Withholding and Withdrawal of Potentially Life-sustaining Treatment

What does withholding of potentially life-sustaining treatment mean?
Withholding potentially life-sustaining treatment means not starting treatment that has the potential to sustain the life of a patient – for example, not attempting cardiopulmonary resuscitation (CPR) when a patient’s heart suddenly stops beating.
What does “withdrawal of potentially life-sustaining treatment” mean?
Withdrawal of potentially life-sustaining treatment means stopping treatment that has the potential to sustain the life of a patient — for example, stopping ventilatory support for a patient in a persistent vegetative state.
Is the withholding and withdrawal of potentially life-sustaining treatment legal in Canada?
Yes, both can be legal.  In the 1993 Supreme Court of Canada case, Rodriguez v. British Columbia (Attorney General), Justice Sopinka, writing for a majority of the Supreme Court of Canada, made three statements to the effect that there is a common law right to refuse even potentially life-sustaining treatment:

… That there is a right to choose how one’s body will be dealt with, even in the context of beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses constitutes battery, and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn.

[…]

Canadian courts have recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued (Ciarlariello v. Schacter, [1993] 2 S.C.R. 119). This right has been specifically recognized to exist even if the withdrawal from or refusal of treatment may result in death (Nancy B. v. Hotel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que. S.C.); Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.)). …

[…]

Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient’s instructions to discontinue treatment. To continue to treat the patient when the patient has withdrawn consent to that treatment constitutes battery (Ciarlariello and Nancy B., supra). …

More recently, Justice Smith characterized withholding and withdrawal of potentially life-sustaining treatment as “conventionally ethical end-of-life practice[s]” (at 186) (Carter v Canada (Attorney General), 2012 BCSC 886).

Must healthcare providers respect refusals made by patients or their substitute decision-makers?
The answer to this question depends upon several variables:

the patient is competent
If the patient is competent and making a free and informed refusal, health care providers must respect this refusal.
the patient is incompetent but has a valid advance directive
If the patient has expressed a treatment refusal within a valid advance directive, healthcare providers must respect this refusal.  If the patient has appointed a proxy through a proxy directive, health care providers must respect a free and informed refusal by the proxy (unless the healthcare provider believes the proxy is not acting in accordance with their powers under the proxy directive).  Provincial legislation dictates the requirements for valid advance directives.  For more information on advance directives, visit the “Advance Directives” page.
the patient is a mature minor
If the patient is a minor who understands and appreciates the consequences of the decision to be made and has sufficient independence, under common law their decision must be respected.  This common law rule can be superseded by statute (as in British Columbia, Alberta, Saskatchewan, Manitoba and Newfoundland and Labrador through their child protection statutes).  However, in accordance with the Supreme Court of Canada’s ruling in A.C. v Manitoba (Director of Child and Family Services), these statutes should be interpreted such that acting in the minor’s “best interests” under the legislation is understood to include respect for the minor’s decision-making if the minor is sufficiently mature and independent.  In the context of the withholding and withdrawal of potentially life-sustaining treatment, the scrutiny that the court will apply to the minor’s maturity and independence will be high given the seriousness of the decision’s potential impact on the minor’s life or health.  In provinces and territories without such statutes, the common law mature minor rule will prevail.
the patient is an immature minor
If the patient is an immature minor, then the healthcare provider must respect a substitute decision-maker’s refusal to consent to treatment unless the health care provider believes that the substitute decision-maker is not acting in the patient’s best interests.  In such a case, the healthcare provider should seek an order to treat from the courts.
Do healthcare providers have the authority to withhold or withdraw potentially life-sustaining treatment against the wishes or without the knowledge of a patient or their substitute decision-maker?
The law in Canada on the unilateral withholding and withdrawal of potentially life-sustaining treatment by a healthcare provider is not yet clear.  Some courts have held that healthcare providers do not have the authority to unilaterally withhold or withdraw potentially life-sustaining treatment, others have said that they do, and still others have said that the law is unsettled or they have remained silent on the issue.

On October 18, 2013 some clarity was brought to the issue when the Supreme Court of Canada released its decision in Brian Cuthbertson, et al. v Hassan Rasouli by his Litigation Guardian and Substitute Decision Maker, Parichehr Salasel.  Here, a majority of the SCC found that Ontario’s health care consent legislation requires consent from a patient’s substitute decision-maker prior to the withdrawal of potentially life-sustaining treatment.  Click here for the decisions of the trial court, the Ontario Court of Appeal, and the Supreme Court of Canada, as well as the materials filed in court at both levels of appeal.  Unfortunately, this decision provides little guidance for provinces and territories other than Ontario as it was based on an interpretation of the Ontario legislation (which others do not share).  More litigation, or preferably action by provincial legislatures, is needed to resolve the ongoing confusion and controversy.
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