UK Court of Protection vs. Ontario CCB - NHS Trust v. VT

The recent case of NHS Trust v. VT illustrates a key difference between the UK Court of Protection and the Ontario Consent and Capacity Board when it comes to the resolution of medical futility disputes.



Prognosis for VT



For 10 years, VT had endured the after-effects of a stroke as well as diabetes, hypertension and kidney disease. Then, in May 2013, VT suffered a cardiac arrest. Three specialists concluded that VT had sustained a very severe brain injury and had no prospect of any meaningful recovery.  (Guardian;  Telegraph)



Clinicians' Proposed Plan



An NHS Trust brought an application to the COP that it was not in VT's best interests for him to be given intensive resuscitation or be admitted to intensive care if his condition deteriorated.



Family's Opposition to Proposed Plan



But VT was an elderly devout Muslim.  His family argued that he would regard his suffering as bringing him closer to God.



Court Ruling



Mr. Justice Hayden, at the Court of Protection said the Trust could withhold treatment. To prolong life in VT's case would "effectively be restarting a life which has stopped."



Comparison to Ontario CCB



In light of the Supreme Court of Canada's decision in Rasouli, the only resolution for such a case in Ontario would be an application to the CCB  But if the family could actually establish the patient's Muslim faith and goals (and the UK judge found it would be quite extraordinary if his family were misrepresenting the father's view), it is very unlikely that the CCB would be able to overrule the family's direction to continue ICU treatment.  The Ontario HCCA provides that SDMs must "give or refuse consent in accordance with . . . a wish applicable to the circumstances that the incapable person expressed while capable . . . ."  



Takeaway / Upshot 



In short, religion can trump best interests in Ontario.  Best interests can trump religion in the UK.