





CITATION: Rasouli v. Sunnybrook Health Sciences
      Centre, 2011 ONCA 482

DATE:  20110629


DOCKET: C53442


COURT OF APPEAL FOR ONTARIO


Doherty, Moldaver and Simmons JJ.A.


BETWEEN


Hassan
          Rasouli, by his litigation guardian

and substitute decision maker,
          Parichehr Salasel


Applicant (Respondent)


and


Sunnybrook
          Health Sciences Centre,

Dr. Brian Cuthbertson
and
Dr. Gordon Rubenfeld


Respondents (Appellants)

AND BETWEEN

Dr. Brian
          Cuthbertson and Dr. Gordon Rubenfeld

Applicants (Appellants)

and

Hassan
          Rasouli, by his litigation guardian and substitute decision maker,

Parichehr Salasel

Respondents (Respondents)


Harry Underwood and Andrew
          McCutcheon for the appellants, Dr. Cuthbertson and Dr. Rubenfeld

J. Gardner Hodder and Guillermo Schible, for the respondent
          Hassan Rasouli

Hugh Scher and Mark Handelman, for the intervener the
          Euthanasia Prevention Coalition


On appeal from the orders of Justice Susan Himel of the
          Superior Court of Justice dated March 9, 2011.


Heard: May 18, 2011


Moldaver and Simmons JJ.A.:

[1]

Parichehr Salasel is the wife of the respondent, Hassan Rasouli. She
    is also his litigation guardian and substitute decision-maker under the
Health
    Care Consent Act
,
1996
, S.O. 1996, c. 2, Sch. A (the Act).
[2]

The respondent is hospitalized at the Sunnybrook Health Sciences
    Centre. He has been there since October 7, 2010, when he underwent surgery to
    remove a benign brain tumour. Unfortunately, post-operative complications
    occurred and the respondent developed bacterial meningitis. The infection
    spread throughout his brain leaving him with severe and diffuse brain damage.
[3]

On October 16, 2010, the respondent was placed on a mechanical
    ventilator. He is receiving artificial nutrition and hydration through a tube
    inserted into his stomach. These life-sustaining measures are keeping him alive
    and he may survive for some months if they are continued. Without them, it is
    expected that he will soon stop breathing and die.
[4]

Doctors Cuthbertson and Rubenfeld are the appellants in this matter.
    They are the doctors responsible for the respondents treatment and care. They,
    and many other doctors who have examined the respondent
[1]
,
    have concluded that he is in a permanent vegetative state which, in medical
    terms, means that he will never again regain consciousness. His case, they
    believe, is hopeless. Inquiries to have another hospital take up his care
    proved unsuccessful.  All appropriate treatments have been exhausted, there is
    no realistic hope of medical recovery, and the respondent is not receiving any
    medical benefit from being kept on life support. In these circumstances, the
    appellants believe it is in the respondents best interests that he be taken
    off life support and provided with palliative care until he dies. They have
    proposed that course of action to Ms. Salasel.
[5]

The appellants acknowledge that they need Ms. Salasels consent, in
    her capacity as substitute decision-maker for her husband, to administer palliative
    care to him. They maintain, however, that they do not need her consent to
    withdraw the life-sustaining measures as those measures have spent their course
    and are no longer medically indicated.
[6]

Ms. Salasel sees the matter differently. She believes that where
    there is life, there is hope and she and her family wish to have the respondent
    kept alive. They do not accept that he is in a state of permanent and
    irreversible unconsciousness. On the contrary, according to her and her
    children, the respondent has reacted on occasion to their voices and continues
    to do so. Although he may be minimally conscious, they believe that he remains
    aware of his surroundings. Hence, Ms. Salasel opposes the course of action
    proposed by the appellants. She maintains that they require her consent to
    remove the respondent from life support and place him on palliative care. And
    if they are not prepared to abide by her wishes, they should apply under the Act
    to the Consent and Capacity Board (the Board) and let the Board decide
    whether the proposed course of action is in the respondents best interests.
[7]

In the face of this impasse, the parties turned to the court for
    assistance. On behalf of the respondent, Ms. Salasel applied to the Superior
    Court of Justice for various forms of relief, including:


(1)

An order restraining the appellants from implementing the
        proposed changes to the respondents current treatment plan without first
        obtaining her consent; and

(2)

An order requiring the appellants to refer their treatment
        proposal to the Board should they persist in challenging Ms. Salasels
        authority to reject it on the respondents behalf as being contrary to his best
        interests.


