , 105 O.R. (3d) 761, 231 C.R.R. (2d) 26, [2011] O.J. No. 1100 (QL), 2011 CarswellOnt 1650 ( sub nom. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre ). Appeal dismissed, Abella and Karakatsanis JJ. dissenting. Harry Underwood , Andrew McCutcheon and Erica J. Baron , for the appellants. J. Gardner Hodder , Guillermo Schible and Stefan A. De Smit , for the respondent. No one appeared for the intervener the Consent and Capacity Board. Hugh R. Scher , for the intervener the Euthanasia Prevention Coalition.

Andrew S. Faith and Alexi N. Wood , for the intervener the Canadian Critical Care Society. Rahool P. Agarwal , Nahla Khouri and Nicholas Saint-Martin , for the intervener the Canadian Association of Critical Care Nurses. Dianne Wintermute , Graham Webb and C. Tess Sheldon , for the interveners the Advocacy Centre for the Elderly and the ARCH Disability Law Centre. Marshall Swadron , Ryan Peck and Amy Wah , for the interveners the Mental Health Legal Committee and the HIV & AIDS Legal Clinic Ontario. Albertos Polizogopoulos and Don Hutchinson , for the intervener the Evangelical Fellowship of Canada.

The judgment of McLachlin C.J. and LeBel, Fish, Rothstein and Cromwell JJ. was delivered by The Chief Justice — I. Introduction A. Overview [ 1 ] This case presents us with a tragic yet increasingly common conflict. A patient is unconscious. He is on life support — support that may keep him alive for a very long time, given the resources of modern medicine. His physicians, who see no prospect of recovery and only a long progression of complications as his body deteriorates, wish to withdraw life support. His wife, believing that he would wish to be kept alive, opposes withdrawal of life support.

How should the impasse be resolved? [ 2 ] In the past, disputes between next of kin and physicians over consent regarding life support and other forms of medical treatment for incapable patients were resolved through the courts, under the common law. However, in Ontario, the Health Care Consent Act, 1996 , S.O. 1996, c. 2, Sch. A (“ HCCA ”), provides a statutory scheme for resolving such disputes. Under the HCCA , a designated substitute decision-maker — often a close family member — has the right to determine whether life support can be withdrawn in the first instance.

In making that decision, she must act in accordance with the provisions of the HCCA , which aim at protecting patients’ autonomy and medical interests. In the event of disagreement, it is open to the attending physician to challenge the substitute decision-maker’s decision on the ground that it is not in accordance with the HCCA , by applying to the Consent and Capacity Board (“Board”).

The HCCA empowers the Board to make the final decision on the issue of consent for incapable patients. [ 3 ] The appellant physicians in this case take the position that the HCCA does not apply because consent is not required for withdrawal of life support that does not provide any medical benefit to the patient. The courts below rejected that contention, as would I. It follows that the appeal should be dismissed. Where a substitute decision-maker does not consent to the withdrawal of life support, the physicians’ remedy is an application to the Board. [ 4 ] This case turns on statutory

interpretation — what the HCCA provides. It is not a case about who, in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment. Nor does the case require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed of little or no value. The Ontario legislature has addressed the conflicting interests and arguments that arise in cases such as this in the HCCA .

The Court’s task is simply to determine what the statute requires. I note that the parties did not address resource implications or Charter issues in this appeal. B. The Events [ 5 ] In October 2010, Mr. Hassan Rasouli underwent surgery at Sunnybrook Health Sciences Centre (the “Hospital”) to remove a benign brain tumour. Following the procedure, Mr. Rasouli developed an infection that caused severe and diffuse brain damage. As a result, Mr.

Rasouli has been unconscious since October 16, 2010, and is being kept alive by mechanical ventilation, connected to a tube surgically inserted into his trachea, and artificial nutrition and hydration, delivered through a tube inserted into his stomach. Without these life-sustaining measures, it is expected that Mr. Rasouli would pass away. [ 6 ] The physicians responsible for Mr. Rasouli’s care, including the appellants, Dr. Cuthbertson and Dr. Rubenfeld, formed the opinion that Mr.

Rasouli was in a persistent vegetative state, that all appropriate treatments for his condition had been exhausted, and that there was no realistic hope for his medical recovery. In the opinion of the physicians, continuing to provide life support would not provide any medical benefit to Mr. Rasouli and may cause harm. They seek to remove his life support and to provide palliative care until his expected death. [ 7 ] The physicians informed Mr. Rasouli’s wife, Ms. Parichehr Salasel, who is also his litigation guardian and substitute decision-maker under the HCCA , of Mr.

Rasouli’s diagnosis and their proposed course of action. She would not agree. Ms. Salasel and her family wish to keep Mr. Rasouli alive. Ms. Salasel does not accept that Mr. Rasouli is in a state of permanent and irreversible unconsciousness and believes that, as a devout Shia Muslim, he would wish to be kept alive. She contends that new evidence on Mr. Rasouli’s neurological function indicates an increased level of consciousness. [ 8 ] In the face of Ms. Salasel’s disagreement, the Hospital arranged for a second opinion from a neurologist who had not been involved in Mr. Rasouli’s care.

The neurologist concurred with the original diagnosis and assessment. The Hospital also contacted another facility to see whether Mr. Rasouli could be treated elsewhere, but that facility was not prepared to admit Mr. Rasouli. In addition, the physicians offered Ms. Salasel the opportunity to independently obtain an opinion from another neurologist, which she chose not to do. [ 9 ] Faced with an impasse, the physicians agreed to postpone their plans to withdraw life support until Ms. Salasel could apply to the Ontario Superior Court of Justice for an order restraining the physicians from withdrawing Mr.

