Supreme Court Should Rule in Rasouli Case

In Wednesday's Globe & Mail, Law professor Hilary Young rightly calls on the Supreme Court of Canada to decide the Rasouli case even if, because of the patient's cognitive improvement, the case has become moot.  She writes that "given the importance of the issues at stake and the uncertainty in the law, the Supreme Court should take this opportunity to clarify the law."



I agree.  This was a key point of a recent JAMA article that I published with critical care physician Doug White.  Two of the reasons that we called on courts to resolve these cases are:



(1) To Shine a Spotlight on an Unresolved Social Issue. Because the public debate on futility has largely stagnated without achieving satisfactory clarity for patients and physicians, renewed public debate may be an important step toward better policy.



(2) To Cast a Shadow that Allows Extrajudicial Solutions.  Because less than 6% of all serious lawsuits are tried, the most important thing that Courts do is to cast a shadow of legal rules within which litigants can craft their own custom-made settlements.”  Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791 (W.Va.,1986).



Some may argue that state legislatures are better positioned (than courts) to deliberate about how to balance the competing interests at stake in such cases.  Indeed it is true that legislatures can conduct more extensive, resource-intensive hearings.  But the lack of legislative movement on this topic suggests that the futility debate is “too hot” for the political branch of government, especially in the wake of the highly-charged public rhetoric regarding “death panels”.  A Pennsylvania court hearing a right-to-die case summarized this sentiment as follows:  “Legislatures are often slow to act, and where the legislature has failed to act, the Courts must respond to protect individual rights.”  In re Jane Doe, 45 Pa. D. & C.3d 371 (1987).