In addressing this, the court must balance the interests of the patient against those of society, and consider as well the issue of resources in a public healthcare system. “The allocation of scarce resources is a moral issue,” says Prof. Downie. “It is one that we as a society must grapple with, and we should do so in a manner that is transparent and for which decision-makers should be held accountable. Otherwise we risk unfairness and discrimination.”
Of course, most people would not want to be kept alive in a hospital on chronic ventilation, and most families would not want to cling to a life that has been so horrifically reduced. Usually a patient’s family, and the attending physician, resolve differences over end-of-life care decisions, making Mr. Rasouli’s case highly unusual.
Critics of the Consent and Capacity Board rightly point out that it was set up to address the health concerns of the mentally ill, not the dying. It is most often concerned with cases that look at someone’s mental ability to give or refuse consent for treatment. One-third of the board’s members are lawyers; one-third psychiatrists; and the rest are members of the public. The views, advice and experience of physicians who work in critical-care medicine, palliative care and other related specialties would add another layer of expertise and sound judgment to the board. Here, the court has a chance to offer clear policy guidance.
Not long ago, Mr. Rasouli’s condition changed. He can now make a “thumb’s-up” gesture in response to requests and has been rediagnosed as minimally conscious. This raises the possibility he has some awareness, although initial tests show he is not “locked in”, a condition where a person cannot move or speak but is conscious of what is going on around them. Still, the changed diagnosis could influence the decision about his care; it serves to underscores the need for there to be a better way to resolve differences than through costly litigation, which only adds to the trauma and pain for the family.