Rasouli from life support, and directing that any challenge to her refusal of consent be made to the Board. The physicians cross-applied for a declaration that Mr. Rasouli is in a permanent vegetative state, that consent is not required to withdraw life support where such treatment is futile, and that the Board has no jurisdiction to decide these issues. C. Court Decisions [ 10 ] The Ontario Superior Court of Justice, per Himel J., granted Ms.

Salasel’s application for an order that life support could not be removed without her consent, and that any challenge to her refusal to consent must be brought before the Board: 2011 ONSC 1500 , 105 O.R. (3d) 761. [ 11 ] The Ontario Court of Appeal upheld this order. It held that withdrawal of life support and administration of end-of- life palliative care were integrally linked and should be viewed as a “treatment package”: 2011 ONCA 482 , 107 O.R. (3d) 9, at para. 52 .

Since consent to the administration of palliative care was clearly required under the HCCA, it should also be required for the “treatmentpackage” of withdrawal of life support and administration of palliative care. [12] In January 2012, before the hearing of the appeal in this Court, assessments by two neurologists resulted in a changeto Mr. Rasouli’s diagnosis from permanent vegetative state to minimally conscious state. As a result, the appellant physicians took theview that further investigations were required to determine whether Mr.

Rasouli may be capable of any communication, which couldbear on their assessment of whether life support should be continued. Ms. Salasel, on the other hand, brought a motion to quash theappeal given the change in diagnosis. The motion was dismissed by this Court in May 2012. [13] In November 2012, both parties brought motions to adduce new evidence on Mr. Rasouli’s neurological function. These motions were referred to the panel hearing the appeal to be determined at the hearing.

In light of my conclusion that the substanceof the dispute must be determined by the Board, I would dismiss the motions to adduce fresh evidence, without prejudice to the Boardreceiving any evidence it deems relevant. D.

Issues [14] This appeal raises two questions. [15] The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms.Salasel’s consent to withdrawal of life support is required, and that her refusal can be challenged only before the Board. [16] Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law thisCourt should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent. II.

Discussion [17] In enacting the HCCA, the Ontario legislature both codified and in important ways modified the common law ofconsent to medical treatment. It is therefore useful to begin by situating the statute within the common law legal landscape. A. The Common Law Backdrop [18] At common law, medical caregivers must obtain a patient’s consent to the administration of medical treatment: Reiblv. Hughes, (SCC), [1980] 2 S.C.R. 880; Hopp v. Lepp, (SCC), [1980] 2 S.C.R. 192.

The physiciancannot override the patient’s wishes to be free from treatment, even if he believes that treatment is in the vital interests of the patient. The patient’s consent must be given voluntarily and must be informed, which requires physicians to ensure the patient understands thenature of the procedure, its risks and benefits, and the availability of alternative treatments before making a decision about a course oftreatment. The requirement for informed consent is rooted in the concepts of an individual’s right to bodily integrity and respect forpatient autonomy: see Fleming v.

Reid (1991), (ON CA), 4 O.R. (3d) 74 (C.A.). [19] The common law of consent to medical treatment works well for patients who have the capacity to decide onconsent to treatment, in the sense of being able to understand the nature, purpose, and consequences of the proposed treatment.

Thepatient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumpingall other interests, including what physicians may think is in the patient’s best interests. [20] However, the traditional common law approach to medical treatment is more problematic when a patient isincapable of appreciating the nature, purpose, and consequences of the proposed treatment. As explained in Malette v.

Shulman (1990), (ON CA), 72 O.R. (2d) 417 (C.A.), at pp. 423-24, the common law doctrine of informed consent “presupposes thepatient’s capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by thedoctor and on her assessment of her own personal circumstances”. When such capacity is lacking, the patient is not in a position toexercise his autonomy by consenting to or refusing medical treatment. [21] If a patient is incapable, disputes over consent to treatment at common law are resolved in the courts.

The focusshifts from the patient’s autonomy interest, which is compromised or extinguished, to whether receiving treatment is in the best interestsof the patient. In emergency situations, where treatment is necessary to save the life or preserve the health of an incapable patient,treatment may be provided without consent: Malette, at p. 424. In non-emergency situations, treatment may be authorized by a court,acting under its parens patriae jurisdiction, or in the case of an incapable minor, by the child’s parents or legal guardian. See, e.g., E.(Mrs.) v. Eve, (SCC), [1986] 2 S.C.R. 388; B. (R.) v.

Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, at para. 83; Re S.D., (BC SC), [1983] 3 W.W.R. 618 (B.C.S.C.), at p. 629. B. The Statutory Scheme [22] Many provinces found the common law regime for the treatment of incapable patients unsatisfactory and devisednew approaches through legislation. In 1996, the Ontario legislature passed the HCCA, which provides a statutory framework governingconsent to treatment for capable and incapable patients. Similar legislation has been adopted in other provinces. See The Health CareDirectives Act, C.C.S.M. c.

H27; Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181; Care Consent Act,S.Y. 2003, c. 21, Sch. B; Civil Code of Québec, S.Q. 1991, c. 64, arts. 11 to 25; Consent to Treatment and Health Care Directives Act,R.S.P.E.I. 1988, c. C-17.2. [23] Each of these statutes provides a framework for resolving the difficult issues surrounding treatment of patients wholack capacity to decide for themselves: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. Generally speaking, the statutes giveeffect to the patient’s autonomy interest insofar as possible.

If the patient’s autonomy is compromised by lack of capacity, they seek tobalance it against considerations related to the best interests of the patient. Finally, some statutes provide for resolution of disputes byspecialized tribunals instead of the courts. The HCCA does all these things.

[ 24 ] The purposes of the Act are: 1. . . . (

a) to provide rules with respect to consent to treatment that apply consistently in all settings; (

b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters; (

c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by, (

i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding, (ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and (iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to; (

d) to promote communication and understanding between health practitioners and their patients or clients; (

e) to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment, admission to a care facility or a personal assistance service; and (

f) to permit intervention by the Public Guardian and Trustee only as a last resort in decisions on behalf of incapable persons concerning treatment, admission to a care facility or personal assistance services. [ 25 ] The HCCA starts from the general premise that medical treatment cannot be administered without consent: s. 10(1). Building on this premise, the HCCA goes on to provide a detailed scheme governing consent to treatment for incapable patients. It provides that a substitute decision-maker must consent to treatment of an incapable patient: ss. 10(1) (

b) and 20 . The statute sets out a clear hierarchy designating who will serve as substitute decision-maker: s. 20(1). This will often be a close family member of the patient, furthering the statutory objective of ensuring “a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment”: s. 1 (e). [ 26 ] The substitute decision-maker does not have a free hand to grant or refuse consent at will. She must respect prior applicable wishes of the patient expressed while the patient was capable: s. 21(1).

If there are no such wishes, the substitute decision- maker must decide based on the best interests of the patient, taking into consideration a series of mandatory factors relating to the medical condition, well-being, values, and wishes of the patient: s. 21(2). [ 27 ] The HCCA does not neglect the role of health practitioners in the treatment of incapable patients.

First, where there is a prior wish by the patient, the attending physician may ask the Board to find that the wish is not applicable to the patient’s current circumstances (s. 35), or to permit a departure from the wish because the likely result of treatment has significantly improved since the wish was made: s. 36. Second, if the physician feels that a substitute decision-maker has not complied with the HCCA ’s rules for giving or refusing consent to treatment, he may challenge the consent decision by application to the Board: s. 37 .

Such a challenge will generally focus on medical considerations within the s. 21(2) best interests analysis. The physician’s views of what will medically benefit the patient are obviously critical to the Board’s determination of the patient’s best interests. However, the HCCA gives the Board final responsibility to decide disputes over consent to treatment for incapable patients, based on an objective assessment of whether the substitute decision-maker complied with the requirements of the HCCA . [ 28 ] In

summary, the HCCA contemplates disputes between physicians and substitute decision-makers over the care of incapable patients, and provides for their resolution by the Board, an independent, quasi-judicial body with specialized jurisdiction over matters of consent to medical treatment. C. “Treatment”: Measures That Serve a Health-Related Purpose [ 29 ] The HCCA requires consent to all measures that constitute “treatment”. Section 10(1) of the Act provides:

(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (

a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (

b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act . [ 30 ] “Treatment”, in turn, is broadly defined as care given for a health-related purpose . Section 2(1) provides: . . . anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose , and includes a course of treatment, plan of treatment or community treatment plan . . . . [ 31 ] The issue raised in this case thus comes down to the

interpretation of “treatment” and “health-related” purpose under s. 2(1) of the HCCA . [ 32 ] The basic rule of statutory

interpretation is that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1. Every statute “shall be given such fair, large and liberal

interpretation as best ensures the attainment of its objects”: Legislation Act, 2006 , S.O. 2006, c. 21, Sch. F, s. 64(1). [ 33 ] There is no dispute between the parties that, in general, the provision of life support constitutes treatment under the HCCA and therefore requires consent. The question is whether withdrawal of life support constitutes treatment on the facts of this case. The physicians argue that it does not.

They raise three arguments: (1) life support that is not “medically indicated” is not “treatment” under the HCCA ; (2) in any case, withdrawal of treatment does not itself constitute “treatment” under the HCCA ; and (3) requiring consent for withdrawal of life support will place them in an untenable ethical position. I will consider each argument in turn. D.

The Argument That “Treatment” Is Confined to What Is of Medical Benefit to the Patient [ 34 ] The physicians argue that treatment under the HCCA is limited to what the attending physician or caregiver deems to be of medical benefit to the patient (in other words, what is medically indicated). Mr. Rasouli’s physicians have concluded that life support no longer offers a medical benefit, despite keeping him alive, given his unconscious state and the extreme unlikelihood of his recovery. It follows, they argue, that the provision of life support to Mr.

Rasouli has ceased to be treatment under the HCCA , obviating the need for consent to its withdrawal. [ 35 ] The difficulty with the physicians’ argument is that it substitutes a physician-made criterion for treatment (medical benefit) for the criterion specified in the HCCA for consent (health-related purpose). These concepts sound similar, but they are in reality different. [ 36 ] The concept of “medical benefit” is a clinical term used by physicians to determine whether a given procedure should be offered to a patient. This clinical term has legal implications for the physician’s standard of care.

If a treatment would be of medical benefit to the patient in this sense, the physician may be required to offer that treatment in order to comply with his standard of care.

Whether a given treatment offers a medical benefit requires a contextual assessment of the patient’s circumstances, including the patient’s condition and prognosis, the expected result of treatment for that patient, and any risks of treatment for that patient: A.F., at para. 44. [ 37 ] The concept of “health-related purpose”, by contrast, is a legal term used in the HCCA to set limits on when actions taken by health practitioners will require consent under the statute. “Treatment” is “anything that is done” for one of the enumerated purposes (therapeutic, preventive, palliative, diagnostic and cosmetic) or “other health-related purpose”.