[8]

For their part, the appellants cross-applied to the court for
    various forms of relief, including:


(1)

A declaration that the
        respondent is in a permanent vegetative state;

(2)

A declaration that they can lawfully withdraw and/or withhold
        the life-sustaining treatment the respondent is presently receiving and provide
        him instead with palliative care;

(3)

A declaration that they do not need Ms. Salasels consent,
        either at common law or under the Act, to proceed with the treatment plan they
        have proposed; and

(4)

A declaration that the Board has no jurisdiction to decide
        whether they can proceed with their proposed treatment plan.


[9]

The application and cross-application were argued before Himel J.
    for three days in February and March 2011. On March 9, 2011, the learned
    application judge released her reasons for decision. In the result, she found
    in favour of the respondent and against the appellants.
[10]

The application judge dealt with Ms. Salasels application and the appellants
    cross-application in two separate orders. For present purposes, the key
    provisions of both orders are the same and read as follows:
1.

THIS COURT ORDERS THAT the proposal of the respondent physicians [the
    appellants] to end life sustaining treatment to the applicant [the respondent]
    must be referred to the Consent and Capacity Board.
2.

THIS COURT ORDERS THAT pending the decision of the Consent and Capacity
    Board, the respondent physicians are not permitted to withdraw mechanical
    ventilation and transfer the applicant to palliative care.
Issues Raised by the Appellants
[11]

The appellants appeal from those orders. They submit that
    the decision under review sets a dangerous precedent because it requires them
    to obtain the consent of patients before withholding or withdrawing treatment
    that they consider to be of no medical value. This, they say, has the effect of
    standing the doctor/patient relationship on its head. Manifestly, patients have
    the right to refuse treatment.  They do not, however, have the right to insist
    on treatment that their doctor regards as medically ineffective or
    inappropriate.
[12]

In advancing their position, the appellants do not
    suggest that doctors can withhold or withdraw treatment as they see fit, with no
    risk of legal consequences. On the contrary, doctors must act in their patients
    best interests and if it is found that their decision to withhold or withdraw
    treatment falls below the requisite standard of care, they can be held
    accountable.  But that is a far cry from saying that a doctor must provide
    treatment to his or her patient that the doctor believes is medically ineffective
    or inappropriate, without first obtaining the patients consent that such
    treatment can be withheld or withdrawn.
[13]

According to the appellants, the decision under review
    puts aside these long-established principles and if allowed to stand, it will
    have serious consequences for the medical profession and the health care system
    as a whole.
[14]

The appellants submit that the application judge did
    not adequately address this issue when she found that the withdrawal of life
    support from the respondent constituted treatment under the Act, such that it
    could only be carried out with Ms. Salasels consent. They submit that
    properly interpreted, treatment under the Act does not include the
    withholding or withdrawal of treatment that has no medical value to the
    patient. Hence, it can be done without the patients consent. That represents
    the common law which they say the Act was meant to reflect, not alter.
[15]

Accordingly, they argue that the impugned orders should
    be set aside.
[16]

For reasons that follow, we would dismiss the appeal.
    In so concluding, we do not minimize the concerns raised by the appellants.
    They are serious and warrant careful consideration. Feelings of sympathy for
    the respondent and his family cannot be allowed to dictate the result.
[17]

That said, we are of the view that the application
    judge reached the correct result in this case. In short, we are satisfied that
    the plan of care proposed by the appellants does amount to treatment as
    defined in the Act. Our reasons differ somewhat from those of the application
    judge.  They address head-on the concerns raised by the appellants.
[18]

Before explaining why we believe that the plan of care
    the appellants wish to implement constitutes treatment under the Act, we
    propose to set out some of the relevant statutory provisions and to briefly review
    the reasons of the application judge.
Relevant Statutory Provisions
[19]

There are many provisions in the Act that bear on the
    issue at hand, some directly, some indirectly. For present purposes, we believe
    that the following provisions are the most pertinent:
1. The purposes of this Act are,
(a) to provide rules
    with respect to consent to treatment that apply consistently in all settings;
(b) to facilitate treatment, admission to care
    facilities, and personal assistance services, for persons lacking the capacity
    to make decisions about such matters;
...
(e) to ensure a
    significant role for supportive family members when a person lacks the capacity
    to make a decision about a treatment, admission to a care facility or a
    personal assistance service; ...
...
2. (1) In this Act,
plan of treatment
    means a plan that,
(a) is developed by one
    or more health practitioners,
(b) deals with one or more
    of the health problems that a person has and may, in addition, deal with one or
    more of the health problems that the person is likely to have in the future
    given the persons current health condition, and
(c) provides for the
    administration to the person of various treatments or courses of treatment and
    may, in addition, provide for the withholding or withdrawal of treatment in
    light of the persons current health condition;
treatment means
    anything that is done for a therapeutic, preventive, palliative, diagnostic,
    cosmetic or other health-related purpose, and includes a course of treatment,
    plan of treatment or community treatment plan, but does not include,
(a) the assessment for
    the purpose of this Act of a persons capacity with respect to a treatment,
    admission to a care facility or a personal assistance service, the assessment
    for the purpose of the
Substitute Decisions Act, 1992
of a persons
    capacity to manage property or a persons capacity for personal care, or the
    assessment of a persons capacity for any other purpose,
(b) the assessment or
    examination of a person to determine the general nature of the persons
    condition,
(c) the taking of a
    persons health history,
(d) the communication
    of an assessment or diagnosis,
(e) the admission of a
    person to a hospital or other facility,
(f) a personal
    assistance service,
(g) a treatment that in
    the circumstances poses little or no risk of harm to the person,
(h) anything prescribed
    by the regulations as not constituting treatment.
(2) A reference in this
    Act to refusal of consent includes withdrawal of consent.
...
10.(1) A health
    practitioner who proposes a treatment for a person shall not administer the
    treatment, and shall take reasonable steps to ensure that it is not
    administered, unless,
(a) he or she is of the
    opinion that the person is capable with respect to the treatment, and the
    person has given consent; or
(b) he or she is of the opinion that the person is
    incapable with respect to the treatment, and the persons substitute
    decision-maker has given consent on the persons behalf in accordance with this
    Act.
...
21.(1) A person who
    gives or refuses consent to a treatment on an incapable persons behalf shall
    do so in accordance with the following principles:
1. If the person knows
    of a wish applicable to the circumstances that the incapable person expressed
    while capable and after attaining 16 years of age, the person shall give or
    refuse consent in accordance with the wish.
2. If the person does
    not know of a wish applicable to the circumstances that the incapable person
    expressed while capable and after attaining 16 years of age, or if it is
    impossible to comply with the wish, the person shall act in the incapable
    persons best interests.
(2)  In deciding what the incapable persons best interests
    are, the person who gives or refuses consent on his or her behalf shall take
    into consideration,
(a) the values and
    beliefs that the person knows the incapable person held when capable and
    believes he or she would still act on if capable;
(b) any wishes
    expressed by the incapable person with respect to the treatment that are not
    required to be followed under paragraph 1 of subsection (1); and
(c) the following
    factors:

1. Whether the treatment is likely to,


i. improve the incapable persons
        condition or well-being,

ii. prevent the incapable persons
        condition or well-being from deteriorating, or

iii. reduce the extent to which, or
        the rate at which, the incapable persons condition or well-being is likely to
        deteriorate.


2. Whether the incapable persons
      condition or well-being is likely to improve, remain the same or deteriorate
      without the treatment.

3. Whether the benefit the incapable
      person is expected to obtain from the treatment outweighs the risk of harm to
      him or her.

4. Whether a less restrictive
      or less intrusive treatment would be as beneficial as the treatment that is proposed.

...
37.(1) If consent to a treatment is given or
    refused on an incapable persons behalf by his or her substitute
    decision-maker, and if the health practitioner who proposed the treatment is of
    the opinion that the substitute decision-maker did not comply with section 21,
    the health practitioner may apply to the Board for a determination as to
    whether the substitute decision-maker complied with section 21.
(2)  The parties to the application are:

1. The health practitioner who
      proposed the treatment.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board
      specifies.

(3)  In determining whether the substitute
    decision-maker complied with section 21, the Board may substitute its opinion
    for that of the substitute decision-maker.
(4)  If
    the Board determines that the substitute decision-maker did not comply with
    section 21, it may give him or her directions and, in doing so, shall apply
    section 21.
[20]

Of those provisions, the operation of s. 21 of the Act warrants brief
    explanation. It sets out the principles that a substitute decision-maker must
    follow in deciding whether to give or refuse consent to a proposed treatment on
    behalf of an incapable person.
[21]

Under s. 21(1)1., if the substitute decision-maker knows of a wish,
    applicable to the circumstances, expressed by the incapable person while he or
    she was capable, after attaining age 16, then the substitute decision-maker
    must abide by that wish and give or refuse consent in accordance with it. (Ms.
    Salasel accepts that that provision has no application in her husbands case).
[22]

Section 21(1)2. applies where the substitute decision-maker is unaware
    of any such wish (as is the case here) or where compliance with such a wish
    proves impossible. Under those circumstances, a substitute decision-maker must
    act in the incapable persons best interests in deciding whether to give or
    refuse consent to a proposed treatment.
[23]

Section 21(2) of the Act sets out various factors that a substitute
    decision-maker must take into account in deciding whether the proposed
    treatment is or is not in the incapable persons best interests. Broadly
    speaking, those factors fall under two heads, one relating to the values,
    beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to
    the nature and medical value of the treatment proposed in the circumstances (s.
    21(2)(c)).
The Reasons of the Application Judge
[24]

The application judge provided detailed reasons for
    judgment. She recognized that the dispute between the parties turned first and
    foremost on a question of statutory interpretation. At para. 18 of her reasons,
    she framed the central issue as follows:
Consent must be obtained when a
    health practitioner proposes to administer a treatment. Therefore, if the
    withdrawal or removal of life support services is considered to fall within
    treatment as defined by the
HCCA
[the Act]
,
health practitioners
    are required to obtain consent from a patient or their substitute
    decision-maker before withdrawing or ending life support.
[25]

After instructing herself on the principles applicable to
    the interpretation of legislative language, the application judge observed
    that under s. 2(1) of the Act, the word treatment as defined includes a plan
    of treatment, and a plan of treatment, also a defined term, specifically
    contemplates as one of its elements, the withholding or withdrawing [of]
    treatment in accordance with a patients health condition.
[26]

The application judge then noted that while the definition
    of a plan of treatment was instructive and of some assistance in resolving
    the issue before her, it was circular in that the word treatment must be
    defined in and of itself in order to determine what withholding or withdrawal
    of treatment means.
[27]

Accordingly, the application judge looked to the
    definition of treatment under the Act and observed that it included anything
    done for therapeutic or preventive purposes. She then considered whether the
    provision of life support could be considered therapeutic or preventive
    and concluded that it could. At paras. 30-33 of her reasons, she stated:
Stedmans Medical Dictionary
, 27
th
ed., defines preventive as to come before,
    prevent. Therapeutic is defined as relating to therapeutics or to the
    treatment, remediating, or curing of a disorder or disease.
The provision of life support, such
    as mechanical ventilation, falls within these definitions. According to the
    Hospital Policy on Appropriate Use of Life-sustaining Treatment produced by the
    University of Toronto Joint Centre for Bioethics/Critical Care Program Task
    Force, the goal of intensive care is to prevent unnecessary suffering and
    premature death by treating
reversible
illnesses for an appropriate
    period of time.  Life support is included in the life sustaining
    treatment offered in intensive care. When viewed in this light, the goal of
    life support is to prevent suffering and premature death and treat
    reversible illness.
At issue in this application is
    whether the life sustaining treatment being offered to the applicant is
    fulfilling the goal outlined above. When interpreting the
HCCA
, the
    characterization of the type of care offered by life support should be
    determined based on its intended purpose. This purpose falls within
    preventive and therapeutic treatment.
Therefore, on the ordinary meaning of
    the text, life support falls within the definition of treatment under the
HCCA
.
    Thus, according to the definition of plan of treatment, the withholding or
    withdrawing of life support also falls within the definition of treatment.  [Emphasis
    in original.]
[28]

The application judge next considered the purpose and
    scheme of the Act and concluded that the inclusion of withdrawing life support
    in the definition of treatment furthered the goals of the Act, particularly
    those identified in ss. 1(a), (b) and (e) in that:

·

All plans to withdraw life support that were not
      consented to by substitute decision-makers would have to be referred to the
      Board, thereby bringing consistency to the process which had heretofore been optional
      at the discretion of the individual treating physician.

·

Treatment would be facilitated by following the
      scheme of the Act which contemplated the delegation of treatment decisions to
      substitute decision-makers, if available, and to the Public Guardian and
      Trustee, if not.

·

As with other treatment decisions, supportive family
      members would be afforded a significant role in end of life decisions.

[29]

The application judge then turned to the consequences of
    adopting the inclusion of withdrawing life support in the definition of
    treatment. She succinctly identified the concerns expressed by the doctors as
    follows:
The [doctors] submit that adopting
    this interpretation will result in patients being able to pick and choose their
    own treatment. If consent is required to withhold or withdraw treatment,
    doctors will have a duty to provide and a duty to continue to provide whatever
    treatment is demanded by patients.
[30]

The application judge rejected this concern because in her
    view the definition of plan of treatment precluded the possibility of
    patients picking and choosing their own treatment. At para. 45 of her decision,
    she stated:
Since a plan of treatment is by
    definition a plan that is developed by one or more health practitioners,
    patients themselves cannot develop it. Medical services or treatments desired
    by patients could only be included in a plan of treatment under the
HCCA
if
    one or more health practitioners adopted it into the plan. In other words,
    treatment cannot be included in a plan of treatment for the purposes of the
HCCA
until it is proposed by a health practitioner. This condition prevents a
    patient from picking and choosing their own treatment as the only treatment a
    doctor would require consent to withhold or withdraw would be one proposed by
    the doctor or by another health

practitioner.
[31]

Finally, the application judge addressed a concern that
    was raised by Sunnybrook Health Sciences Centre (the Hospital). Although the
    Hospital is not a party to this appeal, it argued before the application judge
    that if the withdrawal of life support is included in the definition of
    treatment under the Act, individuals who have no chance of recovery would nevertheless
    have to be kept alive for extended periods of time if consent to end life
    support was not forthcoming and this would impact severely on the limited
    resources of its intensive care unit.
[32]

The application judge addressed that concern by referring
    to the speedy, cost-effective process under the Act whereby treating physicians
    could apply to the Board to have the substitute decision-makers decision
    reassessed where they felt that maintaining the patient on life support was not
    in the patients best interest.
[33]

Significantly, on appeal, the appellants have not pursued
    the issue of resources or the fallout that could occur in intensive care units if
    the decision under review were allowed to stand. In response to pointed
    questions from the court, Mr. Underwood, with his usual candor, made it clear
    that the issue of resources played no part in the appellants submissions, nor
    did it influence their decision to pursue the appeal.
[34]

Accordingly, given the position advanced before us, we
    approach the issue at hand on the basis that fiscal concerns have no bearing on
    our analysis.
[35]

Having determined that the definition of treatment under
    the Act includes the withdrawal of life support and thus consent must be
    obtained, the application judge was not obliged to consider whether consent to
    withdraw life support would also be required at common law. Nonetheless, she
    reviewed the common law jurisprudence and concluded that the common law in
    Canada on this issue is unclear.
[36]

We do not propose to summarize the application judges
    reasons relating to the common law because, in our view, the Act provides a complete
    answer. Nor do we intend to comment on the application judges analysis
    relating to the
Charter of Rights and Freedoms
and whether the
Charter
applies to the appellants proposal to withdraw life support from the respondent.
    We simply acknowledge, per this court
s decision in
M.
    (A.) v. Benes
(1999), 46 O.R. (3d) 271 at para. 22, that the Act should be
    construed in a manner consistent with the
Charter
. We make no comment on
    the respondents argument that personal autonomy considerations under s. 7 of
    the
Charter
confer upon him a right to demand the continuation of medically
    ineffective or inappropriate treatment.
Analysis
[37]

The principal issue to be decided is whether the
    application judge erred in concluding that the withdrawal of life support
    constitutes treatment under the Act. The application judge determined that it
    did, essentially for the reasons found at paras. 30‑33 of her decision,
    which we have set out above at para. 27.
[38]

In a nutshell, the application judge found that the withdrawal of life
    support constitutes treatment under the Act for the following reasons:


(1)

The provision of life support falls within preventive and
        
therapeutic
treatment and thus comes within the definition
        of treatment under the Act.

(2)

Because the provision of life support constitutes
        treatment, its withdrawal necessarily entails the withdrawal of treatment.

(3)

Withdrawal of treatment is specifically referred to in the
        definition of a plan of treatment under the Act and it is recognized, at
        least potentially, as forming a component part of any such plan.

