14 Sep Rasouli at the Supreme Court of Canada: No End to the End of Life Debate
It is difficult to conceive of a more legally and ethically challenging circumstance than a dispute between family members and a health care team regarding the withdrawal or withholding of treatment at the end of life. On one hand are families who are emotionally devastated and trying to come to terms with the condition of their loved one. On the other is a health care team struggling to balance the wishes of family members with their ethical and legal obligations to do no harm and to act in the best interests of their patient. While the patient’s family in these situations is clearly suffering, health care providers also experience distress when they are pressured to provide treatment they deem to be futile, harmful or otherwise not clinically indicated. This paper will briefly summarize the main aspects of the recent Supreme Court of Canada decision in Cuthbertson v Rasouli  (“Rasouli”) and will consider the impact of the decision both inside and outside of Ontario.
The Rasouli Decision
In October 2010, Hassan Rasouli was admitted to the Sunnybrook Health Science Centre in Toronto, Ontario for the removal of a benign brain tumor. He subsequently developed an infection causing severe brain damage and was placed on life support. Rasouli’s health care team, understanding him to be in a persistent vegetative state with no real chance of recovering, sought to remove artificial life support and implement palliative care. The care team believed that further artificial life support provided no medical benefit and advised Rasouli’s wife, Ms. Salasel, that discontinuing life support and providing palliative care was the best option available.
Ms. Salasel, as Mr. Rasouli’s substitute decision maker (“SDM”), disagreed with this assessment and applied to the Ontario Supreme Court for an order preventing the physicians from withdrawing life sustaining treatment without her consent, citing the provisions of Ontario’s Health Care Consent Act (“HCCA”). Rasouli’s health team cross-applied seeking a ruling that consent was not required to withdraw life support when the treatment being provided was futile. The trial judge granted Ms. Salasel’s application holding that her consent was required for the withdrawal of care and if she refused, the physicians were required to apply to the Consent and Capacity Board (“CCB”). The Ontario Court of Appeal subsequently upheld this decision.
Two questions were at issue at the Supreme Court of Canada. The first was whether withdrawal of an intervention no longer providing a medical benefit was considered “treatment” under s. 10(1) of the HCCA. Key to this issue is the HCCA’s definition of “treatment” which reads in part:
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.
If the HCCA was found not to apply, the second question was whether the common law permitted the removal of life support without Ms. Salasel’s consent. Given the breadth of the definition of “treatment” under the HCCA, and how close the administration of palliative care was linked to the withdrawal of life support, it was found that for the purposes of the HCCA, the withdrawal of treatment did constitute “treatment” and consent was required. The Court held that in this case, with Ms. Salasel’s refusal to consent, the physicians were required to apply to the CCB. As the Court stated, “it will be for the Board to determine whether Ms. Salasel’s refusal to provide consent to the withdrawal of life support was in Mr. Rasouli’s best interests, within the meaning of s. 21(2) of the HCCA”. According to the Court, while questions involving end of life care may indeed place physicians in difficult ethical situations, this does not alter the burdens placed on them by the HCCA. The majority also stated that the HCCA did not simply codify the common law of consent. The Court explained that in some ways the HCCA broadened the common law of consent and in other ways narrowed it, particularly through the detailed definition of treatment. As the HCCA was found to be applicable, the majority did not address the second issue.
Writing for the majority, McLachlin CJ significantly narrowed the scope of the decision:
This case turns on statutory interpretation – what the HCCA provides. It is not a case about who, in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment. Nor does the case require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed of little or no value.
Justice Karakatsanis, joined by Justice Abella, dissented and would have found that the common law, rather than the HCCA, governs disputes between physicians and SDMs in situations involving the removal of life support. According to Justice Karakatsanis, the HCCA codifies the common law and does not give patients or their SDMs the right to treatment that is “futile, harmful, or contrary to professional medical standards of care.”
Impact of the Decision
In Ontario, the Rasouli decision will no doubt cause an increase in applications to the CCB for the withdrawal of treatment by health providers. Only time will tell if this is ultimately a good thing for patients, families, health providers and the health system as a whole. In provinces without similar legislation, the direct impact of the Rasouli decision is limited. It will, however, be interesting to see how justices hearing injunction applications under the common law interpret the decision and whether the reasoning of the dissent is applied.