Under the HCCA , only acts undertaken for a health-related purpose constitute treatment, and therefore require consent. The concept of health-related purpose in the HCCA does not interfere with a physician’s professional assessment of whether a procedure offers a medical benefit. Its only function is to determine when the actions of health care practitioners require patient consent. [ 38 ] The issue here is not the correctness of the physicians’ professional opinion that sustaining life in Mr. Rasouli’s situation confers no medical benefit.

In fact, their opinion appears to reflect a widely accepted view in the medical community. The issue at this stage of the argument is whether maintaining Mr. Rasouli’s life serves a health-related purpose within the meaning of the HCCA . [ 39 ] The wording of the HCCA does not limit “health-related purpose” to what the attending physician considers to medically benefit the patient. The HCCA does not use the terms “medical benefit” or “medically indicated”.

The legislature could easily have taken this approach but instead chose to define “treatment” more broadly with a wide-ranging and non-exhaustive list of health- related purposes. [ 40 ] The words of the HCCA on their face cover provision of life support that is effective in keeping the patient alive and forestalling death.

Life support arguably falls within “therapeutic” and “preventive” purposes, listed in the definition of “treatment” in s. 2(1) . [ 41 ] The New Oxford Dictionary of English (1998), defines “therapeutic” as “relating to the healing of disease”, but also as “having a good effect on the body or mind” (p. 1922). Maintaining life support for Mr. Rasouli does not serve the purpose of “healing of disease”. However, it can be argued that maintaining life support has a “good effect on the body”, in the sense of keeping it alive.

[42] The same dictionary defines “preventive” as describing a medicine or other treatment “designed to stop disease or illhealth from occurring” or “designed to keep something undesirable such as illness, harm, or accidents from occurring” (p. 1469). Ifdeath is considered harmful or a manifestation of ill health, then life support serves a preventive purpose so long as it is effective inpreventing death. [43] Inclusion of life support in “treatment” is also generally supported by the objects of the HCCA. It providesconsistency with respect to consent, protects autonomy through the requirement of consent, and provides a meaningful role in theconsent process for family members. An

interpretation of “treatment” that is confined to what the medical caregiver considers to be ofmedical benefit to the patient would give these statutory purposes short shrift. The legislature cannot have intended such a crabbedinterpretation of “treatment”. [44] Reading the words of the statute in their ordinary sense and in their context, and having regard to the objects andscheme of the Act, I cannot accept the physicians’ argument that “treatment” and “health-related purpose” are confined to proceduresthat are of medical benefit in the view of the patient’s medical caregivers. E.

The Argument That “Treatment” Does not Extend to Withdrawal of Treatment [45] The physicians argue that withdrawal of life support does not constitute “treatment” under the HCCA, because it isnot treatment but withdrawal of treatment. They argue that the Act distinguishes between administering a particular type of care, whichis “treatment” requiring consent, and removing that care, which is not “treatment” and does not require consent. Consequently, theyargue, withdrawal of Mr. Rasouli’s life support does not require Ms. Salasel’s consent.

I conclude that this argument cannot succeed,essentially because withdrawal of life support involves — indeed may be viewed as consisting of — a series of acts that serve health-related purposes, and because the critical interests at stake where withdrawal of life support is concerned go to the heart of the purposesof the HCCA. [46] On its face, the definition of “treatment” in s. 2(1) appears broad enough to include “withdrawal of treatment”.

Theopening words of the definition could not be more expansive: “. . . anything that is done” for one of the enumerated health-relatedpurposes or other health-related purpose is included in “treatment”. [47] The breadth of the concept of “treatment” is reinforced by the express exclusions from this term under the HCCA. For example, the assessment or examination of a person, the taking of a person’s health history, and the communication of an assessmentor diagnosis are all excluded from the definition of “treatment”: s. 2(1).

That the legislature felt it necessary to specify that such actionsare not included within the definition of treatment strengthens the view that “treatment” was intended to have a very broad meaning. [48] The regulatory powers conferred by the HCCA further support this conclusion. The statute provides machinery forthe scope of the term “treatment” to be narrowed by regulation, but not to be enlarged. The Lieutenant Governor in Council may passregulations prescribing actions that do not constitute treatment, but cannot prescribe actions that constitute treatment: ss. 2(1) and 85(1)(f).

The delegated authority to narrow, but not to enlarge, the definition of “treatment” suggests that the legislature intended the overallconcept of treatment to be broadly construed. [49] Given the breadth of the definition of “treatment” articulated in the HCCA, it seems on first impression thatwithdrawal of treatment could fall within this term.

Withdrawal or discontinuance of a given treatment clearly may be something donefor a therapeutic, preventive, palliative, or other health-related purpose. [50] The scheme of the HCCA suggests that the legislature contemplated that withdrawal of treatment requires consent insome cases. One form of treatment identified under the HCCA is a “plan of treatment”, which is a defined term under the statute: s.2(1). A physician may obtain consent for a plan of treatment that provides for various treatments and may provide for the withholdingor withdrawal of treatment: ss. 2(1) and 13.

Section 29(3) then states that if a treatment is withheld or withdrawn in accordance with aplan of treatment that the physician believes reasonably and in good faith was consented to, the physician is not liable for withholding orwithdrawing the treatment. This provision would serve no purpose if consent were not required for the withholding or withdrawal oftreatment in some circumstances. [51] The objects of the HCCA also support the view that “treatment” may include withdrawal of treatment.

The values ofautonomy — critical where life is at stake — and providing a meaningful role for family members support regarding withdrawal of lifesupport as “treatment” requiring consent. These values must be balanced against that of ensuring appropriate care for incapablepatients. The HCCA aims to strike the right balance among these values. Its purposes would be ill served by an

interpretation that holdswithdrawal of life support cannot constitute “treatment” under the Act. [52] Nor can I accept that the HCCA does not encompass withdrawal of life support because the legislature’s intentionwas simply to codify the common law. Nothing in the HCCA suggests that it is merely a codification of the common law. While theHCCA builds on the common law, its consent requirement is in some ways broader and in other ways narrower than the common law,based as it is on the detailed definition of “treatment” in s. 2(1): B. F.

