The distinction between withholding and withdrawing treatment in Rasouli: providing a solution to an ethical problem

In contrast to this broad "health related purpose" standard for requiring SDM consent or Board approval for withdrawal of treatment, "medical benefit" is the standard McLachlin C.J. says is applied when determining "whether a given procedure should be offered to a patient" 8, that is, whether a given procedure can be withheld. According to McLachlin c.J,'s reasoning, "medical benefit" is a narrower standard than "health related purpose". Medical benefit is "a physician-made criterion for treatment".9 The Chief Justice says "this clinical term [medical benefit) has legal implications for the physician's standard of care" .10 If a treatment could give the patient some medical benefit, then the physician's standard of care requires that such treatment should be offered to the patient. According to the Chief Justice, the decision whether to offer, or to withhold, treatment involves the professional judgment of the physician, who must take into account "a contextual assessment of the patient's circumstances, including the patient's condition and prognosis, the expected result of treatment for that patient, and any risks of treatment for that patient" .11 The SDM would not be involved in making this assessment. One possible exception to the distinction between withholding and withdrawing life-sustaining treatment in the HCCA can be found in the discussion of plans of treatment. According to the definition of "plan of treatment" in the HCCA, such a plan may "provide for the withholding or withdrawal of treatment in light of the person's current health condition" .14 The HCCA then states that health practitioners "may" obtain "consent or refusal of consent" from an SDM for a plan of treatment. 15 In this instance, withholding and withdrawal of treatment are equivalent. But their equivalence in this instance does not undermine the distinction between withholding and withdrawal found elsewhere in [Hassan Rasouli]. Though an SDM may refuse consent for a plan of treatment that contains a proposal to withhold some form of care, this does not mean that consent must be sought for withholding procedures that fall outside of a plan of treatment as described in the HCCA. The HCCA also does not require that a decision to withhold treatment must be part of a plan of care, or even that physicians must seek consent for plans of treatment. It only states that physicians "may" obtain consent for such plans. 16 Though we believe that the comments in Rasouli about the difference be