End-of-life wishes: Whose Decision?

The Supreme Court of Canada has just released its decision in the Rasouli case (Cuthbertson v. Rasouli 2013 SCC 53)

For those unfamiliar with the case, Mr. Rasouli has been on life support for a number of years following complications from surgery. His doctors want to remove him from that life support, in which case he will likely die fairly soon. His wife has refused to give her consent to such removal from life support. Under the health care legislation of Ontario, she is Mr. Rasouli’s substitute decision maker by default, because Mr. Rasouli himself did not appoint such a decision maker. For that reason, in this case, we do not know what Mr. Rasouli would have wanted, had he turned his mind to the possibility that a time such as this would come, where he is in a coma with no hope of recovery, and may remain so for a very long time.

My personal opinion, for what it’s worth, is that the Supreme Court got it absolutely right. The Ontario legislation provides a scheme for who gets to make decisions in such cases, which Mr. Rasouli’s doctors were not willing to follow. This decision provides us at least with the certainty that where a provincial government has set out the rules, they must be followed.

In British Columbia, which has similar legislation, a spouse is also the default decision maker, followed by a list of others, including adult children.

If a situation similar to that in Rasouli arose in BC, his wife would have a right to refuse health care that would prolong his life (ie, life support) but the Health Care (Consent) and Care Facility (Admission) Act is silent about what would happen (absent the written instructions of the patient) if the medical professionals wanted to unplug the person and the spouse refuses.
In British Columbia and most other provinces it is possible for a person to appoint a representative for health care, or alternate decision maker, under the Representation Act (BC) or similar legislation. I urge you to do so. It lets your family and doctors know your wishes. It avoids fights among family members (yes, even between competing spouses, because in BC at least, under the new Family Law Act, it is possible to have more than one legal spouse).

A well drafted representation agreement, containing specific wishes, may also prevent the kind of situation that Margaret Bentley and her family found themselves in. That was the “spoon feeding” case in BC, where Mrs. Bentley made a “living will” requesting that she not be fed “nourishment or liquids” if she was in the advanced stages of Alzheimer’s. She had reached that stage but staff at the facility where she lived were nevertheless putting food in her mouth, which, we are told, she reflexively ate, thereby remaining alive. When her family resisted, the health care authority sought to bar the family from contact with Mrs. Bentley.

Take care of letting your wishes be known while you can. Talk to family members about what you want, and then put it in writing. A lawyer can help you draw up a representation agreement that will stand up to challenge, but you can also go online to the BC Government web site. Whatever your end of life wishes, don’t leave them to be fought over among family and/or medical professionals.

About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
This entry was posted in Law. Bookmark the permalink.

2 Responses to End-of-life wishes: Whose Decision?

  1. byroncannon says:

    Hi Maria

    I hope you are well. This is an interesting decision. Do you mind if I hyperlink your blog to a posting I intend to do on my blog highlighting this important issue?

    Kind regards

    Byron Cannon Director FERGUSON CANNON LAWYERS

    CONFIDENTIALITY AND LIABILITY: This is a confidential legal communication. Liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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