Cuthbertson v. Rasouli -- Appellants' Factum

A few days ago, the Appellants in Cuthbertson v. Rasouli filed their Factum with the Supreme Court of Canada.  Given some logical and factual errors in the Court of Appeals July 2011 opinion, the Appellants' argument is pretty strong.  But there are a few points that struck me as problematic:

• "The patient's beliefs are irrelevant to the question of whether a treatment offers a medical benefit. . . .  can only be based on the clinical judgment of a medical professional . . . ."  [para. 44]


• "The clinical judgment as to whether a treatment offers a medical benefit vary from physician to physician. Some physicians may be willing to offer . . . others are not . . . ."  [para 45]


• "[A]ny assertion that the Consent and Capacity Board provides an efficient mechanism to resolve these disputes is illusory."  [para 103]


• Appellants argue that there is no ethical or legal obligation to provide non-indicated treatment outside the standard of care.  To this extent, Ontario law is consistent with the law in most U.S. states that basically state this proposition expressly in their Health Care Decisions Acts.  But exactly which treatment is outside the standard of care?  Appellants propose that "the physician should be able to seek an immediate determination from the court . . . a summary trial of the issue on an expedited basis . . . ."  [para 108]  This is clearly more fair than leaving the decision with an institution's own ethics committee (as in Texas and as urged by the New Jersey medical associations in Betancourt).  But how quickly could such a proceeding really be accomplished?  And would there not be a right of appellate review resulting in the same delay problems plaguing the CCB?