Category: Health / Medical
The twentieth anniversary of 9/11 took place this past weekend. It was a day of reflection, heavy with the sentiment that we must “never forget” what transpired. There were endless stories on the heroism of first responders in Ground Zero but the story that gave me the most pause was this Washington Post article on “The Mystery of 9/11 and Dementia”.
The article by Patrick Hruby starts with Ron Kirchner. Ron was a firefighter in Queens. He was in his thirties on September 11, 2001. By 2009, Ron was retired on disability. He had asthma and lung disease that were both linked to Ground Zero exposure. By 2015, Ron was diagnosed with dementia. He was only 52 years old at the time. Ron’s neurologist thought that his brain scan resembled the brain scan of an 85-year old. Ron now requires full-time care as he has trouble speaking, eating, and bathing.
In one study, 9/11 first responders were found to report instances of cognitive impairment three times the rate of people in their 70’s.
In another study, first responders with PTSD and cognitive impairments were found to have both blood and brain protein abnormalities as those with Alzheimer’s.
The article notes that cognitive ailments are not currently covered under the 9/11 Health and Compensation Act, a federal statute that provides health care and compensation to responders, survivors, and victims. In order to add cognitive ailments to the Act, more research is needed to show that the condition is substantially likely caused by 9/11 exposures.
Hopefully, with the media attention on 9/11 first responders and their needs, funding for all necessary research will be made available to effectively help this tremendous group of individuals.
Thanks for reading.
New Medical Assistance in Dying (MAID) legislation came into force on March 17, 2021, which provisions include expanding eligibility to those whose death is not reasonably foreseeable. Although the new legislation temporarily, until March 17, 2023, does not allow those with a mental illness as their sole underlying medical condition to be eligible for MAID, the statute obliges the Minister of Health and Minister of Justice to initiate an independent expert review “respecting recommended protocols, guidance and safeguards to apply to requests for medical assistance in dying by persons who have a mental illness.”
Further to this mandate, the Government of Canada recently announced that an Expert Panel on MAID and Mental Illness has been established to undertake the review. The announcement includes a link to the member biographies, and describes them as reflecting “a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.”
The Government news release also highlights the critical importance of this work, with the Minister of Health quoted as saying:
“Protecting the vulnerable, including those suffering from mental illness or in crisis, is a priority for the Government of Canada. That is why the work of the Expert Panel is so important to me. The Expert Panel will provide us with independent, objective advice on safe and appropriate ways to assess and provide MAID to individuals living with mental illness who are seeking this avenue to end their suffering. The work of the Expert Panel will be difficult, but will provide Canadians with reassurances that we are balancing justice with compassion.”
The Expert Panel’s final report containing its recommendations is due by March 17, 2022. We will be sure to keep an eye out for further updates on this issue.
Thanks for reading and have a great day,
Over the past two decades, and especially in recent years, filmmakers have used their medium of choice to produce compelling and exceptionally realistic depictions of the effects of dementia on an individual and their loved ones. From Dame Judi Dench in Iris to Julianne Moore in Still Alice, depictions of the struggle, exhaustion, and emotional toll incurred in the months and years following diagnosis have been lauded, if not for the performances, then for the devastating impact they elicit.
Often, however, these struggles are viewed as a conflict to be managed as part of the broader film, with the focus typically being on the most prominent symptom of dementia, memory loss. The latest entry in the list of films depicting dementia, 2020’s The Father, differs in that it portrays the condition not only in the context of the significant emotional responses that it elicits, inclusive of memory loss, but also as a shared experience across all members of the individual’s inner social circle, including the individual themselves.
A recent op-ed in the Toronto Star by author and gerontologist Dan Levitt posits that the film offers a distinctly more personal narrative, and one that is perhaps uncomfortably relatable to those who have experienced it firsthand. Levitt contends that the film does not shy away from depictions of raw emotion that span the spectrum, from denial to anger, distress to depression.
