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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 treatment 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 treatment 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 treatment 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 treatment under the HCCA, this article examines the issue of withholding potentially life-sustaining treatment as it is discussed in the Rasouli decision. We argue that the Chief Justice's decision in Rasouli makes an apparent distinction between withholding treatment and withdrawing treatment such that potentially life-sustaining treatment 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 treatment unilaterally. Furthermore, we argue it is ethically problematic to establish a legal distinction between withholding and withdrawing treatment 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 treatment by physicians, we argue that Colleges of Physicians and Surgeons should provide guidelines that prevent the withholding of life-sustaining treatment 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 treatment 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 treatment that serves a health-related purpose. That is, a proposal to withdraw such care requires the consent of the patient or patient's SDM, and if consent is refused, the matter may be referred to the HCCA's Consent and Capacity Board. (6) On the other hand, Rasouli suggests that a health care practitioner may unilaterally withhold life-sustaining treatment. That is, a decision to withhold such care may not require the consent of the SDM and may not be not subject to review by the Consent and Capacity Board.

The Chief Justice does not devote extensive discussion to the distinction between withholding and withdrawing treatment. The issue appears in four paragraphs in the ruling (paragraphs 34-37). The distinction between withholding and withdrawing emerges in Rasouli because McLachlin C.J.'s judgment applies a different standard of justification for each. When life-sustaining treatment is already being administered, if the care serves a "health related purpose", then that form of care fits the HCCA's definition of "treatment", and withdrawing such care requires consent of the SDM or approval by the Consent and Capacity Board. The withdrawal of care is considered treatment because, among other reasons, the HCCA defines "treatment" broadly to include "... 'anything that is done' for one of the enumerated health-related purposes or other health-related purpose". (7)

In contrast to this broad "health related purpose" standard for requiring SDM consent or Board approval for withdrawal of treatment, "medical benefit" is the standard McLachlin C.J. says is applied when determining "whether a given procedure should be offered to a patient" (8), that is, whether a given procedure can be withheld. According to McLachlin C.J.'s reasoning, "medical benefit" is a narrower standard than "health related purpose". Medical benefit is "a physician-made criterion for treatment". (9) The Chief Justice says "this clinical term [medical benefit] has legal implications for the physician's standard of care". (10) If a treatment could give the patient some medical benefit, then the physician's standard of care requires that such treatment should be offered to the patient. According to the Chief Justice, the decision whether to offer, or to withhold, treatment involves the professional judgment of the physician, who must take into account "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". (11) The SDM would not be involved in making this assessment.

The Chief Justice's interpretation of "medical benefit" as the standard for offering or withholding treatment is supported by the HCCA. The HCCA's requirement for patient or SDM consent does not appear to come into force until a health practitioner "proposes a treatment". (12) Section 10 of the HCCA on consent to treatment reads:

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 decisionmaker has given consent on the person's behalf in accordance with this Act. (13)

In sections 10-14 of the HCCA dealing with consent to treatment, and in the rest of the HCCA, there is no mention of a requirement to obtain consent for withholding treatment. This absence supports a reading of section 10 such that consent is required only after a proposal of treatment. One may infer that prior to the proposal of treatment, the physician may, based on a judgment that the treatment in question offers no medical benefit, decide not to propose the treatment--that is, the physician may withhold the treatment. Since the HCCA consent requirements appear not to apply to decisions that occur prior to proposals of treatment, and the narrow standard of medical benefit applies to offers of treatment, we can infer from Rasouli and the HCCA that this withholding of treatment may be done unilaterally.

McLachlin C.J. discusses the concept of medical benefit while addressing the physicians' argument in Rasouli that Mr. Rasouli's life-sustaining care was not medically beneficial, and therefore did not qualify as "treatment" under the HCCA, and so could be unilaterally withdrawn. Though the Chief Justice rejects this argument for the withdrawal of treatment, she seems to accept this reasoning for judgments made by physicians about whether treatments should be offered to patients and SDMs or withheld. This is to say that McLachlin C.J. does not accept the physician-made "medical benefit" standard for determining when a treatment may be withdrawn, but she does appear to accept this standard for when a treatment may be withheld.

