Course:Law3020/2014WT1/Group A

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Created by;

Ramez Alam,

Ravneet Arora,

Geea Atanase, and

Coral Atchison




Cuthbertson v Rasouli

Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19

This case is about an Ontario man who fell into a coma resulting from complications with minor brain surgery. The doctors treating Mr. Rasouli determined that he was in a persistent vegetative state, and recovery was not possible. Therefore, they wanted him to be withdrawn from life support. His wife, disagreeing with the physicians, sought an injunction to prevent the physicians from taking Mr. Rasouli off life support.

The Ontario Courts held that physicians require consent, either from the patient or the substitute decision makers, before they can take the patient off life support. If consent is not received, the physician’s option under the current law is to continue the treatment and go to the consent and capacity board for a ruling. The board must hear from both sides and factor in the patients religious background and wishes. The family want Mr. Rasouli’s beliefs considered and are satisfied that the matter be heard by the Consent and Capacity board. The hearing was held at the SCC on December 10, 2012.

Issues

1. The first is whether the HCCA governs the issue of withdrawal of life support with the consequence that Ms. Salasel’s consent to withdrawal of life support is required and that her refusal can be challenged only before the Board.
2. Only if we conclude that the HCCA does not apply, do we reach the second question — whether at common law this Court should order that Mr. Rasouli’s life support can be removed without Ms. Salasel’s consent.

Considered Legal Perspectives

Legal Perspective Leading Legal Philosopher
Natural Law Thomas Aquinas
Legal Positivism John Austin
Separation Thesis HLA Hart
System of Rights Ronald Dworkin
Liberty and Paternalism JS Mill
Law as Efficiency Susan Dimock
Feminist Jurisprudence Catharine MacKinnon