Category: Elder Law
Last week, we blogged on serious deficiencies recently observed in long-term care facilities in Ontario and elsewhere in the country as a result of the Covid-19 pandemic. Improvement of conditions in long-term care homes has long been on the radar for many Canadian provinces even prior to Covid-19. The recent pandemic has highlighted many of the shortcomings of long-term care and provided the much-needed impetus for all levels of government to rethink ways to improve living conditions for residents.
One of the key issues highlighted by the pandemic is the reliance many residents have on family and friends to supply necessities such as food, clothing, and personal care items. Thinking about this led me to consider another important supply chain that may be suspended for residents of long-term care facilities; the supply of medical and recreational marijuana.
Prior to the Cannabis Act, S.C. 2018, c. 16, which came into effect on October 17, 2018, it was illegal to possess, obtain, produce, traffic, and import or export cannabis, except for cannabis for medical consumption. The new regime decriminalized the recreational use of cannabis, while regulations dealing with medical cannabis remained in place. The Cannabis Act was introduced for a number of reasons, one of which was to protect public health and safety to allow adults legal access to marijuana.
With the decriminalization of recreational marijuana came the loosening of stigmas surrounding marijuana consumption. A growing body of scientific studies suggest that marijuana presents a number of health benefits when used appropriately, such as relief of chronic pain, improved lung capacity, and the alleviation of feelings of anxiety and/or depression. The number of seniors using cannabis since 2012 has increased tenfold, with 52% of seniors reporting using cannabis exclusively for medical reasons, 24% for non-medical reasons, and 24% for both medical and non-medical. Unfortunately, accessing and storing marijuana is not as easy for seniors in long-term care as it is for most adults.
Notwithstanding the new regime, medical cannabis is still required to be purchased from a federally licensed producer by doctor’s order. For many residents, their primary care physician is the resident physician in their long-term care home. Naturally, not all practitioners are comfortable prescribing medical marijuana, meaning residents who prefer to consume marijuana must travel offsite to obtain such prescriptions. Even if a resident is able to obtain medical marijuana, individual long-term care facilities may have different policies in place regarding the delivery and storage of marijuana.
For some, the introduction of the Cannabis Act alleviated some of the above-noted issues by making it easier for family members and friends to purchase and deliver cannabis to residents. Given that OHIP does not cover medical marijuana, there is no financial downside to purchasing recreational cannabis (that is supplied by the Ontario Cannabis Store) rather than medical marijuana. Irrespective of their intention for use, residents in long-term care facilities should enjoy the same accessibility to marijuana as others.
Perhaps this is yet another issue that the government will consider when revitalizing and improving living standards for residents in long-term care facilities.
Thank you for reading!
A special thanks to Jane Meadus and Professor Lorian Hardcastle for their presentation on Marijuana Use in Assisted Living and Long-Term Care Facilities through the Canadian Bar Association on March 12, 2020.
A recent report of the Canadian Armed Forces into the state of five Ontario nursing homes has shed light on disturbing issues inside of the homes.
Early into the COVID state of emergency, the Canadian Armed Forces was asked to assist at 5 Ontario nursing homes, and 25 Quebec nursing homes. In the course of their duties, the Armed Forces noted serious shortcomings at the nursing homes. The report has led to calls for various action, including a coroner’s investigation, and possible police investigations.
It should be noted that there is a statutory duty on everyone to report any suspected impropriety occurring at a long-term care facility. Specifically, s. 24 of the Long Term Care Homes Act, 2007 requires that a person who has reasonable grounds to suspect any of the following has occurred or may occur to immediately report the suspicion and the reasons upon which it is based to the Director of Long Term Care:
- improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident;
- abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident;
- unlawful conduct that resulted in harm or a risk of harm to a resident;
- misuse or misappropriation of a resident’s money; or
- misuse or misappropriation of funding provided to a licensee.
While there is an obligation on everyone to report the suspicion of such conduct, it is only an offence if certain described individuals fail to report. These individuals include the licensee, an officer or director of any corporate licensee, a staff member, or any person who provides professional health, social work or social services to a resident or licensee.
Long term care licensees also have a statutory obligation to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the licensee or staff is investigated, and that “appropriate action” is taken in response to any incident. The results of the licensee’s investigation and the action taken in response are to be reported to the Director. Further, the Act requires that the licensee must establish a procedure for initiating complaints to the licensee and for how the licensee deals with the complaints.
The report of the Canadian Armed Forces will, hopefully, bring about positive change for a vulnerable, often voiceless segment of society. Others should (or in some cases, must) also come forward to report harmful conditions or conduct. If you see something, say something.
Thanks for reading.
Earlier this week, Ian Hull and I spoke at Osgoode Professional Development’s program on Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters.
During the program, in addition to discussing new execution options for wills and powers of attorney, the panel shared its thoughts on a number of considerations relevant to the preparation of powers of attorney during the pandemic, including some of the following:
- It may now be impractical to permit for decisions regarding personal care or property to be made only jointly by two or more attorneys acting together where the attorneys selected are not members of the same household.
- In light of ongoing travel restrictions, it may be increasingly important that the selected attorney(s) for property and/or personal care are local.
- It may be more difficult to access multiple medical professionals (or a specified medical professional) to confirm incapacity during a healthcare crisis. The provision regarding the circumstances in which a power of attorney is to become effective should accommodate potentially limited access to a specified physician or more medical professionals than necessary.
- It may be more important than ever to ensure that the original power of attorney documents (and/or copies) are physically accessible to the named attorney(s).
- The current circumstances present a unique opportunity to assist clients in updating outdated plans and ensuring that powers of attorney are put into place for those who do not have them already.