One possible exception to the distinction between withholding and withdrawing life-sustaining treatment in the HCCA can be found in the discussion of plans of treatment. According to the definition of "plan of treatment" in the HCCA, such a plan may "provide for the withholding or withdrawal of treatment in light of the person's current health condition". (14) The HCCA then states that health practitioners "may" obtain "consent or refusal of consent" from an SDM for a plan of treatment. (15) In this instance, withholding and withdrawal of treatment are equivalent. But their equivalence in this instance does not undermine the distinction between withholding and withdrawal found elsewhere in Rasouli. Though an SDM may refuse consent for a plan of treatment that contains a proposal to withhold some form of care, this does not mean that consent must be sought for withholding procedures that fall outside of a plan of treatment as described in the HCCA. The HCCA also does not require that a decision to withhold treatment must be part of a plan of care, or even that physicians must seek consent for plans of treatment, ft only states that physicians "may" obtain consent for such plans. (16)

Though we believe that the comments in Rasouli about the difference between "medical benefit" and "health related purpose" as found in the HCCA support a distinction between withdrawing and withholding treatment, this interpretation is admittedly speculative. In Rasouli the case was only about withdrawing treatment, so the ruling cannot be taken to have clarified the law on withholding treatment as found in the HCCA. If asked to rule on a case involving withholding potentially life sustaining treatment, the court might interpret withholding treatment as falling under the HCCA's definition of "treatment", as was the case for withdrawing treatment in Rasouli. That is, withholding potentially life-sustaining treatment might fall into the category of "anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose". (17) Insofar as withholding treatment involves a decision undertaken for one of the enumerated purposes, such a decision might be included in the HCCA's definition of treatment. Under such an interpretation, a physician who plans to withhold potentially life-sustaining treatment would face all the requirements for withdrawing such treatment as set out in Rasouli. The ethical concerns associated with making a distinction between withdrawing treatment and withholding treatment--as discussed in the following sections of this paper--would not be applicable in such a scenario.

Furthermore, it is difficult to assess whether the reasoning that distinguishes between withdrawing treatment and withholding treatment that we have found in Rasouli could be applied in jurisdictions outside Ontario. The provinces of Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Saskatchewan, and Nunavut and the Northwest Territories have statutes addressing advance directives but do not have legislation similar to the HCCA addressing health care consent in a comprehensive fashion. (18) British Columbia, Prince Edward Island, and Yukon have comprehensive health care consent legislation similar to Ontario. (19) The consent legislation in this latter group of provinces and territories often contains statements that might be interpreted as requiring consent for withholding certain forms of treatment. Under the section on "Consent rights", British Columbia's Health Care (Consent) and Care Facility (Admission) Act states:

4. Every adult who is capable of giving or refusing consent to health care has ...

(e) the right to be involved to the greatest degree possible in all case planning and decision making. (20)

Insofar as decisions to withhold treatment can be considered part of case planning and decision making, this section might require the involvement of capable adults in such decisions. Such involvement could preclude unilateral withholding of treatment by physicians. Similarly, in Prince Edward Island, the Consent to Treatment and Healthcare Directives Act states that patients "capable of giving or refusing consent to treatment" have the right "to be involved to the greatest degree practicable in case planning and decision making". (21) This right might be extended to proxy decision makers by section 24(2) of this Act. The Yukon Adult Protection and Decision Making Act states that anyone "capable of giving or refusing consent to care" has "the right to select a particular form of available care on any grounds, including moral or religious grounds". (22) This right to select available care might inhibit the withholding of treatment without the consent of a capable person. As a comparison, Ontario's HCCA does not have provisions similar to those found in British Columbia, Prince Edward Island, or Yukon legislation that would inhibit the withholding of treatment by physicians without patient or SDM consent.

The Distinction Between Withdrawing and Withholding Treatment at Common Law

In the foregoing section we have argued that the Supreme Court of Canada's Rasouli decision makes a distinction between withdrawing potentially life-sustaining treatment and withholding such treatment in its interpretation of Ontario's HCCA. One of the arguments given in the Rasouli decision in support of the position that the withdrawal of treatment is included in the HCCA definition of "treatment" can also be read as supporting a distinction between withholding and withdrawing life-sustaining treatment at common law. The Chief Justice argues that the withdrawal of life-sustaining treatment falls under the definition of treatment in the HCCA because withdrawing such care typically requires physical interventions of various kinds. As McLachlin C.J. says: "Many of the acts involved in withdrawal of life support entail physical interference with the patient's body. The reality is that while 'withdrawal' sounds like purely negative conduct, it typically involves physically touching or performing procedures upon the patient's body". (23) Extubation, removing a feeding tube, and transitioning a patient to palliative care would all require health practitioners to "interfere" with the patient. She then notes: "Under the HCCA, as at common law, physical interference requires consent". (24)

In contrast, withholding life-sustaining treatment typically is "purely negative conduct". Withholding treatment consists of a decision not to intervene, not to propose a particular intervention, which would avoid the necessity of touching the patient. The physical intervention characteristic of withdrawing care, which makes consent necessary, is not present in withholding care.

