Improving Dispute Resolution for the Last Stages of Life

October 20, 2021 Suzana Popovic-Montag Capacity, Elder Law, Estate Planning, Health / Medical, Power of Attorney Tags: , , , , , , , , , , 0 Comments

On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).

One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:

Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.

Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.

However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:

  • Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
  • The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
    • there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
    • a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
    • a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
  •  Some patients also die before their applications are heard by the Consent and Capacity Board.
  • It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
  • Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.

After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:

  • The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
  • A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
  • Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.

At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:

Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.

Steps that you can take today include:

  • appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
  • discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
  • completing an advance directive or “living will,” which sets out your wishes in terms of future care.

Thanks for reading, and have a great day!

Suzana Popovic-Montag

 

For further reading on advance care planning, see the following blog posts:

A Gift to Consider: The Importance of Proper Advanced Medical Care Planning

The ultimate “selfie”: Video record your health care wishes

Advance Care Planning for COVID-19

Encouraging Discussion About End-of-Life Wishes

Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity

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