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Introduction
Following surgery to remove a brain tumor, Mr. Hassan Rasouli developed meningitis leading to severe brain injury. He was declared to be in a persistent vegetative state, and then later a minimally conscious state, which means there was minimal cortical activity and little evidence of a remaining conscious mind. Given this, Mr. Rasouli's doctors decided the best course of action would be to remove him from life support, including artificial nutrition and a ventilator. However, Mr. Rasouli's wife, acting as his Substitute Decision Maker ("SDM"), did not consent to this course of action. This challenge was presented before the courts in the case of Cutherbertson v. Rasouli ("Rasouli"), and was eventually ruled upon by the Supreme Court of Canada in October 2013.1 The Health Care Consent Act (1996) ("HCCA") of Ontario states that all treatment requires the consent of the patient or their SDM, or failing that. an application to and approval by the province's Consent and Capacity Board.2 The doctors argued that the removal of life support was not in fact treatment, but the removal thereof. and consequently not subject to the HCCA.3 Furthermore, the doctors argued that in cases where continued treatment is futile, the HCCA has no jurisdiction, which would give the physicians authority to withdraw life support without patient or SDM consent.4 The Supreme Court of Canada found that the withdrawal of treatment did, in fact, fall under the broad category of "treatment" and was therefore subject to all of the limitations of physician authority and dispute resolution mechanisms outlined in the HCCA. 5
Though the Rasouli decision is primarily concerned with the withdrawal of treatment under the HCCA, this article examines the issue of withholding potentially life-sustaining treatment as it is discussed in the Rasouli decision. We argue that the Chief Justice's decision in Rasouli makes an apparent distinction between withholding treatment and withdrawing treatment such that potentially life-sustaining treatment may be withheld unilaterally (Le. without consent or approval by the Consent and Capacity Board) even though it would be contrary to the HCCA to withdraw such treatment unilaterally. Furthermore, we argue it is ethically problematic to establish a legal distinction between withholding and withdrawing treatment such that it is more difficult for clinicians to withdraw care than...