An alternative basis for the requirement that physicians obtain consent for treatment lies in the patient's autonomy rights, rather than in the need to avoid unconsented physical interference. (25) One reason for requiring consent for treatment is that doing so respects the patient's capacity for self-determination. The need to respect self-determination might actually support the view that withholding treatment requires consent just as much as withdrawing treatment. The capacity for self-determination is affected when patients are prevented from making either kind of decision. Withholding and withdrawing treatment are equivalent by the lights of this autonomy-based analysis at common law. Nonetheless, one of the two main arguments for requiring consent for treatment at common law--the fact that treatment interferes with the patient's body, and physical interference requires consent --does not apply to withholding life-sustaining treatment. This common law line of reasoning is a second way in which withholding treatment emerges as different from withdrawal of treatment in the Rasouli decision.

One argument that might preclude the unilateral withholding of life-sustaining treatment appeals to the concept of standard of care. If the standard of care requires that health care practitioners seek consent from SDMs about life-sustaining treatments they plan to withhold, then this standard might be in opposition to unilateral withholding. We explore this argument further below. In brief, it might be possible to establish within professional guidelines such as those formulated by provincial Colleges of Physicians and Surgeons that seeking consent by patients or SDMs for withholding life-sustaining care is the required procedure. These professional guidelines could then be an influential factor in the determination of the standard of care. As Bernard Dickens writes in Canadian Health Law and Policy: "An aspect of measuring physicians' compliance with the legally required standard of care is to assess whether treatment conformed to medically approved practice or professionally set guidelines". (26)

Two provincial Colleges of Physicians and Surgeons have guidelines providing direction on withholding and withdrawing treatment at the end of life. These are the College of Physicians and Surgeons of Ontario's Policy Statement #1-06 "Decision-making for the End of Life" and the College of Physicians and Surgeons of Manitoba's Statement No. 1602 "Withholding and Withdrawing Life-Sustaining Treatment". (27) Each of these guidelines is problematic, however. The Ontario College guidelines do not offer a definitive statement about who has the final authority to make a decision to withhold treatment when there is disagreement between a treating physician and an SDM or patient. The guidelines simply recommend referral to the HCCA Consent and Capacity Board to resolve such a dispute. (28) This procedure may be used for resolving disputes about plans to withdraw treatment, as Rasouli has clarified. Yet, as our interpretation of the Rasouli judgment shows, the HCCA does not seem to apply to withholding treatment. The Manitoba College guidelines are problematic because they support unilateral withholding and withdrawal of life-sustaining treatment. (29) In this article below we make recommendations about the details that should be contained in an ethically justified provincial or territorial College of Physician and Surgeons guideline on withholding potentially life-sustaining treatment.

Conceptual and Ethical Problems with Distinguishing between Withdrawing and Withholding Treatment

The inclination to make a distinction between withholding and withdrawing treatment typically arises from a belief that withdrawing life-sustaining treatment is more difficult to justify from an ethical standpoint than simply withholding such treatment. Withdrawing treatment has often been viewed as the positive act of removing treatment, which might be seen as killing, whereas withholding has often been viewed as an omission or letting die. In this way of thinking, killing is worse than letting die. As a result, there is a sense that the positive action of withdrawing a treatment is more consequential than the non-action of withholding treatment altogether.

However, as Beauchamp and Childress point out in their Principles of Biomedical Ethics, "the distinction between withdrawing and withholding treatments is morally irrelevant, and can be dangerous". (30) For one thing, withdrawing treatment may not always be accomplished through a positive act. There are easily conceived scenarios in which a lack of action would constitute a withdrawal of care. For instance, a decision to not refill an IV bag while leaving the IV line in place, or to cease artificial nutrition through a feeding tube while leaving the tube in place, could both be considered withdrawals of life-sustaining care. Such scenarios could be seen as the withdrawal of treatment because treatment has been initiated (i.e. not withheld) through the insertion of an IV line or a feeding tube. These means of withdrawing treatment would not be the usual scenario. As McLachlin C.J. observes, moving a patient from life-sustaining treatment to palliative treatment would typically involve active interference. (31) From a conceptual point of view, however, withdrawing treatment does not necessarily amount to positive action.

Secondly, acts of omission may be no more morally acceptable than acts of commission. For instance, an omission in medical practice leading to death, depending on the circumstances, may be considered negligence. Inaction does not create moral innocence. The distinction between withholding and withdrawing treatment on the grounds that withholding is omitting to act, rather than acting itself, is not morally relevant. As Beauchamp and Childress point out, "both not starting and stopping can be justified, depending on the circumstances". (32) The ethical justification for either withholding or withdrawing life-sustaining treatment does not depend on whether one must act or omit action.

The distinction between withholding and withdrawing can be dangerous because the view that withdrawing life-sustaining treatment is more difficult to justify than withholding such treatment can lead to both overtreatment and undertreatment. (33) If it is easy to initiate treatment, but difficult to cease treatment once underway, patients may be subjected to high levels of invasive medical care they do not wish to continue. For this reason, a patient's autonomous choice to cease life-sustaining treatment must, with few exceptions, be accepted. Ceasing unwanted treatment must be as much within the authority of the patient, or his or her substitute decision maker, as refusing unwanted treatment.

Undertreatment is a likely consequence of establishing a higher threshold of justification for withdrawing life-sustaining treatment than for withholding such treatment. In cases like Rasouli, this kind of undertreatment is a great concern. If withdrawing care is perceived to be more onerous for the health care practitioner than withholding care, the practitioner might be reluctant to initiate life-sustaining treatment even if such treatment could offer the patient some chance of benefit. As was decided in Rasouli, withdrawing treatment under the HCCA without the consent of the patient's SDM requires undergoing a hearing before Ontario's Consent and Capacity Board. In contrast, our interpretation of the HCCA and Rasouli suggests that withholding the same form of treatment would typically be subject only to the physician's judgment about whether the treatment would give the patient medical benefit. In withholding scenarios, SDMs (and patients) may not even be aware that a possible treatment is being withheld. This difference between withdrawing and withholding treatment makes a decision to withhold treatment comparatively easier to enact. If there is a patient being considered for admission to an intensive care unit with health issues that could, in the near future, render a possible treatment ineffective, the physician may decide withholding that treatment is a less cumbersome option than initiating treatment before having to withdraw when the treatment becomes ineffective. The problem with such a decision is that treatments often require a trial period before caregivers are able to judge their effectiveness and evaluate benefits versus burdens of care. (34) A distinction between withholding and withdrawing life-sustaining treatment that is given force in the law could lead to some patients being denied such a trial period.

The unilateral withholding of life-sustaining treatment could be detrimental to the interests of at least two kinds of patients. The first group of patients includes those with various disabilities. For people with disabilities, it is a very troubling prospect if physicians are recognized to have unilateral authority to withhold life-sustaining treatment. For example, the Manitoba League of Persons with Disabilities has been highly critical of the Manitoba College guidelines that permit unilateral withholding (and withdrawal) of potentially life-sustaining treatment. (35) There is evidence to suggest that to withhold and withdraw treatment in cases they believe to be futile. In Werth's analysis of empirical studies on judgments of futility and withholding and withdrawal of treatment, he says "it appears that a significant percentage of people who have life-sustaining treatment withheld or withdrawn as a result of a physician's determination of futility may be persons with disabilities or non-White individuals". (43)

Addressing the Problem

The problem we have identified is that the judgment in Rasouli appears to support a distinction between withholding life-sustaining treatment and withdrawing life-sustaining treatment, such that a health care practitioner may unilaterally withhold treatment. We have described the ethical difficulties that can arise when physicians have the authority to unilaterally withhold life-sustaining treatment. These problems could occur when physicians judge that it would be futile to initiate life-sustaining treatment. There are different meanings of the concept "futility". According to Beauchamp and Childress, all of the following have been described as "futile":

(1) whatever physicians cannot perform;

(2) whatever will not produce physiological effect;

(3) whatever is highly unlikely to be efficacious (i.e., statistically, the odds of success are exceedingly small);

(4) whatever probably will produce only a low-grade, insignificant outcome (i.e., qualitatively, the results are expected to be exceedingly poor);

(5) whatever is highly likely to be more burdensome than beneficial;

(6) whatever is completely speculative because it is an untried "treatment"; and

(7) whatever--in balancing effectiveness, potential benefit, and potential burden--warrants withdrawing or withholding treatment. (44)

Because of the range and variety of clinical scenarios that have been described as futile, the term is imprecise. Beauchamp and Childress recommend "we should generally avoid the term futility in favor of more precise language". (45) The vagueness of the term "futile" is problematic from the point of view of ethics because it is often used in a way that involves value judgments about whether a given treatment is worth undertaking, rather than just in objective clinical judgments about whether a given treatment will work, in Beauchamp and Childress's list, numbers four, five, and seven in particular are conceptions of futility that may contain value judgments. In such scenarios, physicians may decide that treatment is not worth doing because of judgments about the quality of life the patient will likely experience afterward, the burdens involved in the treatment, or the balance between potential benefits and potential burdens. These are value judgments because patients or SDMs might disagree with physicians about whether the likely outcome offers a high enough quality of life, or about the relative weighing of benefits and burdens of treatment. Because of the way the term "futile" can mask value judgments, we eschew the use of this term for the rest of the discussion, and instead make a distinction between (a) decisions to withhold treatments that will cause no physiological benefit, versus (b) decisions to withhold treatments based on value judgments that the treatment is not worth doing. (46)

The solution to the ethical problem of unilateral withholding of life-sustaining treatment is to manage withholding in a way similar to the way in which withdrawing life-sustaining treatment should be managed, as decided by Rasouli. The solution is to recognize the equivalency of withholding and withdrawing life-sustaining care, and establish in the law that health care practitioners cannot do either unilaterally. Just as Rasouli's interpretation of the HCCA requires that physicians planning to withdraw treatment must first seek the consent of the SDM, and then refer the issue to the Consent and Capacity Board as a means of conflict resolution if consent is not given, we would recommend a similar process of seeking consent and conflict resolution for plans to withhold potentially life-sustaining treatment.

As we have mentioned above, one possible way the ethical norm of preventing the unilateral withholding of potentially life-sustaining treatment can be established in the law is through the formulation of guidelines by provincial Colleges of Physicians and Surgeons that could influence the legal determination of the standard of care for withholding this kind of treatment. We will now sketch out some details that these College guidelines should contain. In this effort we take the lead from some elements in a 2008 article by Jocelyn Downie and Karen McEwen that maps out a model guideline on withholding and withdrawal of care at the end of life. (47) We have also found some elements of the Ontario College guidelines on "Decision-making for the End of Life" to be helpful. (48) Both these sources discuss withholding and withdrawing together, and do not make a distinction between the two. Since the focus of this paper is the problematic status of withholding treatment in Rasouli, our sketch of details that should be found in College guidelines focuses on withholding, though it would make sense for such guidelines to treat withholding and withdrawing as effectively equivalent from the standpoint of ethics.

Details that should be Found in College Guidelines

In cases in which a physician plans to withhold potentially life-sustaining treatment for reasons that involve a value judgment of some kind, as opposed to reasons based on a clinical judgment that the treatment in question will have no physiological effect, the physician should seek the consent of the patient or SDM when the patient lacks capacity. Downie and McEwen provide for two exceptions to this rule in such scenarios, which we endorse. First, they argue that treatment may be withheld (or withdrawn) without patient or SDM consent when there is a "written, explicit, and publicly available institutional resource allocation policy" (49) that permits withholding treatment without consent in this instance. It is necessary to provide a means for institutions to allocate scarce resources fairly. In some situations, the interests of the public and the common good trump the interests of individual patients who lay claim to health care resources. For example, it may be harmful to the interests of a community if all or most of the beds in a hospital's intensive care unit are taken up by long-term ventilated patients who have little chance of leaving the unit. A high population of such patients in intensive care may prevent health care personnel from being able to offer intensive care in situations in which many patients require admission at the same time--for example, during an infectious disease outbreak or mass casualty event--or simply to individual patients who need intensive care for emergency reasons. (50) In situations of scarcity, frontline personnel should not be required to make allocation decisions on an ad hoc or unprincipled basis. Health care institutions must therefore formulate fair and ethically principled policies that take community interests into account. We would only disagree with Downie and McEwen's provision by recommending that physicians explore possible transfer options for patients whose life-sustaining treatment may be withheld on resource allocation grounds. The needed resources may not be scarce at nearby institutions.

Second, Downie and McEwen state that SDM consent may be overridden in decisions to withhold treatment when "the physician has sought and been given authorization by a court". (51) A court may support such a decision when the SDM is not making decisions in accordance with the patient's previously-expressed wishes, or when the patient's wishes are not known, and the SDM is making a best-interests judgment that is not actually in the patient's best interests. This provision places the onus on the physician for seeking court authorization, rather than placing the onus on the SDM, as some policies and authors recommend. (52) The onus should not be placed on SDMs, who are likely to be in a far weaker position, financially, emotionally, and organizationally, than physicians or health care institutions. (53)

The Ontario College guidelines on end-of-life care recommend that the physician should seek consensus with the SDM on decisions to withhold and withdraw treatment. (54) We agree. If there is not consensus initially, that is, if the SDM does not consent to the physician's plan to withhold treatment, then the physician should pursue conflict management services within his or her institution. Downie and McEwen suggest a role for "externally facilitated" discussion. (55) The Ontario College guidelines suggest accessing "any mediation, arbitration or adjudication processes available within the facility". (56) A further option when disagreement persists is for the physician to transfer the patient to another facility or health practitioner that is able and willing to provide the treatment in question. (57)

When a physician has plans to withhold treatment for reasons that involve a value judgment, an institutional resource allocation policy does not apply, there is no court authorization to withhold treatment, there is no transfer opportunity available, mediation processes have failed, and the SDM does not consent to withholding the treatment in question, then the physician must provide the treatment. (58) The argument for this position has two parts. First, physicians are not moral authorities, so values-based decisions by physicians to withhold potentially life-sustaining treatment are not authoritative. We cannot empower physicians to make unilateral decisions to withhold treatments based on value judgments. Second, the situations in which physicians have the strongest claim to withholding treatment without patient or SDM consent at the end of life--resource scarcity, and misrepresentation of a patient's wishes or interests by an SDM--are accounted for as exceptions to the rule prohibiting withholding of treatment without consent by the patient or SDM.

In cases in which a physician plans to withhold a treatment at the end of life because of a clinical judgment that the treatment in question offers no physiological benefit, this treatment may be withheld without the consent of the patient or SDM and without mediation by a conflict resolution process. Downie and McEwen give the example of cardiopulmonary resuscitation (CPR) or advanced cardiac life support (ACLS) in cases in which these treatments will not be successful in returning circulation. (59) They argue that when there is not enough time for physicians to pursue SDM consent or conflict resolution because of an unexpected cardiac event, and CPR/ALCS will not work, then these treatments can be withheld. Another kind of scenario is when an SDM requests morphine for a patient who has brain damage that prevents pain receptivity. Physicians may withhold such treatment without consent because it will not have any physiological benefit. The principle that treatment offering no physiological benefit may be withheld without consent has wide support among ethicists. Beauchamp and Childress write that "pointless or futile treatment--one that has no chance of being efficacious --is morally optional and in many cases ought not be used". (60) In The Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life, Berlinger, Jennings and Wolf write: "There is no ethical obligation to offer a patient treatment options that have no possibility to provide physiological benefit relative to the patient's diagnosis, prognosis, and current medical condition". (61)

Conclusion

In this paper we have examined the Rasouli case and an ethical difficulty it presents. The Rasouli ruling at the Supreme Court of Canada provides an answer to the question of a physician's authority under the HCCA to unilaterally withdraw potentially life-sustaining treatment. However, the question of a physician's authority to unilaterally withhold the same treatment emerges from the Rasouli decision. We show that it can become ethically problematic to make a distinction between withholding treatment and withdrawing treatment. Using the examples of patients with disabilities and patients with religious and cultural beliefs that support aggressive treatment, we show how unilateral withholding of treatment could have detrimental consequences. To solve the issue of unilateral withholding of potentially life sustaining treatment, we argue the distinction between withholding and withdrawing treatment should be avoided. Colleges of Physicians and Surgeons should provide ethically appropriate guidelines on withholding and withdrawing practices which could translate into ethically appropriate standards of care recognized by the courts. We have outlined some details that should be included in these guidelines in order to meet this ethical standard.

(1) Cuthbertson v Rasouli, 2013 SCC 53 [Rasouli].

(2) Health Care Consent Act, 1996, SO 1996, c 2, Sch A [HCCA].

(3) Supra note 1 at para 33.

(4) Ibid at para 3.

(5) Ibid at paras 45-70.

(6) Ibid at paras 118-119.

(7) Ibid at para 46.

(8) Ibid at para 36.

(9) Ibid at para 35.

(10) Ibid at para 36.

(11) Ibid at para 36.

(12) Supra note 2 at s 10(1).

(13) Ibid at s 10.

(14) Ibid at s 2(1).

(15) Ibid, at sec. 13(c) (ii).

(16) Ibid. Though of course physicians must be given consent for anything within a plan of treatment that qualifies as "treatment".

(17) Supra note 2 at sec. 2(1).

(18) For a list of all provincial/territorial health care consent legislation, see Patricia Peppin, "Informed Consent" in Jocelyn Downie, Timothy Caulfield & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Markham: LexisNexis, 2011) 115 at 188-189 [Peppin], Alberta: Personal Directives Act, RSA 2000, c P-6. Manitoba: Health Care Directives Act, CCSM 1992, c H27. New Brunswick: Infirm Persons Act, RSNB 1973, c 1-8; Mental Health Act, RSNB 1973, c M-10. Newfoundland and Labrador: Advance Health Care Directives Act, SNL 1995, c A-4.1. Northwest Territories: Personal Directives Act, SNWT 2005, c 16. Nova Scotia: Personal Directives Act, SNS 2008, c 8; Hospitals Act, RSNS 1989, c 208; Involuntary Psychiatric Treatment Act, SNS 2005, c 42. Nunavut: Powers of Attorney Act, SNu 2005, c 9. Saskatchewan: Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3; Health Care Directives and Substitute Health Care Decision Makers Act, SS 1997, c H-0.001.

(19) See Peppin, ibid. British Columbia: Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181. Prince Edward Island: Consent to Treatment and Health Care Directives Act, RSPEI 1988, c C-17.2. Yukon: Adult Protection and Decision Making Act, SY 2003, c 21, Sched A; Care Consent Act, SY 2003, c 21, Sched B; Public Guardian and Trustee Act, SY 2003, c 21, Sched C.

(20) Supra note 19 at s 4(e).

(21) Supra note 19 at s 4(d).

(22) Supra note 19 at s 3(b).

(23) Supra note 1 at para 62.

(24) Ibid at para 63.

(25) Malette v Shulman (1990), 72 OR (2d) 417; Fleming v Reid (1991), 4 OR (3d) 74.

(26) Bernard Dickens, "Medical Negligence" in Jocelyn Downie, Timothy Caulfield & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Markham: LexisNexis, 2011) 115 at 127.

(27) College of Physicians and Surgeons of Ontario, "Policy Statement #1-06 Decision Making for the End of Life" (July 2006), online: College of Physicians and Surgeons of Ontario <http://www.cpso.on.ca/CPSO/media/uploadedfiles/ policies/policies/policyitems/End-of-Life.pdf?ext=.pdf>, ["CPSO"]. College of Physicians and Surgeons of Manitoba, "Statement No. 1602 Withholding and Withdrawing Life-Sustaining Treatment", online: College of Physicians and Surgeons of Manitoba <http://cpsm.mb.ca/cjj39alckF30a/wp-content/uploads/ st1602.pdf> ["CPSM"].

(28) CPSO, ibid at 7.

(29) Jocelyn Downie & Karen McEwen, "The Manitoba College of Physicians and Surgeons Position Statement on Withholding and Withdrawal of Life-Sustaining Treatment (2008): Three Problems and a Solution" (2009) 17 Health Law Journal 115 [Downie & McEwen]. Manitoba League of Persons with Disabilities, "Letter to the College of Physicians and Surgeons of Manitoba", online: Manitoba League of Persons With Disabilities <http://www.mlpd.mb.ca/publications.html>.

(30) Tom L Beauchamp and James F Childress, Principles of Biomedical Ethics, 6th ed (New York: Oxford University Press, 2008) at 156.

(31) Supra note 1 at para 62.

(32) Supra note 30 at 157.

(33) Ibid.

(34) Ibid at 157-8.

(35) Manitoba League of Persons with Disabilities, supra note 29.

(36) Gary L Albrecht & Patrick J Devlieger, "The Disability Paradox: High Quality of Life Against All Odds" (1999) 48 Social Science and Medicine 977.

(37) Ibid.

(38) Ibid. See also Carol J Gill, "Health Professionals, Disability, and Assisted Suicide: An Examination of Relevant Empirical Evidence and Reply to Batavia" (2000) 6 Psychology, Public Policy, and Law 526.

(39) Gill, ibid. James L Werth, "Concerns about Decisions Related to Withholding/ Withdrawing Life-Sustaining Treatment and Futility for Persons with Disabilities" (2005) 16 Journal of Disability Policy Studies 31.

(40) Mildred Z Solomon, "How Physicians Talk about Futility: Making Words Mean too Many Things" (1993) 21 Journal of Law, Medicine and Ethics 231.

(41) Supra note 1 at para 7.

(42) Werth, supra note 39 at 35.

(43) Ibid.

(44) Supra note 30 at 167.

(45) Ibid.

(46) Francoise Baylis, "The Multiple Meanings of Futility" Impact Ethics (28 October 2013), online: Impact Ethics <http://impactethics.ca/2013/10/28/the-multipIemeanings-of-futility/>. Nancy Berlinger, Bruce Jennings & Susan M Wolf, The Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life, 2nd ed. (New York: Oxford University Press, 2013) at 57-58. Downie & McEwen, supra note 29 at 135.

(47) Downie & McEwen, supra note 29.

(48) CPSO, supra note 27.

(49) Downie & McEwen, supra note 29 at 134.

(50) Andrea Frolic, Anna Kata & Peter Krauss, "Development of a Critical Care Triage Protocol for Pandemic Influenza: Integrating Ethics, Evidence and Effectiveness" (2009) 12 Healthcare Quarterly 54. Chris Kaposy, "Accounting for Vulnerability to Illness and Social Disadvantage in Pandemic Critical Care Triage" (2010) 21 Journal of Clinical Ethics 23.

(51) Downie & McEwen, supra note 29 at 134.

(52) CPSM, supra note 20. Arthur Schafer, "Right-to-Die Ruling: Win for Families, Loss for Common Decency" Impact Ethics (22 October 2013), online: Impact Ethics <http://impactethics.ca/2013/10/22/right-to-die-ruling-win-forfamilies-loss-for-common-decency/>.

(53) Supra note 1 at para 114. Jocelyn Downie, "A Win for Those who Care for and About the Critically 111 in Canada" Impact Ethics (23 October 2013), online: Impact Ethics <http://impactethics.ca/2013/10/23/a-win-for-those-who-carefor-and-about-the-critically-ill-in-canada/>.

(54) CPSO, supra note 27 at 5.

(55) Downie & McEwen supra note 29 at p133.

(56) CPSO, supra note 27 at 7.

(57) Ibid. Downie & McEwen, supra note 29 at 134.

(58) Downie & McEwen, supra note 29 at 134. The Ontario College guidelines do not state this explicitly, which is a deficiency. As we have noted above, the last step in the process described in the Ontario College guidelines appears to be referral to the Consent and Capacity Board. But, as we have argued, the HCCA may not apply in cases of withholding (as opposed to withdrawing).

(59) Downie & McEwen, supra note 29 at 135.

(60) Supra note 30 at 168.

(61) Berlinger, Jennings & Wolf, supra note 46 at 57.

Chris Kaposy, Philmona Kebedom, Dylan Roskams-Edris and Meg Ryan *

* Chris Kaposy is Assistant Professor of Health Care Ethics, Memorial University, St. John's, Newfoundland and Labrador. Philmona Kebedom, Dylan Roskams-Edris and Meg Ryan are Master of Health Ethics students at Memorial University. The authors thank the peer reviewer for helpful comments on this article.
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Title Annotation:end-of-life in Cutherbertson v. Rasouli; Canada
Author:Kaposy, Chris; Kebedom, Philmona; Roskams-Edris, Dylan; Ryan, Meg
Publication:Health Law Journal
Date:Jan 1, 2014
Words:6879
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