(4)

Under the Act,
        treatment is defined to include a plan of treatment.

(5)

Hence, the proposal of the doctors to remove the respondent
        from life support comes within the definition of a plan of treatment and is
        therefore treatment under the Act.


[39]

The appellants take issue with the application judges line of
    reasoning, at least in part. They do not question that life support measures
    can serve a
therapeutic
or preventive purpose for patients
    and that the provision of life support in those circumstances will constitute treatment
    under the Act. But those cases, they argue, are to be distinguished from cases
    like the present one, where the life support measures being provided to the
    respondent are of no medical benefit to him and may even lead to harmful side
    effects.
[40]

According to the appellants, the respondent is in a perpetual state of
    unconsciousness and there is no prospect of any improvement in his condition. That
    being so, the provision of life support is futile and may properly be regarded as
    worthless.  As such, they submit that it does not constitute treatment at all.
    And that, they contend, is where the application judge went wrong. Specifically,
    in reaching her conclusion that the withdrawal of life support constitutes the
    withdrawal of treatment within the meaning of a plan of treatment under the
    Act, they maintain that she looked at the intended purpose of life support
    measures, which can and often do serve preventive and/or therapeutic purposes,
    rather than looking at the purpose which the life support measures in the
    respondents case were serving, which the appellants submit is non-existent.  In
    short, the appellants contend that the application judge misconstrued the
    meaning of treatment and a plan of treatment in effectively holding that these
    terms in the Act include the withholding or withdrawal of medical care that has
    no medical value or justification.
[41]

For reasons that follow, we find it unnecessary to finally decide
    whether the appellants are correct in their submission that treatment under the
    Act necessarily involves treatment that, in the opinion of the treating
    physician, has some medical value  although we hasten to add that we think there
    is much to be said for the appellants position. Much as we accept that the Act
    is to be construed in a fair, large and liberal manner and that the dignity and
    autonomy of patients must be respected, especially in end-of-life decisions involving
    patients who are totally vulnerable, we have difficulty accepting that the
    legislature intended to include within the definition of treatment measures
    that attending physicians consider to be of no medical value and therefore worthless.
    More to the point, if the legislature intended that consent was required to the
    withholding or withdrawal of life support measures that are considered to be
    medically ineffective or inappropriate, we would have expected clearer language
    to that effect.
[42]

And of course, if medically valueless measures are not to be regarded as
    treatment at all, as the doctors contend, then doctors would be free to
    withhold or withdraw such measures without first having to obtain their
    patients consent; and patients would not be able to demand such measures from
    their doctors.
[43]

Assuming that is the correct approach, it does not detract from a
    doctors overriding duty to act in his or her patients best interest. And if a
    doctor withholds or withdraws medical care on the basis that it is valueless,
    he or she will be held accountable if the decision is found to have fallen
    below the requisite standard of care.
[44]

The respondents litigation guardian takes a different position  as
    does the intervener. Ms. Salasel rejects the underlying premise upon which the appellants
    argument is based.  She does not accept that the life support measures her
    husband is receiving are of no medical value. Doctors are not infallible and
    the appellants may be mistaken in their diagnosis. It is too soon to tell. In
    line with this, it can hardly be said that the life support measures the respondent
    is receiving are worthless. On a basic level, they are what is keeping him
    alive. When considering what the word treatment means in the context of a
    plan of treatment under the Act, Ms. Salasel points out that while the
    appellants may consider her husbands condition to be a living death, in the
    eyes of the law, he remains a human being. As such, he is entitled to remain
    alive, with the assistance of life support measures, until such time as she
    feels there is no further hope for his recovery.
[45]

On this view, the legislature contemplated cases such as the respondents
    when it defined a plan of treatment to include the withholding or withdrawal
    of treatment in light of the persons current health condition. Whatever the
    common law may be, by using that language, the legislature intended to make it
    clear that the withdrawal of life support is to be construed as treatment for
    which consent under the Act is required, and where consent is not forthcoming, the
    patients treating physician cannot act unilaterally. Rather, if the physician
    is not content with the refusal of a substitute decision-maker to provide
    consent to the withdrawal of life support, the physicians recourse is to refer
    the matter to the Board for disposition.
[46]