The majority in Rasouli broadly interpreted the provisions and purpose of the HCCA and concluded that withdrawal of treatment under the HCCA is included in the definition of treatment. As a result, in the face of an objection from the SDM, health providers in Ontario will be required to obtain CCB approval before withdrawing care even in the most futile of cases. Often the dispute does not end there and an application to the courts is made to review the decision of the CCB. As a result, despite the hopes of those who believe applications to the CCB will shorten the process and are preferable to an injunction application, there are no guarantees that the time to resolution in Ontario will be any shorter than other provinces. In Alberta, where the practice has developed to deal with these applications by originating application, the court process is capable of reacting in an expedited and efficient fashion and may prove to be more expeditious than the Ontario system.
The majority gives minimal attention to the limitations of sections 35 to 37 of the HCCA and relies heavily on these sections as support for a physician’s ability to challenge a SDM’s refusal of consent to withdrawal of treatment. However, s. 35 only applies to limited circumstances including where the prior expressed wish is not clear or where it is not clear whether the wish is applicable to the circumstances. Consider if Mr. Rasouli had a clear prior expressed wish that ‘all possible life support and resuscitative measures be provided to him even if it only served to prolong the dying process and even if it caused him significant pain and suffering’. In those circumstances s. 35 would not likely be of assistance and the health provider would have to apply to the CCB under s. 36(1)(b). In the circumstances of such a clear prior expressed wish, it is unlikely the criteria for permission under s. 36(3) would apply to allow the Board to override the wish. Similarly, s. 37 is restricted to an examination of whether the SDM complied with s. 21 and would likely not assist in the face of a clear prior expressed wish.
If the wording of these provisions (ss. 35-37) is carefully reviewed, it calls into question the majority’s conclusion that the HCCA contemplated that consent would be required for the withdrawal of treatment in these circumstances. Consider for example the wording of the criteria for permission for the SDM to override a prior expressed wish. In s. 36(3) the Board may give a SDM permission to consent to the treatment
…if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.
It seems highly questionable that the Ontario legislature had the withdrawal of mechanical ventilation in mind when it drafted this language. If it did, one would have thought that different language than “likely result of the treatment is significantly better” would have been chosen. In addition, if the SDM opposes the withdrawal of treatment they are not likely to seek permission to depart from the prior expressed wish if that wish was for all care to be provided.
On a plain reading of these and other sections of the HCCA, it seems clear that the primary focus of the legislation is on positive treatment and not the withdrawal or withholding of treatment. The HCCA clearly contemplates the need for consent to positive treatment and the autonomous right of patients and their SDMs to refuse such treatment even if it means harm or death to the patient. To this extent, the HCCA is entirely consistent with the common law, which recognizes an all but absolute right of patients to refuse treatment even if it results in their death. However, the principles of autonomy, as essential as they are, cannot be extended to demand treatment that is not being offered by health providers. It is not an expression of autonomy to force another person to provide care that is contrary to their professional judgement and ethical obligations. Autonomy must have some limits. If the HCCA was intended to override the common law principle that patients do not have the right to demand treatment that is futile or not clinically indicated, one would have thought that express language to that effect would have been required. Based on a plain reading of the wording of the HCCA, it is not surprising that Justice McLachlin took the approach she did. Yet, it is highly questionable to say that the HCCA scheme contemplates the need for consent to withdraw treatment that is futile or not clinically indicated. Ultimately the Ontario legislature must clarify what it intended regarding the necessity of consent to the withdrawal of treatment that is considered by the medical team as no longer clinically indicated or futile.
The end result is that, in addition to requiring an increase in the frequency of applications to the CCB, there is a real risk under the Court’s analysis that patients in Ontario, by prior express wish, will be able to dictate to physicians what treatment will be provided at the end of life regardless of the clinical judgement of the medical team. This is not something that patients in any other circumstances may do. Patients in other situations are entitled to refuse treatment but are not entitled to dictate what care they receive as the treatment must both be offered and clinically indicated before consent is required.
In jurisdictions without a statutory scheme similar to Ontario, little has changed after the Rasouli decision. In these jurisdictions, the dissenting reasons of Justice Karakatsanis may be persuasive on the fundamental question of whether consent is required under the common law for the withdrawal of treatment that is futile, harmful or contrary to clinical judgement or medical standards of care.
Justice McLachlin’s comments significantly limit the applicability of the Rasouli decision in jurisdictions without legislation comparable to the HCCA. The Chief Justice specifically noted that the common law remains unsettled as to whether consent is required to withdraw life support. Justices outside Ontario will no doubt carefully scrutinize the majority decision and it may impact the analysis of when consent is required for steps health providers propose to take at the end of life. It is interesting to note that in the legislation in British Columbia and Prince Edward Island – two of the statutes the Court mentions – there is reference to “available health care” or a choice of “a particular form of treatment from among those proposed by a health practitioner.” This supports the proposition that there remains a threshold requirement that the treatment must be clinically indicated and offered by health providers before there is a role for consent.
In earlier cases, the issue is often framed as “who gets the right to decide whether to withdraw or withhold treatment at the end of life”. More recent cases have focused on the “best interests” of the patient, which includes an analysis of the medical condition, medical recommendations and wishes and beliefs of the patient. However, the “best interests test” as set out in Sweiss v. Alberta Health Services does not recognize the fundamental issue that patients (or SDMs) in Canada do not have the right to demand treatment that, in the opinion of their health providers, is not clinically indicated. The Canadian health care system is built on the premise that health providers (physicians in particular) decide what treatments are clinically indicated for a particular patient and therefore what treatments will be offered. Just because aggressive life support treatments like mechanical ventilation are provided initially to a patient should not mean that the patient is then provided with the unilateral right to refuse the withdrawal of that treatment. Taken to its extreme, this principle would mean that physicians who have commenced CPR on a patient who suffered a serious heart attack and has been on mechanical ventilation in the ICU for a week would have to continue CPR and could not stop mechanical ventilation until the patient’s SDM consented to the cessation of resuscitation measures. Because they have commenced the resuscitation, is the care team required to continue it if the patient or their SDM refuses to consent to ending it? Indefinitely? If commencing a treatment means that in all circumstances consent will be required to withdraw that treatment (at least if that withdrawal requires a touching of the patient or is part of a palliative care plan), there is a real danger that health providers will be much more cautious in choosing the treatments they offer or commence. The aggressive advancement of a requirement of consent to the withdrawal of treatment may cause patients ultimately to have more perceived control but less actual choice.
The continued provision of life support treatment is an ongoing daily or hourly decision by health providers that such treatment is clinically indicated. When the point is reached that the health care team views further life support as not clinically indicated because it is harmful, futile or contrary to medical standards of care, withdrawal of such treatment is not a decision that requires the consent of the patient because the treatment is no longer being offered by the health care team. This is a fine but critical distinction in these cases and one the courts as of yet have not fully addressed.
One of the key fallacies underlying the position of the families and some judicial decisions in these cases is that end of life care including mechanical ventilation and resuscitation are relatively innocuous and cause little harm to the patient. In many cases, however, CPR and aggressive resuscitation to a critically or terminally ill individual at the end of their life is not effective and the patient dies in traumatic circumstances. Properly done, CPR often involves the breaking of ribs and medications given in resuscitation can often aggravate the patient’s underlying condition. Even continued mechanical ventilation is extremely invasive and requires frequent suctioning and ongoing management. At the very least it causes regular or constant significant discomfort and often pain.
At present, the principle already exists in Canadian law that a health care provider is not obliged to provide whatever treatment a patient (or their representatives) may request, especially if that treatment is inappropriate or potentially harmful. In these instances, the health care provider’s overriding legal and ethical obligations require him or her to withhold treatment based on their own clinical judgement. Policy statements of many professional organizations strongly support this principle. Due to the knowledge asymmetry between patient and caregiver, providing treatment the provider knows to be unwarranted and potentially harmful could make the caregiver liable in negligence for injuries suffered as a result of the treatment. This duty not to provide inappropriate (or futile) treatment does not disappear in end of life situations where further treatment provides no medical benefit to the patient or only prolongs pain and suffering and the dying process. This legal and ethical tension becomes much more acute in those not infrequent cases where there is a dispute between family members (or SDMs) about whether care should be withdrawn. In those circumstances, the physician is caught between the legal rock and the ethical hard place. Once the physician reaches the decision that further care is contrary to the medical standard of care, they could be successfully sued for continuing to provide that care while negotiating with the family and pending the outcome of the legal process. While an order of a court or CCB to provide the care will protect the physician after the order is made, it is not clear that there would be any defence to a negligence claim for the treatment provided prior to the order being made.
It has also been argued that the decision to withdraw or withhold treatment is a moral decision as opposed to a medical one. On the contrary, the decision as to whether a particular treatment (including mechanical ventilation or resuscitation) is clinically indicated and therefore should continue to be offered, is a medical decision not a moral one. For terminally ill patients where it is the request of the patient or SDM to prolong the dying process by use of any and all medical means, it simply cannot be the law in Canada that the health care team is required to provide those medical treatments contrary to their clinical judgement and ethical obligations. Similarly, for a patient in a persistent vegetative state with no hope of meaningful recovery, it is not the right of the SDM to demand full medical care that is contrary to the clinical judgement and ethical obligations of the healthcare team. Interestingly, in the case known as Baby M, Justice Ross determined that the trend in written decisions “reflects a general societal understanding that life without awareness and totally supported by machines is not in accordance with the best interests of any patient.” The law of informed consent should not govern the determination of the withdrawal of care deemed by the medical team as not clinically indicated, futile or harmful.
These situations become more difficult where the medical facts are uncertain and there is some reasonable hope of at least partial recovery. In these circumstances, the patient/SDM does not necessarily have a unilateral right to demand treatment, nor does the care team have a unilateral right to withdraw treatment. If a consensus cannot be reached, the assistance of expert evidence and ultimately a court decision may be required to determine what is in the patient’s best interests.
A key issue in the Rasouli decision is the linkage between the withdrawal of treatment and palliative care or comfort measures. It is true that the withdrawal of treatment is, in most cases, done in conjunction with the provision of comfort measures and may be followed by a plan of palliative care. In fact, in most cases in the ICU some form of pain medication or sedation will already be in use prior to the withdrawal of treatment. What may be required at the time of the withdrawal of care is the adjustment of dosage or a change in the type of medication but the medical goal of pain control and sedation remains the same. If a care team determines that further life support measures are futile then, in the absence of a binding statutory provision, the care team should give notice of its intention to withdraw care and provide the family with advance written notice to allow them the opportunity to apply to the appropriate legal body to prevent the withdrawal of care. Whether or not a separate consent discussion will be required for any changes to the comfort measures provided to the patient at the time of withdrawal will depend on the facts of each case. If significant changes to the management of the patient are required or a formal palliative care plan is instituted after the withdrawal of treatment, consent of the SDM is likely required. The discussion of the provision of comfort measures or a palliative care plan should be a separate discussion distinct from the discussion of withdrawal of care. The care team must recognize that while they may be able to withdraw futile care without consent at common law, to provide positive treatment materially different than the care previously provided and consented to or to institute a palliative care plan without consent may be a battery. It is interesting to note that Justice McLachlin explicitly contemplates that not all withdrawals of treatment are equivalent for the purposes of the HCCA and states: “A more nuanced view that withdrawal of treatment may sometimes, although not always, constitute “treatment”, better fits the provisions of the HCCA and the realities of medical care.” Moreover: “This case does not stand for the proposition that consent is required under the HCCA for withdrawals of other medical services or in other medical contexts.”
Unfortunately Justice McLachlin’s elaboration on this more nuanced view is not particularly helpful and provides little guidance to physicians and families except that it seems that consent is required any time a patient will be touched in any way during the course of a withdrawal of treatment. This seems an all too arbitrary and simplistic line to draw and not at all nuanced. Assuming there was consent initially for the touching required to institute and later for the touching required to maintain the mechanical ventilation, surely there is at least implied consent for the touching required to end the treatment once it is no longer required. In addition, the assumption that touching of the patient will be required in most cases where mechanical ventilation is disconnected is medically false. Justice McLachlin relies on the definition of extubation in her reasons. However, in many cases where withdrawal of mechanical ventilation is being contemplated, the patient will have a tracheostomy that allows the mechanical ventilation to be disconnected from the patient without touching them.
The result of the Rasouli decision in Ontario is that many more applications will be made to the CCB and the Board will more often be put in the position of reviewing the decision of the SDMs in light of the best interests of the patient. A key but not determinative factor in this analysis is the recommendation of the care team. An as yet unresolved and potentially serious problem is that a clear prior wish requesting all possible care will tie the hands of the SDM, the care team and the Board.
