52 Alta. L. Rev. 745 (2014-2015)
Cuthbertson v. Rasouli: Continued Confession over Consent-Based Entitlements to Life Support

handle is hein.journals/alblr52 and id is 781 raw text is: 


                           CUTHBERTSON V. RASOULI:
                       ENTITLEMENTS TO LIFE SUPPORT

                                   HILARY YOUNG*

                                   I. INTRODUCTION

   Cuthbertson v. Rasouli' had the potential to be the most significant case on the law of
informed consent since Reibl v. Hughes2 more than thirty years ago. The narrow issue before
the Court was whether informed consent is required for doctors to withdraw life support they
believe no longer to be medically appropriate. However, several broader unresolved
questions about the scope of the law of informed consent were implicated. Could informed
consent be required for treatment contrary to the standard of care? Could it create
entitlements to treatment doctors do not offer to provide? Might the answer depend on the
nature of the treatment (life support versus other treatments)? If the law of informed consent
could create de facto entitlements to treatment, what limits would there be on such
entitlements? To what extent does the law of consent in Ontario's Health Care Consent Ac3
differ from the common law?

   When the Supreme Court of Canada ruled in Rasouli, a majority held that withdrawing
mechanical ventilation, where death is the likely outcome and palliative care drugs will be
administered, is treatment for which consent is required, regardless of the standard of care.
This much is clear. But the decision left many of the questions above unanswered and, it is
argued, answered others in a way that makes it difficult to apply the case's ratio to future
disputes. As a result, there is arguably more uncertainty now than before the case was
decided. For those who were seeking principled guidance, the case is a disappointment.

   The Supreme Court erred in its interpretation of the HCCA. That statute's provisions
regarding informed consent cannot reasonably be interpreted as creating entitlements to life
support contrary to the standard of care. The Court's decision could have significant
implications for resource allocation and for the future of the law of informed consent
generally. The purpose of this comment, however, is not to argue that Rasouli was wrongly
decided.4 Instead, the focus is on uncertainty in the law given the Court's reasoning and on
the implications of that uncertainty.

         Assistant Professor, Faculty of Law, University ofNew Brunswick. The author wishes to thank Bohdana
         Tkachuk for her valuable research assistance. She also wishes to thank the UNB Faculty of Law
         Endowment Trust and UNB's Dean of Law for funding this research.
         Cuthbertson v Rasouli, 2013 SCC 53, [2013] 3 SCR 341 [Rasouli].
    2    [1980] 2 SCR 880 [Reibl].
    3    SO 1996, c 2, Schedule A [HCCA].
    4    For reasons why I conclude Rasouli was wrongly decided, see Hilary Young, Why Withdrawing Life-
         Sustaining Treatment Should Not Require 'Rasouli Consent' (2012) 6:2 McGill JL & Health 54, which
         examines the similar reasoning of the Ontario Court of Appeal.

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