As indicated, in order to decide this appeal, we need not resolve the
    metaphysical debate over whether life saving measures in cases such as the
    respondents are of no medical value because they are futile, or of high
    medical value because they are keeping him alive while his family continues to
    hold out hope for his recovery. For present purposes, we are prepared to accept
    that the Act does not require doctors to obtain consent from a patient or
    substitute decision-maker to withhold or withdraw treatment that they view as
    medically ineffective or inappropriate.
[47]

With that, we turn to consider whether the proposal put forward by the
    appellants  removing the respondent from the mechanical ventilator and placing
    him on a program of palliative care until he dies  nonetheless constitutes treatment
    under the Act for which Ms. Salasels consent is required. In our view, it
    does.
[48]

Palliative care is not defined in the Act.
Stedmans Medical Dictionary,
28
th
ed. (Baltimore: Lippincott Williams & Wilkins, 2006)
,
defines palliative as the alleviation of symptoms without curing the
    underlying disease.
[2]
Palliative care is included in the definition of treatment under the Act.
    Manifestly, it encompasses end-of-life care provided to a patient to keep the
    patient comfortable pending his or her imminent death, upon removal of a
    life-sustaining mechanical ventilator (end-of-life palliative care). As such,
    the appellants must obtain Ms. Salasels consent to administer end-of-life palliative
    care upon removal of the mechanical ventilator.
[49]

In oral argument, Mr. Underwood fairly conceded that end-of-life palliative
    care will only be administered to the respondent once he is taken off the
    mechanical ventilator and that no responsible substitute decision-maker would
    refuse to consent to palliative care for an end-of-life patient being removed
    from a mechanical ventilator.
[50]

In other words, in the respondents circumstances, removal of the
    ventilator is a necessary precondition to the administration of end-of-life palliative
    care and end-of-life palliative care is a necessary response to removal of the
    ventilator. The two go hand in hand. One is integrally linked to the other.  And
    they foretell a single certain result  the respondents imminent death once
    the ventilator is removed.
[51]

The concept of palliative care in these circumstances necessarily
    recognizes that death is imminent. Once life sustaining measures are withdrawn,
    as they must be before end-of-life palliative care is administered, there is no
    turning back. The patient has no other options or choices. Death is a certainty.
    All that remains is to keep the patient as comfortable as possible until the
    end comes.
[52]

That is the essence of end-of-life palliative care. And where it is
    recommended as an adjunct to the withdrawal of life support, the two, in our
    view, cannot be separated. They are a treatment package and that is how they
    should be viewed for purposes of the Act.
[53]

The respondents situation is to be distinguished from situations where
    the medical community simply has nothing more to offer a patient by way of
    treatment  but death is not imminent. To take one example, discontinuing
    chemotherapy because it is not benefitting the patient is not the same thing as
    removing a patient from life support and moving him or her directly to end-of-life
    palliative care. In the former situation, assuming there are no other
    therapeutic or preventive measures available, the patient is being told that
    there is nothing further that can be done and when the time comes  which may
    be a week, a month, or six months  steps will be taken to keep the patients end-of-life
    suffering to a minimum.  Unlike the situation that exists when life support
    measures are withdrawn, there will generally be a gap between the withdrawal of
    chemotherapy and the end-of-life palliative care phase. Ending chemotherapy
    does not spell the patients imminent death  and it does not trigger a
    requirement for a particular form of palliative care.
[54]

In our view, that distinction largely addresses the appellants concerns
    arising from the decision under review, that doctors will be prevented from
    withholding or withdrawing measures they consider to be medically valueless, without
    first having to obtain their patients consent to do so.  Equally, it shuts the
    door on their concern that patients will be able to demand treatment that their
    doctors consider to be medically worthless.
[55]

It also puts to rest the appellants concern about withholding treatment
    in the first place.  That concern arises because the terms withholding
    treatment and withdrawing treatment are used together under the Act. No
    distinction is drawn between them. And yet, according to the appellants, while
    the application judge did not say so explicitly, she implicitly drew a
    distinction between the withdrawal of life support measures, which she says
    requires a patients consent, and the withholding of such measures in the first
    place, for which she apparently believes consent is not required. That, the
    doctors submit, creates an inconsistency in the Act.
[56]

Assuming the appellants are correct in this, the problem disappears on
    the analysis we have suggested.  If life support measures are withheld from the
    outset because they are considered to be of no medical value, there is nothing
    to transfer from before moving to palliative care. The two are not integrally
    linked. Beginning end-of-life palliative care does not require, as an initial
    first step, ending life support.
[57]

