- "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?
Wednesday, February 22, 2012
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:
Thaddeus Mason Pope is Director of the Health Law Institute and Professor of Law and at Mitchell Hamline School of Law in Saint Paul, Minnesota. <> <> He is also an Adjunct Professor with the Australian Centre for Health Law Research at Queensland University of Technology; Adjunct Associate Professor with the Alden March Bioethics Institute at Albany Medical College; and Visiting Professor of Medical Jurisprudence at St. Georges University. <> <> Professor Pope is an internationally recognized expert in bioethics and medical ethics. He has over 120 publications in: leading medical journals, law reviews, bar journals, nursing journals, bioethics journals, and book chapters. He also coauthors the definitive 1500-page treatise The Right to Die: The Law of End-of-Life Decisionmaking.