End-of-life disputes that pit physicians against families, or family members against each other, are becoming a hardy perennial of our courts.
Last month, the Supreme Court of Canada refused to allow doctors to end life-support for a severely brain-damaged Toronto man without the consent of his wife or, failing her consent, the approval of a tribunal created to adjudicate whether treatment should be ordered or continued.
Hassan Rasouli has been kept alive on a ventilator and feeding tube since brain surgery went wrong in 2010. Doctors at a Toronto hospital determined he has no hope of recovery, and that life-support was resulting in progressively worse complications.
His wife refused consent to end life-support, believing his brain-damaged movements signalled some consciousness.
The case landed in the Supreme Court due to a dispute over whether, under Ontario's Health Care Consent Act, withdrawal of life-support constitutes "treatment" and therefore whether the doctors required the wife's or tribunal's approval.
Manitoba has no comparable legislation or tribunal. However, Manitoba's College of Physicians and Surgeons has a protocol to guide physicians in similar disputes.
The protocol allows for a second medical opinion where the original physician determines life-sustaining treatment should cease. It provides for four days' notice to a family before life-support is withdrawn, so that family members may resort to the courts if they disagree with the physician's decision.
The three years of appeals that took Mr. Rasouli's situation might have been avoided were his wishes known. Chief Justice Beverly McLachlin, in the court's majority decision, pointedly noted Mr. Rasouli left no directions about what treatment he wanted if reduced to a vegetative state.
If he'd left a record about end-of-life treatment, that may well have been determinative, she implied.What's popularly called a "living will," but is properly a health-care directive or power of attorney for personal care, is now permitted by law in all provinces, except Quebec.
Provincial laws authorize giving binding directions about use or non-use of life-prolonging procedures, prior to illness or injury, and mental incapacity.
Knowing the patient's wishes is critical to avoid, resolve, or fairly adjudicate a dispute about withdrawing life-sustaining treatment.
In the last two decades, laws sanctioning instructions on terminal care and "heroic measures" to prolong life have spread across the country. Canadians who want their end-of-life medical-treatment wishes honoured would do well to avail themselves of that right.