Withdrawal of Treatment against the Consent of Substitute Decision-Makers

The Supreme Court of British Columbia's opinion in Carter v. Canada is a masterful and thorough review of the medicine, law, and ethics of hastened death.  Justice Smith even devotes five paragraphs to the law of medical futility.



VII.  Medical Ethics and Medical End-of-Life Practices . . .

C.  Current State of the Law and Practice in Canada . . .

3.  The Law . . .

d.  Withdrawal of Treatment against the Consent of Substitute Decision Makers



[227] The law makes clear that consent is a sufficient condition for the withdrawal

or withholding of treatment. But is consent also a necessary condition? Whether a

physician or hospital can legally withhold or withdraw potentially life-sustaining

treatment without the consent of either the patient or the patient.s substituted

decision-maker, is currently under much debate.



[228] In some decisions, Canadian courts have held that it is not appropriate for a

court to interfere with medical practitioners acting unilaterally in the best interests of

a patient: for example, Child and Family Services of Manitoba v. R.L. (1997), 154

D.L.R. (4th) 409 (Man. C.A.); and Re: I.H.V. Estate, 2008 ABQB 250.



[229] More commonly, however, courts faced with such issues have concluded that

the law in Canada is not settled: for example, Sawatzky v. Riverview Health Centre

Inc. (1998), 167 D.L.R. (4th) 359 (Man. Q.B.); Jin v. Calgary Health Region, 2007

ABQB 593; Golubchuk v. Salvation Army Grace General Hospital, 2008 MBQB 49;

and Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318.



[230] The question whether a patient.s family can require maintenance of lifesustaining

treatment against medical advice is central in a case to be heard in the

Supreme Court of Canada, Rasouli v. Sunnybrook Health Sciences Centre, 2011

ONCA 482 (leave to appeal to S.C.C. granted, [2011] S.C.C.A. No. 329).



[231] . . . (d) It is unclear whether a patient's substituted decision maker can require

the maintenance of life-sustaining treatment against medical advice.