Patients need not fear that this distinction between withholding life
    support measures from the outset and withdrawing them after they have been put
    in place will cause doctors to choose the former over the latter.  Doctors must
    act in their patients best interests, and if they fall below the requisite
    standard of care in withholding treatment from the outset, they can be held
    accountable.
[58]

Interpreting end-of-life palliative care to include the withdrawal of
    life support measures where those measures are in place and must be terminated
    before end-of life palliative care can begin, simply means that in cases like
    the one at hand, treating physicians will have to obtain the substitute
    decision-makers consent to the entire treatment package. Where consent is
    withheld, and the treating physician is not satisfied that the substitute
    decision-maker has complied with the requirements of s. 21 of the Act, then he
    or she may resort to s. 37 of the Act and refer the matter to the Board for
    determination.
[59]

Recourse to the Board may not be a perfect solution from the appellants
    perspective.  If a substitute decision-maker has acted under s. 21(1)l. on a
    wish that incapable person expressed while capable, after attaining 16 years of
    age, and the Board is satisfied this is so, the Boards hands are tied and this
    effectively ends the matter. There will be no inquiry to determine if the
    substitute decision-maker has acted in the incapable persons best interests
    under s. 21(1)2. of the Act.
[60]

But that is the legislatures will. And it involves policy
    considerations that come within the legislatures purview and are best left to
    the legislature to sort out.
[61]

Apart from that draw-back, recourse to the Board clearly has its
    beneficial aspects. In her reasons for judgment, the application judge references
    the many advantages that flow from the process the legislature has implemented,
    the most noteworthy being an expeditious hearing before an expert Board.  We do
    not intend to repeat her observations at paras. 48-50. Suffice it to say that we
    agree with them. This courts decision in
M. (A.) v. Benes
,
supra
,
    also contains a description of the Boards mandate and the functions it is
    required to perform.
[62]

In sum, while the recourse available to a doctor who disagrees with the
    decision of a substitute decision-maker in an end-of-life case may not be
    perfect from the doctors perspective, the process seems to have worked well
    since the Act came into existence some 15 years ago.  End-of-life situations
    are always emotionally laden.  The process created under the Act provides
    doctors with a safety valve in cases where the patient has not expressed a
    prior wish under s. 21(1) of the Act.  Most doctors, we believe, would see that
    as a good thing, rather than viewing it as an impediment to their professional
    independence and autonomy.
[63]

Moreover, as Mr. Underwood stated at the outset of his submissions, the
    problem that has arisen in this case is not a common one. In most situations,
    life-ending decisions are worked out over time through a combination of patience,
    understanding, professional guidance and counselling. In this regard, the College
    of Physicians and Surgeons and individual hospitals deserve credit for the very
    sensitive protocols they have put in place to address life-ending decisions and
    the trauma that family and loved ones face when required to make them.
[64]

We do not believe that by interpreting palliative care to include the
    withdrawal of life support measures, the floodgates will open and intensive
    care units will be deluged with patients who have no chance of improvement but
    who require life-sustaining measures to survive. If that proves to be the case,
    then the legislature can, and no doubt will review the situation.
Conclusion
[65]

The proposal of the appellants to withdraw the respondent from life support and place him on end-of-life palliative care constitutes “treatment” under the Act, for which the consent of Ms. Salasel is required. If her consent is not forthcoming, the appellants’ proposal must be referred to the Board. Save for requiring that any amendments be made to the formal orders below so that they conform to these reasons, we would thus dismiss the appeal, without costs, as regards the intervener. If the parties cannot agree on costs, they may make submissions to the court in writing within 20 days of the release date of these reasons. The submissions shall be double spaced and shall not exceed 3 pages in length.
Signed: M. J. Moldaver J.A.
Janet Simmons J.A.
I agree D. Doherty
    J.A.
RELEASED: DD JUNE 29, 2011

[1]
Among the many doctors who have examined him, the respondent was assessed in
    January 2011 by a neurologist who had no prior involvement with him and who
    confirmed the diagnosis of permanent vegetative state. As well, the family was invited
    by the Hospital to obtain their own neurological opinion, if they wished to do
    so.


[2]
Organizations such as the World Health Organization and the Canadian Hospice
    Palliative Care Association have provided extended definitions of palliative
    care. For present purposes, we need not determine the exact scope of the term
    as it appears in the Act.
