Palliative care following the end of life support is 'treatment' and requires consent of substitute decision maker

Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 holds that the end of life support followed by palliative care is 'treatment' for purposes of the Health Care Consent Act and so requires the consent of the patient's substitute decision maker or a determination by the Consent and Capacity Board. The Court holds:

[48]     Palliative care is not defined in the Act. Stedman's Medical Dictionary, 28th 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. Salasel's 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 respondent's 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 respondent's 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 Once life sustaining measures are withdrawn, as they must be before end-of-life palliative care is administered, there is no turning back.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.