Hoffman, The Law of Consent to Treatment in Ontario (2nd ed.1997), at pp. 7, 10 and 163. For anything done which is outside the definition of “treatment”, the common law applies: s. 8(2). Foranything done which is inside the definition of “treatment”, the HCCA applies. The HCCA goes on to provide an administrative schemethat is entirely independent of the common law. [53] Even if the HCCA merely codified the common law, this would not answer the question of whether consent isrequired for withdrawal of life support. The common law is not at all settled on this issue.

While the common law has traditionallyviewed consent as giving patients the right to refuse medical care rather than to refuse its withdrawal, courts have struggled with theapplicability of this paradigm in the end-of-life context and have reached divergent conclusions: see, e.g., Golubchuk v. Salvation ArmyGrace General Hospital, 2008 MBQB 49, 227 Man. R. (2d) 274, at paras. 22 and 25; Sweiss v. Alberta Health Services, 2009 ABQB691, 483 A.R. 340, at para. 48; Children’s Aid Society of Ottawa-Carleton v. C. (M.) (2008), (ON SC), 301 D.L.R.(4th) 194 (Ont. S.C.J.), at paras. 33-34.

[54] The arguments just reviewed undermine the view that withdrawal of life support is not “treatment” requiringconsent. The physicians, however, advance two counter-arguments. [55] The first is textual. It is argued that by expressly including withdrawal of treatment in “plan of treatment”, thelegislature indicated that it did not intend withdrawal of treatment to be treatment requiring consent unless the withdrawal is part of aplan of treatment. [56] However, it is difficult to draw inferences of legislative intent on point from these provisions.

As pointed out by thecourts below, measures must be “treatment” to be included within a “plan of treatment”, making the necessary process of inferencecircular. Moreover, it is unclear what the legislature meant by “plan of treatment”. A plan of treatment entails obtaining consent to allelements of the plan: s. 13. But the HCCA does not clarify whether a plan of treatment is fixed and must be fully specified in advance, orwhether it permits flexible alteration in response to changes in the patient’s situation — an understanding that might extend to a casesuch as this.

Whatever the correct response to these questions, the point is simply that it is not clear that the legislature intended onlywithdrawals of treatment that are part of a “plan of treatment” to be “treatment” under the HCCA. [57] Moreover, common sense suggests that the legislature cannot have intended withdrawal of life support to requireconsent only in the context of a plan of treatment. This would place the issue of consent at the sole discretion of physicians.

A plan oftreatment is simply a way in which physicians may choose to group and present various treatments to the patient for the purpose ofobtaining consent. Allowing physicians to unilaterally determine whether consent is required in any given case cuts against patientautonomy and the statutory objective of providing consent rules that apply consistently in all settings: s. 1(a). [58] The second argument against regarding treatment as including withdrawal of life support is that it could lead todeeply undesirable results.

If consent is required for withdrawal of life support, patients could arguably compel the continuation of anytreatment, regardless of its medical implications. The legislature cannot have intended this.

Common sense suggests that manywithdrawals of treatment — for example, refusal to renew a prescription for a drug that may harm a patient — must be excluded from thedefinition of “treatment” under the Act. [59] The difficulty with this argument is that it treats everything that can be termed a withdrawal of treatment — fromrefusal to refill a prescription to ending life support — as equivalent for purposes of consent under the HCCA.

A more nuanced viewthat withdrawal of treatment may sometimes, although not always, constitute “treatment” better fits the provisions of the HCCA and therealities of medical care. [60] At a minimum, if the processes involved in withdrawal of care are health-related, they do not cease to be treatmentmerely because one labels them cumulatively as “withdrawal of treatment”. This applies to withdrawal of life support, as described inthis case. The reality is that in Mr. Rasouli’s situation, the distinction between “treatment” and “withdrawal of treatment” is impossibleto maintain.

The withdrawal consists of a number of medical interventions, most if not all done for health-related purposes. Viewedglobally, a series of distinct acts may be viewed as “withdrawal” of treatment.

But viewed individually, each act may be seen as having ahealth-related purpose, and hence constitute “treatment” requiring consent. [61] The precise elements of withdrawal of life support will vary from case to case, but the substance of what is beingdone is the same: the provision of life-sustaining treatment is brought to an end and appropriate care is provided to ease suffering andprevent indignity at the end of life.

Typically, the steps taken in withdrawal of life support are either physically required to effect theprocess of dying or directed to minimizing distress and discomfort as the dying process occurs. Providing services to address theseproblems serves health-related purposes within the meaning of s. 2(1) of the HCCA. [62] Many of the acts involved in withdrawal of life support entail physical interference with the patient’s body. Thereality is that while “withdrawal” sounds like purely negative conduct, it typically involves physically touching or performing proceduresupon the patient’s body.

This is borne out by the case law of the Consent and Capacity Board: see E.J.G. (Re), ; G.(Re), ; and also Golubchuk, at para. 23. [63] Under the HCCA, as at common law, physical interference requires consent. The right to be free from unwantedphysical interference goes to the heart of the law of consent to medical treatment. As described by the Ontario Court of Appeal inMalette, at p. 423: The right of a person to control his or her own body is a concept that has long been recognized at common law. The tort of battery hastraditionally protected the interest in bodily security from unwanted physical interference.

