Legal and regulatory proceedings
Update on law for withdrawing treatment
Originally published March 2014
The recent Supreme Court of Canada decision in the case of Cuthbertson v. Rasouli1 clarifies the law in Ontario on whether physicians need consent to withdraw life-sustaining treatment that they believe has no medical benefit for a patient.
The Court's decision confirmed that under Ontario's consent and capacity legislation, physicians must obtain consent before life support can be withdrawn.
The decision depended on how the Court interpreted legislation that is specific to Ontario. In jurisdictions that have legislation or that enact legislation comparable to Ontario's, the decision applies. Currently, only one other jurisdiction, the Yukon, has similar legislation.
In jurisdictions that do not have legislation comparable to Ontario's, the effect of the decision is uncertain. Physicians in these jurisdictions are encouraged to continue to attempt to reach an appropriate consensus with the substitute decision-maker(s) through communication and dispute resolution mechanisms, such as those established within healthcare facilities. If consensus cannot be reached, the physician or the healthcare facility may need to initiate a court application or seek intervention from the local public guardian's office.
In making its decision on the Rasouli case, the Court also clarified that when the patient's substitute decision-maker and physician(s) disagree on whether to discontinue life support, the steps set out in the consent and capacity legislation must be followed:
- The physician must determine whether continuing life support is medically indicated for the patient.
- If life support is not medically indicated, the physician must advise the patient's substitute decision-maker and ask for consent to withdraw the support.
- The substitute decision-maker will either give or refuse consent, in accordance with the patient's prior expressed wishes or best interests, as appropriate.
- If consent is provided, the physician may withdraw life support.
- If consent is not given, the physician may challenge the decision by applying to the Consent and Capacity Board.
- If the board finds that the substitute decision-maker's refusal to provide consent was not in accordance with the requirements of the legislation (i.e. prior expressed wishes or best interests), it may substitute its decision for that of the substitute decision-maker, and permit the withdrawal of life support.
The CMPA will continue to closely monitor the situation with end-of-life care and will update members of any important changes. In the meantime, members are encouraged to contact the CMPA for specific advice when there is disagreement with a patient, family member, or substitute decision-maker on the recommended treatment decisions for end-of-life care.
"Providing quality end-of-life care," provides more information on end-of-life care including do-not-resuscitate orders, withdrawing medical treatment, and advance directives.