To those who have experienced that range of emotions firsthand, or have been called on to counsel or advise those who have, those experiences are often held out as the most challenging and difficult experiences to manage. The film confronts these experiences and, as Levitt notes, does so with a view to bringing broader attention and compassion to the shared experiences between patient, loved ones, and caregivers, and to create a more positive public discourse.
Thanks for reading, and congratulations Sir Anthony Hopkins on a well-deserved award.
Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity
Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.
Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:
- a sample power of attorney for personal care;
- a sample advanced health care directive;
- a sample personal directive;
- a sample ‘Dear Doctor’ letter; and
- a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.
Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.
What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.
Thanks for reading!
As estates practitioners know well, the medication that an individual takes could reflect underlying conditions that affect mental capacity. High doses of pain medications or other medication prescribed to treat serious physical ailments may also impact a person’s cognition.
A recent article on Considerable highlights the impact that certain common medications may have on mental capacity. An estimated 25% of seniors take “anticholinergic” drugs to treat a variety of common issues, including allergies, insomnia, and asthma. These medications are known to target acetylcholine, a chemical messenger that plays an important role in concentration, cognition, and memory. Some drugs (including over-the-counter medications as well as those for which a prescription is required) impact acetylcholine levels more than others and, when they are taken together, can have a cumulative effect. As a result, high doses of anticholinergic drugs, which are often believed to have only inconsequential side effects, can interfere with brain messaging and result in symptoms consistent with dementia.
The article refers to a patient whose score on a Mini-Mental Status Examination increasing from 11 to 28 out of 30 after a readjustment of her medication, which included common antihistamines and medication for mood and gastrointestinal issues. Further research is being conducted on the short-term and long-term effects of anticholinergic use, as there is concern that prolonged use may cause irreversible cognitive decline.
As our readers know, due to the nature of capacity standards and importance of reviewing capacity on a case-by-case basis at the time of the relevant decision or instructions, it may be worthwhile to consider whether medication, even that commonly prescribed to seniors, may be a contributing factor.
Thank you for reading.
Other blog entries that may be of interest:
Who is ready for some good news? Our firm has been interested in the issue of organ donation for some time now. In 2012, we blogged about whether P.E.I. may be the first province in Canada to automatically enroll all of its people as organ donors until you chose to actively “opt-out”. In 2014 and 2019, we blogged about Nova Scotia’s efforts in this regard.
Today, we are happy to report that this is now the new reality in Nova Scotia as of January 18, 2021.
The Human Organ Tissue and Donation Act was passed in April, 2019. The Act, when it came into effect this Monday, meant that everyone in Nova Scotia are now considered to a potential organ donor until they “opt-out”. This new “opt-out” system is the first of its kind in North America according to the Huffington Post. Ontario, like everywhere else, has an “opt-in” program where you have to actively sign up in order to be considered as a potential organ donor whereas the “opt-out” system is the opposite of that. Nova Scotia is hoping that this will dramatically increase the rate of organ donation in the province like the 35% increase that has been noted in certain European countries.
In order to balance and respect the wishes of each individual, the director of the organ donation program has indicated that the known wishes of an individual will be respected even if he/she has not formally opted out.
This is an issue that is personally meaningful to me because of the statistics surrounding organ donors and organ recipients of colour. People of colour tend to be underrepresented within “opt-in” systems of organ donation. According to the Gift of Life, while race and ethnicity is not determinative of a match, a match is more likely to be found within one’s own ethnic community because of compatible blood types and tissue markers. 60% of patients waiting for a transplant are from communities of colour. I, myself, am registered with the Gift of Life and I can attest to how easy and painless it was to sign up.
Thanks for reading!
Jennifer Philpott’s blog post on the Initial Recommendations from Ontario’s Long-Term Care COVID-19 Commission explains that the mandate of the Ontario Long-Term Care COVID-19 Commission (the “Commission”) is “to investigate how and why COVID-19 spread in long-term care (“LTC”) homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
As noted in our previous blog post, Hull & Hull LLP recognizes and commends the Commission, led by the Honourable Justice Frank N. Marrocco, with John E. Callaghan and Kate McGrann as Commission Co-Lead Counsel, for their hard work and efforts towards protecting some of the most vulnerable citizens in our province.