Setting aside the Rasouli decisions that were based on the provisions of the HCCA, the clear trend in the common law has been to afford a greater degree of deference to health care providers to determine what medical treatment is provided in end of life situations. This trend has also generally been true in Consent and Capacity decisions. The difficulty with these cases is that the cultural, religious and medical circumstances are divergent in each case and do not lend themselves well to black and white legal tests. Whether it is a CCB examining what is in the best interests of a patient or a court considering an application to prevent the withdrawal of care, a key element must be the medical evidence and whether an order can be justified requiring health providers to continue care deemed to be not clinically indicated, futile or contrary to medical standards of care. The wishes and beliefs of the patient and family are also key considerations. In these difficult cases, a sliding scale of deference to medical judgement should be applied. The clearer the futility of further care and the more egregious the circumstances of the patient, the more determinative the judgement of the physicians must be. At the other end of the spectrum are cases where the question is not about futility of care (and the care requested is not outside the standard of care) but about whether the care is worth continuing in light of the potential benefits and harms. In those cases, the physicians’ judgement is important but not determinative and the wishes and beliefs of the patient and the family become the primary factors.
In recent years, we have seen great improvements in communication by health providers and extraordinary efforts being made to reach consensus with families to avoid these types of legal disputes. When it becomes clear that a dispute is arising between a family and a health care team regarding withholding or withdrawing treatment in end of life situations, the following approach is recommended.
1. Clear Communication
Every effort should be made by the health care team to provide information to the family to ensure they understand fully the condition of their family member and the prognosis. This cannot be done in one meeting but must be done over a period of time allowing families to absorb the information.
2. Involvement of Other Resources
Health providers and hospitals should involve other resources, as appropriate, to assist the family in coming to terms with the tragic circumstances, such as spiritual care, social work and religious or cultural leaders from the family’s community.
3. Ethics Consultations
A clinical ethics consultation should also be conducted and the family should be a full participant in the process. If available, a clinical ethics advisor should be available to the family to assist them in coming to terms with the circumstances.
4. Second Opinions
The family should be provided with an opportunity to seek a second opinion including an independent opinion and the family should be provided access to the patient’s health record to facilitate this process.
5. Advance Notice
Once all the above measures have been taken and every effort has been made to reach a consensus with the family, the family should be provided with reasonable advanced notice that the treatment will be withdrawn unless a court application is brought to prevent it. In Ontario an application will have to be made to the CCB.
6. Continued Engagement and Support of Family
If the notice period expires without an application being made by the family, the care team should withdraw care and continue to engage the family in the process and provide support.
A process that includes these steps will reduce the incidents of intractable disputes between patients’ families and health providers. It will also serve to reduce the distress experienced both by health providers and families and will allow family engagement even though the ultimate decision may not be solely in their hands.
We must bear in mind that if the decision as to when treatment can be withheld or withdrawn is placed solely in the hands of patients or SDMs, we will have a circumstance where physicians are required by law to provide care they deem to be not clinically indicated, harmful or futile. Lord Donaldson of the English Court of Appeal stated it eloquently in Re J:
The fundamental issue in this appeal is whether the court in the exercise of its inherent power to protect the interests of minors should ever require a medical practitioner or health authority acting by a medical practitioner to adopt a course of treatment which in the bona fide clinical judgement of the practitioner concerned is contraindicated as not being in the best interests of the patient. I have to say that I cannot at present conceive of any circumstances in which this would be other than an abuse of power as directly or indirectly requiring the practitioner to act contrary to the fundamental duty which he owes to his patient.
This is not to say that in all circumstances physicians have the final say. However, physicians in our medical system do have the right to decide what treatments are offered. There is no legal, ethical or moral justification for making an exception to this fundamental principle in end of life cases. Courts or a CCB should be very hesitant to interfere with the medical decision about what treatments are to be offered and even more hesitant to order physicians to provide care they deem to be not clinically indicated, harmful or futile. If a court (or CCB) does venture into this territory, it must be prepared to continue to actively direct care. As long as an order is in place requiring a care team to provide treatment against their judgement, the court or board will have to be directly involved in the management of care. This is a situation that works for no one. In the end, it is the desire of all health care providers to work productively with families to reach a consensus that all parties can accept. If the steps laid out above are followed, the likelihood of these tragic and difficult legal disputes arising will be significantly decreased. This should be the goal of everyone.
Michael A. Waite, BA, LLB, LLM, is a partner with Carbert Waite LLP. Portions of this paper come from a summary of the Rasouli decision written by Michael Waite and Duncan Taylor and posted to the Canadian Bar Association National Health Law Section webpage and from a discussion paper written by Michael Waite and Duncan Taylor for the 2013 National Health Law Summit: Critical Issues in Health Law conference, held in Halifax in May 2013. The author would like to thank Duncan Taylor for his assistance.
