Last week Canada’s Supreme Court ruled that doctors could not unilaterally ignore a Toronto family’s decision to keep their near-dead husband and father on life support. In the same breath, however, the court also confirmed that, under the laws of Ontario, Canada’s most populous province, a group of government-appointed adjudicators could yet overrule the family’s choice. That tribunal, not the family or the doctors, has the ultimate power to pull the plug.
In other words: Canada has death panels.
I use that term advisedly. Former Republican vice presidential candidate Sarah Palin made it famous in the summer of 2009, when Congress was fighting over whether to pass Obamacare. As Republicans and Democrats continue to spar over health care, we should pause to wonder why millions of Canadians have come to accept the functional equivalent of an idea that almost sank health care reform even though, in this country, it was imaginary.
Ontario’s Health Care Consent Act has been on the books for nearly two decades. Like similar laws in many Canadian provinces—and American states—it sets out the process for making treatment decisions when a patient cannot provide or withhold her consent—when she is in a coma and on life support, for example. In such cases, power automatically shifts to a “substitute decision maker,” usually a close relative. When these family members disagree with a patient’s doctors, and when the doctors are nonetheless determined to act, the dispute generally goes to court, where it can take months or even years to resolve. That is how it works in other Canadian and American jurisdictions, anyway. In Ontario, by contrast, the provincial legislature decided in 1996 to create a quasijudicial tribunal, the Consent and Capacity Board, to make these life-and-death decisions more quickly. If a patient’s substitute decision maker withholds consent, then doctors may apply to the board—comprised of lawyers, mental health professionals, and community members—for a determination that the proposed treatment is in the patient’s best interest. If so, the board has the power to consent on the patient’s behalf.
At issue in the Ontario case was the fate of Hassan Rasouli, a retired engineer who has been comatose in a Toronto hospital since he suffered complications following brain surgery three years ago. When Rasouli’s doctors determined that he had no reasonable prospect of recovery, they sought to pull the plug. His family, convinced that Rasouli was slowly recovering, took his doctors to court.
Last Friday, they won. The Supreme Court of Canada ruled 5–2 that Ontario doctors may not decide to withhold treatment from patients in Rasouli’s condition without consent from the next-in-line decision maker. In Rasouli’s case, that is his wife. But, if she refuses consent, then her husband’s doctors can still ask for a ruling from Ontario’s Consent and Capacity Board. The Supreme Court confirmed last week that the board has the power to overrule her.
Most media coverage of the Canadian ruling has focused on the first part—that doctors cannot overrule family members—rather than the second—that an administrative tribunal can. Most Ontarians are evidently content with—or indifferent to, or simply ignorant of—the fact that the Consent and Capacity Board has the power to make difficult, even existential health care decisions on behalf of patients who are still (technically) alive. Americans, I expect, would be apoplectic.
In Canada, with our single-payer health care system, Rasouli’s situation has a very public bottom line: Should taxpayers foot the bill for his family’s indefinite goodbye?
But American critics of Canadian health care will declare that merely asking this question is unacceptable, unethical, even unthinkable—and that it proves that the Canadian system gives doctors a dangerous incentive to kill off their patients as quickly as possible. They are wrong. The Hippocratic Oath’s promise to do no harm still applies. But they are also only wrong in part. When taxpayers provide only a finite number of acute care beds in public hospitals, a patient whose life has all but ended, but whose family insists on keeping her on life support, is occupying precious space that might otherwise house a patient whose best years are still ahead.
The incentives in the American health care system point in the opposite direction. In the United States, keeping an all-but-dead patient alive on life support in a hospital bed generates income for the hospital, for as long as its bills get paid.
Ontario’s Consent and Capacity Board provides an objective process for resolving these difficult, end-of-life dilemmas. The board is instructed by law to focus on the patient’s best interests, not the health care system’s, or the government’s bottom line. Still, the law recognizes that, though it is usually in the patient’s best interests to be kept alive, it is not always so. As Rasouli’s doctors told the Supreme Court, prolonging his life would entail the risk of infection, bedsores, and organ failure. When recovery is out of the question, in other words, there may be fates worse than death.
Yet, the question remains: Who decides? Remember that, outside of Ontario, the resolution of these end-of-life disputes is generally reserved for judges. Ontario has simply replaced them with experts and wise community members. That’s a lead other jurisdictions should consider following when families’ emotions and doctors’ judgments collide.
Perhaps it is easier for Canadians to trust government-appointed panels, rather than judges, with decisions like these. For reasons that arguably go back to our respective foundings, Canadians tend to have more faith in our government and our bureaucratic processes than Americans do in theirs. Look at gun control: Canada lacks a constitutional guarantee of a right to bear arms in part because we never fought a war of independence that made one seem necessary. Similarly, when conservative politicians in the United States condemn Obamacare as a “government takeover” of health care, a lot of Canadians roll our eyes.
Still, the Rasouli family’s situation is familiar, and it will only become more commonplace. Modern medicine increasingly allows us to extend life indefinitely, and so the question is no longer whether we can “play God,” but when, how, and who should do so. When humanity demands haste, and justice demands expert knowledge, Ontario’s death panels offer a solution—whatever Sarah Palin says.
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