The Limits of Consent: Do patients have a right to futile treatment?

Two recent Ontario cases help shed light on patients’ rights to life support and resuscitation.


“Who decides whether I live or die?” This question lingers in the minds of those of us who support the right-to-die movement in Canada.

While rules vary by province, competent adults, or their substitute decision-makers, can generally refuse any medical test, treatment or intervention.

But is the reverse true? Can a patient demand a particular treatment from a doctor, even against the doctor’s judgment? Two recent cases in Ontario offer critical clues about patients’ rights to life support and resuscitation.

Hassan Rasouli: Withdrawal of treatment

In 2010, Hassan Rasouli fell into a coma after developing bacterial meningitis following brain surgery. With Rasouli being kept alive by feeding tubes and a ventilator, doctors at Toronto’s Sunnybrook Hospital informed his family that he had no chance of recovery and advised that life support be discontinued.

When Rasouli’s wife refused consent to remove life support, a legal battle ensued that would rise all the way to the Supreme Court. Rasouli’s family argued that life support could not be discontinued without their consent. Rasouli’s doctors responded that they could not be compelled to continue treatment they deemed futile.

The Supreme Court ruled in favour of keeping Rasouli on life support, but this was not a black and white case. The Court found that withdrawal of life support is “treatment” in Ontario. Because consent is required for treatment, the doctors could not remove Rasouli from life support without it.

The Supreme Court’s decision did highlight another option for doctors. Ontario has a Consent and Capacity Board, which has the authority to settle questions of treatment and capacity. If a physician faces a similar situation in the future, he or she can take their case to the Consent and Capacity Board, where the panel can rule on whether the treatment is warranted.

Douglas DeGuerre: Demanding futile treatment

In 2008, Douglas DeGuerre was admitted to hospital — Sunnybrook in Toronto, as fate would have it — to treat the spreading gangrene in his legs. DeGuerre and his daughter, Joy Wawrzyniak, who would act as his substitute decision-maker, established with his doctors that he was to be designated “full code,” indicating he was to be resuscitated in the event of a cardiac or respiratory arrest. 

In the following weeks, DeGuerre’s condition declined, and he would eventually need to have his legs amputated above the knee. Unbeknownst to Wawrzyniak, DeGuerre’s doctors unilaterally changed his status from “full code” to “do not resuscitate.” 

When he entered cardiac arrest, Wawrzyniak implored the doctors to resuscitate her father. However, their belief was that to do so would be futile. They did not attempt to revive him.

Wawrzyniak lodged a complaint with the College of Physicians and Surgeons of Ontario (CPSO), where she argued the doctor’s needed to obtain consent to change her father’s DNR status. In June 2015, the CPSO cautioned the doctors for their failure to properly notify Wawrzyniak of the change to her father’s DNR status. The reprimand related to communication only. The CPSO insisted, as they had in previous appeals, that the doctors had exercised proper clinical judgment.

Wawrzyniak argued that Rasouli established a requirement for doctors to obtain consent for a DNR order. The CPSO’s statement does not concur and argues that the use of DNR orders “remains a grey area.”

What do these cases tell us?

The Rasouli decision at the Supreme Court informed us about the need for physicians to seek consent to remove life support, either from the patient, their substitute decision-maker or ultimately through an arbitrator such as the Ontario Consent and Capacity Board. Douglas DeGuerre’s ordeal shows that, while consent is required for treatment to be administered, it is unlikely that we can demand treatment deemed futile by doctors.

—Andrew Schipper
Law student and DWD Canada volunteer

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