Since the Commission’s First Interim Letter dated October 23, 2020, over 100 homes are experiencing an outbreak and more than 300 residents have died. On December 4, 2020, the Commission released their Second Interim Letter which focuses on resident care and on in-home leadership, and provides the Ministry of Long-Term Care (the “Ministry”) with various the following recommendations:
- Leadership and Accountability in Long-Term Care Homes
The Commission notes that the fundamental principle in the Long-Term Care Home Act states that
“A home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety, and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”
The Commission emphasized that leadership matters. They found that in homes where leaders were visible and provided clarity around staff roles and responsibilities fared better than those where the leadership was less engaged.
Amongst other things, the Commission found that there was confusion around who was responsible for maintaining resident quality of care in LTC homes during the pandemic and that it was unclear as to whose responsibility it was in the LTC home’s leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Director. The Commission also found that these leaders were not always accessible or on-site.
The Commission recommended that there should be a clear lead for quality of care amongst the leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Care in each LTC home, and that this individual must be on-site each day in a full-time position and should be held accountable for resident quality of care. Further, the Commission noted that the Province should provide the financial resources necessary to effectively support the lead for quality of care in carrying of their role and responsibilities.
- Performance Indicators
The Commission recommended using performance indicators to assess each home’s readiness to prevent and manage COVID-19 outbreaks. Specifically, the Commission found that while the current six clinical indicators tracked in the LTC home performance reports are a good first step in advancing transparency and flagging issues in LTC homes, this data does not provide other important insight on the quality of care received by residents and their experience in the home.
The Commission noted that indicators in areas of staffing (such as staffing mix, ration of residents to staff and ration of residents to staff with clinical expertise, level of staff engagement, etc.), PPE supplies and resident and family satisfaction with care at the home should be monitored and publically reported.
The Commission recommended that the LTC home performance reports should include performance metrics such as resident and family satisfaction, staff engagement, staging levels, and supply of PPE, as well as recommended that the home performance reports be publically posted in a single and centralized location and be updated more frequently, so that the public and other homes can assess and compare homes to one another as well as search and access a comprehensive picture of each home’s performance.
The Commission also recommended focused inspections to assess compliance with measures known to reduce the impact of the virus. Specifically, several issues have surfaced that the Commission believes require urgent attention, including:
1. The discontinuance of Resident Quality Inspections (“RQIs”) in all LTC homes
Although in 2013, the Ministry of Labour, Training, Skills and Developed (“MLTSD”) recognized that comprehensive inspections would help identify systemic issues and committed to completing an RQI in every home by the end of 2014, in response to the Auditor General’s 2015 recommendation “to prioritize comprehensive inspections based on LTC homes’ complaints and critical incidents and other risk factors”, in order to clear a backlog of almost 3,000 complaints and critical incident inspections, the Ministry introduced a risk-based approach to inspection. Although all LTC homes were still to be inspected every year, 329 LTC homes received an RQI in 2018, 27 homes received an RQI in 2019 and from March 1 to October 15, 2020 only 11 LTC homes received a proactive inspection. This reduction in RQIs, which are intended to provide a holistic review of operations in the homes, left the Ministry with an incomplete picture of the state of Infection Prevention and Control (“IPAC”) and emergency preparedness.
The Commission recommended to reintroduce annual Resident Quality Inspections for all LTC homes and require all reactive inspections occurring during the pandemic to include an IPAC Program review. The Commission also recommended that the Ministry request an appropriate funding in the upcoming 2021 provincial budget to hire and train inspectors to implement annual RQIs.
The Commission was also concerned with the lack of enforcement and follow-up verification of compliance with Orders issued by the Ministry. From 2018 to 2020, Plan of Care has been identified as the top area of non-compliance identified from complaint inspections. The Commission noted that IPAC issues rarely made it to the list of the top ten areas of non-compliances, showing that it was rarely a focus of any inspections.
