One and a half years after immigrating to Canada, the Rasouli-Salasel family find themselves about to face the Supreme Court of Canada in a case that has put end-of-life decisions in the forefront.
The family moved to Canada in April, 2010. Four months later, in August, Hassan Rasouli felt that the hearing in his right ear was diminishing.
An MRI test showed that a growing tumor had formed in a dangerous position in his brain. On October 6, 2010, Rasouli rode the TTC to Sunnybrook Health Sciences Centre to undergo surgery the next day.
“The doctors said that they were experienced with this sort of procedure and gave him a 100 per cent chance of recovery,” Rasouli’s wife, Parichehr Salasel told Salam Toronto.
“After the surgery, the doctors said everything went well and they had removed most of the tumor minus a little piece that was tough to remove due to it being dangerously close to the brain and its nerves,” said Salasel. “We were very happy to hear the news.”
Salasel said, despite the surgery being a success, the two doctors who performed the surgery, Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld, told her that the anaesthetist had a hard time putting him to sleep and subsequently inserted intubation for oxygen. They also said that some swelling had occurred as a result, according to Salasel.
“The morning after the surgery, his eyes were open and he was able to squeeze my fingers,” she said. “He was attentive but was also drowsy and dizzy.”
Day by day, his health deteriorated, Salasel said.
On Oct. 16, 2010, Rasouli was put on a mechanical ventilator at Sunnybrook’s Critical Care Unit (CCU) and has since been fed through a tube inserted into his stomach.
Mr. Rasouli’s coma was caused by post-operative bacterial meningitis.
The physicians now argue that Mr. Rasouli is in a persistent vegetative state (PVS), and that there is no realistic hope of medical recovery. They also say that he will eventually die of complications related to being bedridden in the current state he is in.
After several meetings since Mr. Rasouli fell into a coma, the hospital has tried to convince Salasel – Mr. Rasouli’s substitute decision-maker – that nothing can be done to restore the damage.
The doctors informed Ms. Salasel, who was a physician in Iran and is a member of the Muslim faith, of the diagnosis and their intention to discontinue the mechanical intervention and provide palliative care only, with Ms. Salasel’s approval.
“We had a very heavy and intense meeting with two of the CCU doctors where they told us that they are forced to remove the ventilator whether we like it or not,” said Salasel, adding that the hospital told her to get a lawyer if she disagreed.
Thus began the legal battle to keep Mr. Rasouli, a former mechanical engineer in Iran, alive. Hassan Rasouli was represented by his decision-maker, Ms. Salasel and lawyer J. Gardner Hodder. Hodder argued that the doctors did not have the ability to cut off life support without the consent of either the acting decision-maker or the Consent and Capacity Board (CCB) – an independent tribunal set up by the government of Ontario underneath the Health Care Consent Act.
Ontario Supreme Court of Justice Susan Himel heard the three-day case on February 25, 26, and March 3, 2011. The main question raised was whether consent is required for the withdrawal of treatment (in this case the ventilator) in an end of life situation.
The applicants, Cutherbertson and Rubenfeld, argued that they are not required to continue to provide treatment which is of no benefit to a patient, with or without consent. The definition of what constitutes treatment turned out to be a significant factor in the case.
In situations that are non-life-threatening, doctors can stop treatment they believe is ineffective without the approval of the province’s CCB. But since the removal of Rasouli’s treatment would likely result in his death, the removal is not consistent with the definition of treatment and would therefore need consent.
“We asked the court to make an order that they not withdraw life support unless and until they went to the CCB,” Hodder told Salam Toronto. “(The court) made the order.”
Dr. Cutherbertson and Dr. Rubenfeld thought otherwise and sought to appeal Justice Himel’s decision. But the court of appeal agreed with Justice Himel that doctors had to go to the CCB or Ms. Salasel for consent.
The two doctors have now taken the ruling to the Supreme Court of Canada, arguing that the previous judges, Himel and those involved in the appeal, were wrong, says Hodder.
Meanwhile, Mr. Rasouli is making progress, says Salasel.
“He is aware of his surroundings,” she said. “He responds to our commands. We ask him to open his mouth for us to give him some water and he does. I ask him to show me his tongue, he does.”
The physicians argue that “the behaviour of Mr. Rasouli which may include movements of limbs, tearing, raising an eye-brow, blinking and other responses which the family may believe is evidence that he is gaining consciousness are really examples of non-volitional reflex responses which are consistent with the diagnosis of PVS,” a court document said.
“He speaks with his eyes,” Mojgan Rasouli told Salam Toronto.
The Rasouli-Salasel family has been through a storm of emotions since they received the news of the tumor. Mehran Rasouli, son of Hassan and Parichehr, left Ottawa, where he was studying, to support his family and is now suffering from depression. He was not available for the interview with Salam Toronto.
Now it’s Ms. Salasel who makes the daily trek to Sunnybrook on the TTC, both as support for her husband and for the hospital. She is working as a volunteer there.
“Even after one year of him being in a coma, I still believe he will wake up and get better,” said Salasel. “I’m not losing hope.”
There has not been a date set for the Supreme Court of Canada hearing.