1 Cuthbertson v Rasouli, 2013 SCC 53 [Rasouli].
2 Health Care Consent Act, SO 1996, c 2 [HCCA].
3 Rasouli v Sunnybrook Health Sciences Centre, 2011 ONCA 482.
4 HCCA, supra note 2, Sch A, s 2(1).
5 Rasouli, supra note 1 at para 120.
6 Supra note 1 at para 52.
7 Ibid at para 4.
8 Ibid at para 125.
9 HCCA, supra note 2 at s 35
10 Ibid at s 36.
11 Ibid at s 37. For examples of cases involving the interpretation of ss 35-37 of the HCCA, see: BC (Re), 2008 CanLII 14521 (ON CCB); Barbulov v Cirone, 2009 CanLII 15889 (ON SC); LL v IT,  OJ No 4205, 80 OTC 138; Scardoni v Hawryluk,  OJ No 300, 69 OR (3d) 700.
12 HCCA, supra note 2 at s 36(3) [emphasis added].
13 At para 22 of Rasouli, supra note 1, the Court points out that several other provinces have adopted “similar legislation” to the HCCA governing consent to treatment for capable and incapable patients and refers to legislation in Manitoba, BC, Yukon, PEI and Quebec. These statutes are significantly different from the HCCA, however, and must be interpreted individually.
14 HCCA, supra note 2 at para 53.
15 Health Care (Consent) and Care (Admission) Act, RSBC 1996, c 181, s 4 [emphasis added].
16 Consent to Treatment and Health Care Directives Act, RSPEI 1988, c C-17.2, s 4(b) [emphasis added].
17 Sweiss v Alberta Health Services, 2009 ABQB 691, 483 AR 340.
18 EI Picard and GB Robertson,Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Carswell, 2007) at 345.
19 See, e.g., College of Physicians and Surgeons of Ontario, Policy Statement #1-06: Decision-Making for the End of Life (July 2006), online: http://www.cpso.on.ca/policies-publications/policy/decision-making-for-the-end-of-life; College of Physicians and Surgeons of Manitoba, Statement No. 1602: Withholding and Withdrawing Life-Sustaining Treatment (2007), online: http://cpsm.mb.ca/about-the-college/by-laws-code-of-conduct-statements-and-guidelines/statements/590-2; Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada “Joint Statement on Resuscitative Interventions (Update 1995)” (1995) 153 Canadian Medical Association Journal 1652A; Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada, Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care” (1999), online: http://policybase.cma.ca/dbtw-wpd/CMAPolicy/PublicB.htm; Manitoba Law Reform Commission, Withholding or Withdrawing Life Sustaining Medical Treatment: Report #109 (2003), online:http://www.manitobalawreform.ca/pubs/archives.html.
20 Picard and Robertson,supra note 18 at 346.
21 For an interesting analysis of the standard of care in these situations as highlighted in Ontario CCB decisions, see: Laura Hawryluck, Robert Sibbald & Paula Chadwick, “The Standard of Care and Conflicts at the End of Life in Critical Care: Lessons from Medical-legal Crossroads and the Role of a Quasi-judicial Tribunal in Decision-making” (2013)
28 Journal of Critical Care 1055.
22 Alberta (Child, Youth, and Family Enhancement Act, Director) v DL, 2012 ABQB 562, at para 65, aff’d 2012 ABCA 275, leave to appeal to the Supreme Court of Canada dismissed, 2013 CanLII 76222 (SCC).
23 Hilary Young, “Why Withdrawing Life-Sustaining Treatment Should Not Require ‘Rasouli Consent’” (2012) 6 McGill JL & Health 54.
24 Rasouli, supranote 1 at para 59.
25 Ibid at para 70.
26 Ibid at para 108.
27 For examples of cases where courts recognize these decisions as inherently medical and grant deference to physicians, see e.g.: Maraachli v Fraser, 2011 ONSC 124, OJ No 2168; Child & Family Services of Central Manitoba v L(R.), (1997) 154 DLR (4th) 409,  4 WWR 29; C(LI), Re, 2006 ABQB 130, 59 Alta LR (4th); Children’s Aid Society of Ottawa-Carleton v C(M.),  WL 4432530 (Ont SCJ), CarswellOnt 5738; Rotaru v Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318; Alberta (Child, Youth, and Family Enhancement Act, Director) v DL, supra note 22.
28 Supra note 21.
29 Re J (A Minor) (Child In Care: Medical Treatment),  Fam 15 at 9,  3 WLR 507.