The Commission recommended that the Ministry improve enforcement by prioritizing timely responses to non-compliance with IPAC and Plan of Care Orders.
3. Coordination of Inspections
The commission noted that there was an absence of a cohesive approach to inspections completed by the MLTC, MLTSD and Public Health Units, which likely occurred because inspectors from all three organizations tend to carry out their duties independently. This disjointed approached proved detrimental for IPAC in LTC homes and with the near elimination of RQIs and minimal inspections initiated by IPAC complaints or critical incidents, LTC inspections provided little help in proactively identifying and dressing aps in infection control inside homes.
The Commission recommended that steps be taken to eliminate the siloed approach to MLTC, MLTSD and Public Health inspections through cross-training, the establishment of a centralized system of report sharing and inspector teams to address specific cross-cutting issues.
Thank you for reading.
Ontario’s Long-Term Care COVID-19 Commission (the “Commission”) was formed in July 2020. The Commission’s mandate is “to investigate how and why COVID-19 spread in long-term care homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
The Commission’s work is unique as it is conducting inquiries and providing recommendations to the Government of Ontario on an ongoing basis. Led by The Honourable Justice Frank N. Marrocco and Commission Counsel, John E. Callaghan and Kate McGrann, the Commission has met with over 200 individuals including experts, associations, unions, long-term care home operators, residents, families, and government officials. The Commission’s final report is due in April 2021.
The Commission’s First Interim Letter was released on October 23, 2020 and provided the following recommendations for the Ministry of Long-Term Care (the “Ministry”) to consider:
(1) Increase Staffing
Prior to the COVID-19 Pandemic, staffing challenges in long-term care facilities were well documented (for instance, in The Honourable Justice Eileen Gillese’s 2019 report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care System). The Commission recommends that the Ministry ensure that recruitment of long-term care staff focuses on diverse hiring practices to meet it’s residents’ acuity and complex care needs.
Further, the Commission recommends that more full-time care positions are created to increase stability amongst and retention of staff, which would further the continuity of care for residents. The Commission suggests that the Ministry implement the findings of its Long-Term Care Staffing Study, which was released in July 2020. These findings include providing at least four hours of direct care per resident per day and increasing funding to hire more nurses and PSWs to increase the staff to resident ration in long-term care facilities.
The Commission acknowledged that family members and caregivers play an essential role and provide “not just physical care needs but the psycho-social well-being of residents.” In that regard, the Commission recommends that long-term care facilities provide family members and caregivers “ongoing, safe and managed access to long-term care residents.”
(2) Strengthen Healthcare Sector Relationships and Collaboration
From its inquiries, the Commission uncovered that communities where long-term care facilities had pre-existing relationships with hospitals and public health units were better equipped to prevent or control COVID-19 outbreaks. On this basis, the Commission recommends that long-term care facilities likely to encounter difficulties (i.e. high infection rates in the community; past outbreaks; etc.) should implement a “collaboration model” between the facility, local hospital(s), and public health unit(s). The Commission’s letter urges the Ministry and the Ministry of Health to take a proactive approach and facilitate the collaboration model through defined supports and surge capacity for each long-term care home.
(3) Improve Infection Prevention and Control (“IPAC”) Measures
The Commission’s investigation revealed that adherence to IPAC measures is key in order to prevent community spread of COVID-19 into long-term care facilities and between staff and residents. The Commission recommends that long-term care facilities designate an IPAC lead. The IPAC lead would be responsible for monitoring, evaluating, and ensuring compliance with protocols. The IPAC lead would provide training to staff and access the local IPAC centre of expertise as necessary. The Commission strongly recommends that in the short term, inspectors from the Ministry, local public health unit(s), and others who can be trained should be sent into long-term care homes to ensure that proper IPAC protocols are being followed.
Residents of long-term care facilities are at a greater risk of contracting severe illness and death from COVID-19 than other populations. Consequently, the Commission suggests that residents and staff receive priority access to testing and faster results. If residents test positive for COVID-19, the Commission recommends that long-term care homes, hospitals, and public health units formulate plans to allow residents to transfer to an alternative setting in order to isolate from others and recover from the virus.