Basically, any intentional nonconsensualtouching which is harmful or offensive to a person’s reasonable sense of dignity is actionable. . . . Thus, as a matter of common law, amedical intervention in which a doctor touches the body of a patient would constitute a battery if the patient did not consent to theintervention. [64] Furthermore, withdrawal of life support, on the evidence here, entails the provision of palliative care. The case lawof the Board suggests that this will generally be the case.

Physicians regularly administer palliative care upon the removal of lifesupport: see A.K. (Re), , at p. 21; G. (Re). [65] The Court of Appeal held that withdrawal of life support and the administration of end-of-life palliative care areintegrally linked. It reasoned that removal of mechanical ventilation is a necessary precondition to end-of-life palliative care and end-of-life palliative care is a necessary response to removal of the ventilator.

Since the administration of palliative care clearly requiresconsent, the court concluded that consent should be required for the entire “treatment package”, including the removal of the ventilator(at paras. 50-52). [66] The Court of Appeal’s “treatment package” approach has been criticized on the basis that removal of life support willnot invariably trigger the need for palliative care, and that the administration of palliative care may actually precede the decision toremove life support.

[67] While the Court of Appeal’s assertion that removal of life support will always lead to the administration of end-of-life palliative care may be too broad, the evidence shows that palliative care will be administered in the process of withdrawal of lifesupport in cases like Mr. Rasouli’s. It may be impossible to predict precisely how much distress the patient will suffer in the dyingprocess, and hence what palliative care will be required. But what seems clear is that palliative care will inevitably be administered inOntario hospitals as part of the process of withdrawing life support in cases like Mr.

Rasouli’s. The simple fact is that appropriatemedical care at the end of life, including palliative care, is closely tied to the withdrawal of life support. [68] In

summary, withdrawal of life support aims at the health-related purpose of preventing suffering and indignity atthe end of life, often entails physical interference with the patient’s body, and is closely associated with the provision of palliative care. Withdrawal of life support is inextricably bound up with care that serves health-related purposes and is tied to the objects of the Act. Byremoving medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamentalway.

The physicians’ attempt to exclude withdrawal of life support from the definition of “treatment” under s. 2(1) of the HCCA cannotsucceed. [69] The practice of the Board, although not determinative, reinforces the conclusion that treatment under s. 2(1) includeswithdrawal of life support. Whether implicit or explicit, a specialized tribunal’s

interpretation of its home statute constitutes persuasiveauthority: Sullivan, at p. 621; P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at pp. 584-85. The Board has regularly exercised its jurisdiction in cases where physicians proposed to withdraw lifesupport, consistent with the view that withdrawal of life support constitutes “treatment” under the HCCA: see A.K. (Re); E.J.G. (Re); G.(Re). Courts on review have endorsed this

interpretation: see Scardoni v. Hawryluck (2004), (ON SC), 69 O.R. (3d)700 (S.C.J.). [70] These considerations lead me to conclude that “treatment” in the HCCA should be understood as extending towithdrawal of life support in the situation at issue here and as that process is described in these proceedings. This case does not stand forthe proposition that consent is required under the HCCA for withdrawals of other medical services or in other medical contexts. F.

The Argument That Requiring Consent for Withdrawal of Life Support Will Place Physicians in an Untenable Ethical Situation [71] A final argument raised by the physicians is that they may be placed in an untenable ethical situation if consent isrequired for withdrawal of life support. They could effectively be compelled to continue providing life support, even where theyconsider it to provide no medical benefit to, or even to harm, the patient.

This could place physicians in breach of their legal andprofessional obligations to act in the best interests of the patient. [72] Legally, a physician cannot be faulted for following the direction of the Board, any more than he could be faulted forabiding by a judge’s direction at common law not to withdraw life support. Implicit in the physicians’ request that a judge resolve thepresent dispute is acceptance that if a judge orders that life support cannot be withdrawn, they must comply.

Their legal position underthe HCCA is no different. [73] However, a physician may feel that his legal obligation not to withdraw life support is in tension with hisprofessional or personal ethics. Such tensions are inherent to medical practice. Indeed, the law of consent to medical treatment evolvedthrough cases in which the patient did not wish to be treated, but the physician felt a professional obligation to treat: see Malette, at p.420; Fleming, at pp. 85-86. The law is now clear that treatment cannot be administered without consent, irrespective of the ethicalimperative that physicians may feel.

Similarly, a physician’s duty of care may require that treatment not be withdrawn despite thephysician’s ethical objections to its administration: see R. (Burke) v. General Medical Council, [2005] EWCA Civ 1003, [2005] 3W.L.R. 1132, at para. 34. If the present case were resolved as my colleague Justice Karakatsanis proposes, the physicians may still berequired not to withdraw life support based on their common law or fiduciary duties.

Their ethical position under the HCCA is nodifferent. [74] The HCCA’s scheme for dispute resolution offers several avenues through which a clash with a physician’s ethicalcompunctions may be averted. If the substitute decision-maker refuses consent to withdrawal of life support based on a patient’s priorwish, the physician may seek direction from the Board on whether the wish is applicable to the patient’s current circumstances (s. 35) orrequest permission for the substitute decision-maker to depart from the wish: s. 36.

Where there is no applicable prior wish, thesubstitute decision-maker must act in the best interests of the patient. If the physician feels that the substitute decision-maker has notdone so, he can challenge the decision before the Board: s. 37.

In each of these types of proceedings, the physician’s submissions on thepatient’s condition, the nature of the proposal to withdraw life support, and what will medically benefit the patient will be highly relevantto the Board’s analysis. [75] Wherever one tries to draw the line, it is inevitable that physicians will face ethical conflicts regarding thewithdrawal of life support. No legal principle can avoid every ethical dilemma. What may be needed is a practical solution that enablesphysicians to comply with the law and to satisfy their professional and personal ethics.

In this case, for example, the physicians exploredthe possibility of transferring Mr. Rasouli to a different Toronto hospital. Alternate staffing arrangements within Mr. Rasouli’s presenthospital could also be considered. Finally, other physicians qualified to undertake Mr. Rasouli’s care may not hold an ethical objectionto continuing the administration of life support.

Such practical solutions could go far in averting any ethical conflict. [76] While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion thatwithdrawal of life support constitutes treatment requiring consent under the HCCA. G. Resolving Disagreements Over Withdrawal of Life Support [77] Having rejected the physicians’ arguments, it follows that the consent regime imposed by the HCCA applies in thiscase. I earlier outlined that regime.

At this point, it may be useful to discuss in greater depth the role of the substitute decision-maker,health practitioners and the Board in cases like this.

[78] To recap, the HCCA is a carefully tailored statute. It deals with patients capable of consent and patients who nolonger have the power to consent. It seeks to maintain the value of patient autonomy — the right to decide for oneself — insofar as thisis possible. This is reflected in the consent-based structure of the Act. If the patient is capable, she has the right to consent or refuseconsent to medical treatment: s. 10(1)(a).

If the patient is incapable, the HCCA transfers the right of consent to a substitute decision-maker, often next of kin (s. 10(1)(b)), who is required to act in accordance with the patient’s declared applicable wishes or, failing that,the patient’s best interests: s. 21. Finally, it provides that a physician may challenge a substitute decision-maker’s consent decision byapplication to the Board: ss. 35 to 37. The physician may make submissions to the Board regarding the medical condition and interestsof the patient.

If the Board finds that the substitute decision-maker did not comply with the HCCA, it may overrule the substitutedecision-maker and substitute its own opinion in accordance with the statute: s. 37(3). To be clear, this means that, even in life-endingsituations, the Board may require that consent to withdrawal of life support be granted. [79] Under the HCCA, the substitute decision-maker does not have carte blanche to give or refuse consent. He or shemust comply with the requirements of s. 21 of the Act, which contemplates two situations.

The first is where the substitute decision-maker knows of a prior expressed wish by the patient which is applicable to the circumstances. The second is where there is no suchwish, in which case the substitute decision-maker “shall act in the incapable person’s best interests”.

(1) Prior Expressed Wishes [80] If the substitute decision-maker knows of a prior wish regarding treatment that the patient expressed when capableand over 16 years old, and that is applicable in the circumstances, the wish must be followed: s. 21(1). This reflects the patient’sautonomy interest, insofar as it is possible. [81] While the HCCA gives primacy to the prior wishes of the patient, such wishes are only binding if they are applicableto the patient’s current circumstances. This qualification is no mere technicality.

As the Ontario Court of Appeal held in Conway v.Jacques (2002), (ON CA), 59 O.R. (3d) 737, at para. 31: . . . prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in circumstances. Even wishesexpressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed. [82] Needless to say, where an incapable patient has expressed a prior wish that life support not be withdrawn, theintended meaning and scope of the wish must be carefully considered: see Fleming, at p. 94.

The question is whether, when the wishwas expressed, the patient intended its application in the circumstances that the patient now faces: see Conway, at para. 33; Scardoni, atpara. 74. Changes in the patient’s condition, prognosis, and treatment options may all bear on the applicability of a prior wish: Conway,at paras. 37-38. For example, had Mr. Rasouli expressed a prior wish regarding life support, his substitute decision-maker would have toconsider whether, when the wish was expressed, Mr.

Rasouli intended the wish to apply if he were in a permanent vegetative state, withrecovery extremely improbable according to medical evidence, and facing the health complications associated with long-term provisionof life support. [83] A prior wish need not identify every possible future development in order to be applicable: Scardoni, at para. 74;K.M.S. (Re), (Ont. C.C.B.). However, a wish that is unclear, vague, or lacks precision may be held inapplicable tothe circumstances.

On this basis, the Board has found there were no prior wishes relating to life support applicable to the existingcircumstances in numerous cases: D.D. (Re), ; P. (D.), Re, 2010 CarswellOnt 7848; E.B. (Re), ;G. (Re); E. (Re), ; H.J. (Re), . I have been unable to locate any case in which there was a priorexpressed wish opposing withdrawal of life support that was held to be applicable and therefore binding in the circumstances. [84] If it is unclear whether a prior wish is applicable, the substitute decision-maker or physician may seek directionsfrom the Board: s. 35.

Alternatively, if the substitute decision-maker acts on a prior wish that the physician believes is not applicable,the physician may challenge the consent decision before the Board: s. 37. The physician’s submissions on the patient’s condition,prognosis, and any adverse effects of maintaining life support will be relevant to the Board’s assessment of applicability. [85] In addition, either the substitute decision-maker or physician may apply to the Board for permission to depart fromprior wishes to refuse treatment: s. 36.

The Board may grant permission where it is satisfied that the incapable person, if capable, wouldprobably give consent because of improvement in the likely result of the treatment since the wish was expressed: s. 36(3). [86] I note that the HCCA also provides that the substitute decision-maker is not required to comply with an expressedprior wish if “it is impossible to comply with the wish”: s. 21(1)2. This is not raised on the facts of this appeal, and I consider it nofurther.

(2) The Best Interests of the Patient [87] If the substitute decision-maker is not aware of an expressed prior wish of the patient or if the wish is not applicableto the circumstances, the substitute decision-maker must make her consent decision based on the best interests of the patient, accordingto the criteria set out in s. 21(2). These criteria include the medical implications of treatment for the patient, the patient’s well-being, thepatient’s values, and any prior expressed wishes that were not binding on the substitute decision-maker.

This legislative articulation ofthe best interests of the patient aims at advancing the values that underpin the HCCA: enhancing patient autonomy and ensuringappropriate medical treatment. [88] The substitute decision-maker is not at liberty to ignore any of the factors within the best interests analysis, orsubstitute her own view as to what is in the best interests of the patient. She must take an objective view of the matter, having regard toall the factors set out, and decide accordingly.

This is clear from the mandatory wording of the opening portion of s. 21(2): the decision-maker “shall take into consideration” the listed factors. The need for an objective inquiry based on the listed factors is reinforced by s.37, which allows the decision of the substitute decision-maker to be challenged by the attending physician and set aside by the Board, ifthe decision-maker did not comply with s. 21. The intent of the statute is to obtain a decision that, viewed objectively, is in the bestinterests of the incapable person.

[89] The first consideration under s. 21(2), heavily relied on by Ms. Salasel in this case, concerns the values and beliefs ofthe incapable person. Section 21(2)(

a) provides that the substitute decision-maker must consider the values and beliefs that theincapable person held when capable and that the substitute decision-maker believes that the incapable person would still act on ifcapable. Here, Ms. Salasel argues that sustaining life as long as possible accords with the religious beliefs of Mr. Rasouli, and that as aresult he would not have consented to the removal of life support. [90] The second consideration relates to known wishes of the incapable person that were not binding on the substitutedecision-maker under s. 21(1)1.

For example, wishes expressed when a person was under the age of 16 or when incapable do not bind asubstitute decision-maker, but must be taken into consideration at this stage of the best interests analysis. [91] Third, in addition to considering the values and beliefs of the patient and any relevant wishes, s. 21(2)(

c) requiresthat the substitute decision-maker consider four factors that relate to the impact of the treatment on the patient’s condition, well-being,and health. This stage of the best interests analysis focuses on the medical implications of the proposed treatment for the patient.

Theattending physician’s view of what would medically benefit the patient must be taken into account. [92] The first factor asks whether receiving the treatment is likely to improve the patient’s condition or well-being,prevent deterioration of the person’s condition or well-being, or reduce the extent or rate of the deterioration of the person’s condition orwell-being: s. 21(2)(c)1. In this case, the inquiry must determine whether removing life support would improve, prevent deterioration of,or reduce the extent or rate of deterioration of Mr. Rasouli’s condition or well-being.

The physicians argue that artificially prolongingMr. Rasouli’s life will lead to health complications such as bedsores, respiratory infections, and organ failure — a scenario that can beavoided if life support is removed. On the other hand, Ms. Salasel argues that new evidence and evaluation suggest that Mr.

Rasouli’scondition may improve in the future, militating against removal of life support. [93] The second factor requires the substitute decision-maker to consider whether, in the absence of the proposedtreatment, the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate: s. 21(2)(c)2. In this case,the inquiry is into the likely medical outcomes for Mr. Rasouli if life support is not withdrawn.

The decision-maker must cast her mindinto the future and ask what the patient’s condition will be in one year, five years, or ten years. [94] The third factor requires the substitute decision-maker to consider risks of harm associated with the treatment andweigh whether the benefits from the treatment will outweigh those risks: s. 21(2)(c)3. This factor is particularly important in caseswhere the substitute decision-maker must decide whether to go ahead with a risky procedure, like high-risk surgery, that while offeringsome hope, could worsen the patient’s situation.

In this case, the substitute decision-maker must consider the benefits of removing lifesupport, such as avoidance of protracted physical deterioration from bedsores, infections and organ deterioration ultimately leading todeath, against the risks, which quite plainly are the hastening of death and the loss of whatever chance of recovery Mr. Rasouli hasaccording to medical evidence. [95] The fourth factor requires the substitute decision-maker to consider alternative courses of treatment — whether lessintrusive or restrictive treatment would be as beneficial as the treatment proposed: s. 21(2)(c)4.

In a case such as this, the question iswhether maintaining life support would be less intrusive or restrictive than its withdrawal, and if so, whether maintaining life supportwould be more beneficial to the patient than withdrawal. [96] As I see it, this review of s. 21(2) reveals that although a patient’s beliefs and prior expressed wishes are mandatoryconsiderations, there is no doubt that the medical implications of a proposed treatment will bear significant weight in the analysis. [97] Where physicians and substitute decision-makers disagree about whether withdrawal of life support would be in thebest interests of the patient, the HCCA provides the procedure for resolving this conflict.

Under s. 37, the health care practitioner mayapply to the Board to have the decision of the substitute decision-maker set aside on the ground that it is not in the best interests of theincapable person, having regard to the factors set out in s. 21(2) of the Act. This is an important avenue of recourse for physicians whobelieve that life support can no longer be ethically administered because it is not in the best interests of the patient to do so.

The Boardmust duly consider the physician’s professional opinion and submissions on what would be of medical benefit to the patient. [98] If the Board agrees that the substitute decision-maker did not act in the best interests of the patient, it may substituteits own opinion for that of the substitute decision-maker: s. 37(3). Alternatively, if the Board concludes that the substitute decision-maker did act in the best interests of the patient, it can affirm the decision of the substitute decision-maker.

In making thesedeterminations, the Board must objectively apply the same criteria that substitute decision-makers are required to consider under s. 21. The Board is well placed to make a determination of whether treatment is in the best interests of the patient, in light of the statutoryobjectives of enhancing patient autonomy and

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