Ontario Courts and Expedited Medical Futility Hearings

A few weeks ago, I briefly discussed a proposal in the Appellant's Brief to the Supreme Court of Canada in Cuthbertson v. Rasouli.  Appellants argue that there is no ethical or legal obligation to provide non-indicated treatment outside the standard of care.  To determine 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 proposed mechanism is certainly fairer than leaving the decision with an institution's own ethics committee (as in Texas).  But will this proposal work?  There is broad consensus that what is medically appropriate in this context is heavily value laden.  Consequently, determining the standard of care will entail more than just hearing from expert witnesses as to critical care practice.  Instead, the court is actually making a societal and public policy judgment.  While this is paradigmatically a job for a legislature and not a court, courts regularly make and should make such judgments.  It is less clear that they can or should make them on an expedited basis.