Hull & Hull LLP commends the efforts of the Commission for its proactive efforts towards protecting the most vulnerable citizens of our province. A follow-up blog will be released in the coming weeks summarizing the Commission’s recommendations from its Second Interim Letter.
Thank you for reading.
Just as an economic recession has serious ramifications for our society, so too does a social recession. A social recession can be described as a phenomenon whereby social bonds and human connection unravel the longer we are without interaction. Similar to an economic downturn, a social recession can have significant physical and psychological effects on people. Of particular concern to many is the effect that such a recession will have on the elderly, an already vulnerable population.
Restrictions in long-term care homes resulting from the Covid-19 pandemic have only magnified a deeper rooted pandemic of loneliness that was already in existence. The virus also shed light on an already strained and crumbling system. CBC Marketplace found that 538 of the 632 long-term care homes in Ontario were repeat offenders of abuse, inadequate infection control, inadequate hydration, unsafe medication storage, and poor skin and wound care. These homes were in direct violation of the Long-Term Care Homes Act and Regulations.
The importance of human connection cannot be underestimated. Julianne Holt-Lunstad, a professor of psychology and neuroscience at Brigham Young University, found that people with higher levels of social connection experience less inflammation (which is attributed to many chronic diseases) than those who are more isolated. Toronto long-term care resident, Devora Greenspon, although not infected with Covid-19, described her loneliness as “so deep it feels like a disease.”
Residents in Ontario’s long-term care homes have pleaded with the government to address the mass devastation caused by social isolation. It is crucial that elders and long-term care residents are protected from the spread of Covid-19. However, it is equally as important to halt the plague of loneliness from spreading any further. There must be a greater focus on the devastating effects of isolation on elders’ mental health as a healthy mind can often be the greatest weapon against disease. The inevitability of a social recession should not be overlooked.
Thanks for reading!
Suzana Popovic-Montag and Tori Joseph
The looming threat of COVID-19 has caused some people to see their own mortality in a new and clearer light. In addition to the existential and/or religious contemplation that may arise from this reality, individuals are also turning their minds to more practical end of life planning.
An end of life plan, also referred to as an advance care plan (“ACP”), sets out how an individual would like to be cared for in the final months of their life. In Ontario, an ACP will usually include a Power of Attorney for Personal Care designating a trusted person(s) to make healthcare decisions on behalf of an individual in the event of their incapacity.
An ACP may also include an advance directive, or “living will”, which is a written statement of wishes about future care. Unlike a Power of Attorney, advance directives are not referenced in Ontario’s health care legislation and are not a legal document. However, Ontario law does recognize that wishes and preferences regarding future care choices that are expressed when mentally capable ought to be respected and followed, if possible. Thus, a Power of Attorney or other substitute decision maker is expected to abide by an advance directive to the extent possible. This makes advance directives a useful tool for anyone seeking greater control over the medical treatment they receive while incapable.
Interestingly, a COVID-19-specific advance directive has emerged in the United States. Dr. Andrea Kittrell, a head and neck surgeon practicing in Virginia, established an organization called Save Other Souls (“SOS”) whose objective is to assist individuals with their advance care planning as it pertains to COVID-19-related medical treatment. Specifically, SOS provides guidance on preparing a document that has been coined the “COVID-19 SOS Directive”. This document is a type of altruistic advance directive wherein a person expresses their wish to defer lifesaving critical care hospital placement, medication, and/or equipment to another patient in need during a declared emergency and where there are insufficient health care resources to go around.
Since the COVID-19 SOS Directive was developed for use in jurisdictions outside of Ontario, I will not opine on the effectiveness of this particular document. However, the document is a reminder of the importance of considering one’s own ACP in light of the global pandemic. For information on COVID-19-related advance care planning for Canadians, you can check out Dying With Dignity Canada’s COVID-19 ACP Toolkit. Another helpful resource is the Plan Well Guide which is discussed in Nick Esterbauer’s blog here.
Thanks for reading!