Even outside of the context of a pandemic, considering practical issues like those set out above when creating or updating an incapacity plan is a worthwhile exercise and may expose potential problems with the plan before it is finalized.
Thank you for reading.
Other blog entries that may be of interest:
COVID-19 has prompted innovation and legislative updates in terms of the way that lawyers can assist our clients with estate and incapacity planning. A new tool created by a professor at my alma matter, Queen’s University, has recently emerged to supplement formal planning by making it easier for clients to create end-of-life treatment plans and to discuss their end-of-life wishes with their families and health care teams.
The Plan Well Guide is a free online tool that allows users to formulate a “Dear Doctor letter”, which can be provided to a physician for discussion and can be reviewed with family members (or otherwise an attorney or guardian of personal care) to ensure an understanding of the person’s wishes during a health crisis. The website also includes other information and resources relevant to end-of-life decision making.
I went through the process of creating an end-of-life plan using this resource and found it to be user-friendly and straightforward. Some highlights of the Plan Well Guide include the following:
- There are prompts that ask whether a user has a Power of Attorney for Personal Care and Will in place, which may act as a prompt to obtain a lawyer’s assistance if necessary.
- The website illustrates the user’s wishes, with examples to confirm the accuracy of the information that the user inputs. Where the illustration is not consistent with the user’s actual wishes, the user can go back to modify priorities to better reflect their wishes.
- Quizzes to ensure proper understanding of terms such as ICU treatment, comfort care, and the nature of resuscitation.
- There are prompts for both outstanding questions or issues for discussion with a healthcare provider and explanations of wishes to provide those reading the document with a better understanding of the user’s rationale behind their wishes.
Especially in the midst of the current pandemic, tools like this that make end-of-life planning more accessible, while having the potential to expose deficiencies in incapacity or estate planning and encouraging an open discussion of wishes in terms of medical treatment, can be helpful resources.
Thank you for reading.
Other blog posts that may be of interest:
I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
Thanks for reading!
 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Thanks for reading!
Revocation of a Power of Attorney for Personal Care and its impact on substitute decision making under the Health Care Consent Act
Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:
- The incapable person’s guardian of the person;
- The incapable person’s attorney for personal care;
- The incapable person’s representative appointed by the Consent and Capacity Board;
- The incapable person’s spouse or partner;
- A child or parent of the incapable person, or an agency that replaces the parent’s authority;
- A parent of the person who only has a right of access;
- A brother or sister of the incapable person; and
- Any other relative of the incapable person.
Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.
Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).
As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.
For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.
I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.
In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.
Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.
In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker.
Thanks for reading!
For a related discussion on consent to treatment and the HCCA, click here.
Medical Assistance in Dying: Breaking down Bill C-7 and the Federal Government’s Proposed Amendments
At the end of January, my colleague, Nick Esterbauer, posted a blog series on recent developments in medical assistance in dying (MAID), with a particular focus on the September, 2019 decision of the Quebec Superior Court of Justice.
In Truchon c Procuruer général du Canada, the court declared sections of the federal and Quebec laws on medically-assisted dying, unconstitutional. The court took specific concern with the Criminal Code requirement that a natural death be “reasonably foreseeable” in order to be eligible for assisted death.
As discussed in Nick’s previous blog, rather than appeal the decision, the federal government announced that it would be proposing legislative amendments.
Those proposals were introduced by way of Bill C-7 to the House of Commons on February 24, 2020. In order to provide for assisted deaths where a natural death is not “reasonably foreseeable,” the Bill proposes the following changes and framework:
- two independent practitioners must confirm that all eligibility criteria is met, and, one of the two practitioners must have expertise in the condition causing the patient’s suffering;
- the person must be informed of, and offered consultations on all counselling, mental health, and disability supports, including community services and palliative care available to them; and
- the two practitioners must agree that the person requesting MAID has “appropriately considered” their options.
The Bill also proposes the following changes:
- The written request (whether the death is reasonably foreseeable or not), need be witnessed by one, rather than two people, which would now (if the Bill is passed) include those directly involved in providing health care services or personal care to the person making the request (except for those health care workers who will be providing the medical assistance in dying to the person, or who have provided an opinion regarding the eligibility criteria);
- The reflection period, previously 10-days in length, will be removed in relation to cases where death is reasonably foreseeable. Where natural death is not reasonably foreseeable, the Bill proposes a 90-day period of assessment (which can be shortened if the person’s loss of capacity is deemed imminent);
- In cases where death is reasonably foreseeable, patients would be able to waive the requirement to consent immediately before the procedure, if consent is given in advance, the procedure has been scheduled, and the person is informed that they may not be able to provide consent at the time of the procedure. In cases where death is not reasonably foreseeable, those patients will still need to confirm consent in order to receive the procedure;
- The Bill also seeks to clarify the information pharmacists (and pharmacist technicians) have to provide when dispensing a substance for an assisted death, as well as to expand the data collected by medical practitioners, those responsible for preliminary assessments regarding the patients eligibility, and pharmacists/technicians.
Parliamentary review of the Bill is scheduled to occur in June of this year. More information on medical assistance in dying can be found on the Government of Canada’s webpage here. For a discussion on the possible impact MAID may have on a will challenge, click here.
Thanks for reading!
Other blogs that may be of interest:
In many respects the law of Quebec differs from that of other provinces. In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.
In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable. The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable. The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed. The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome. Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.
The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms. While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.
Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter. The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”
The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional. The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.
Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional. Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect. Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.
As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.
Thank you for reading,
Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.
Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history. Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.
As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria. Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered. Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.
In some parts of the country, MAID is already accessed at significant levels. In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.
Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.
Thank you for reading,
Other blog posts that may be of interest: