The Supreme Court of Canada ruled in October 2013 that physicians who recommend withdrawing life support over the wishes of substitute decision-makers must apply to Ontario's Consent and Capacity Board, "regardless of whether they feel ongoing treatment falls within the medical standard of care."
This ruling will most likely have implications across the country.
"First, the ruling will likely affect standard of medical care and practice well beyond Ontario. Second, there are potentially substantial resource implications for Ontario now that the Supreme Court's decision has given the Consent and Capacity Board a larger role to play in end-of-life decision-making," writes Robert Sibbald, London Health Sciences Centre, and adjunct professor, Faculty of Medicine, Western University, London, Ontario, with coauthors.
Hassan Rasouli has been on life support since 2010. After months of no improvement after a medical procedure, his doctors felt that mechanical ventilation was no longer medically indicated and would not therefore be "offered," which meant that consent of the family was not required. The family challenged the decision in court; the Supreme Court's decision was the last in a series of appeals.
"Ontario's Consent and Capacity Board is a quasijudicial tribunal that does not benefit from expertise in critical care medicine. Yet it is now the first line of legal adjudication in the province in one of the most complex fields of medicine," the authors write. "An interesting potential outcome is that if the Consent and Capacity Board determines that ongoing ventilation is in the best interestsof the patient, then the Board will essentially have the power to mould a medical standard of care contrary to the professional opinion regarding benefit."
The Consent and Capacity Board, although useful in some cases, should have no role in questioning the judgment of trained, experienced physicians about whether a medical treatment is beyond the standard of care.