Category: Health / Medical
In estate litigation, medical records are key sources of evidence with respect to the capacity of the deceased. In most cases, the parties seek and obtain an order for their disclosure at an early stage. The order serves to waive any doctor-patient privilege that would otherwise attach to the records.
Litigants and their lawyers must, in most cases, be careful to ensure that such an order is in place prior to seeking such medical records. Doctors, too, must ensure that such an order has been obtained and that they are therefore authorized to release the medical records.
A recent decision, Smith v. Muir, illustrates the possible perils of improperly seeking medical records. That case involved a motor vehicle accident. Trial was approaching and defence counsel wrote to two of the Plaintiff’s doctors. Defence counsel served them with a summons to attend at trial, and also the following request: “We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including … . Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.”
The Plaintiff learned of this, and then moved to have defence counsel removed as lawyer of record. While the court did not remove counsel, it was highly critical of the defence lawyer’s conduct. The court stated that the request for medical records directly from the Plaintiff’s doctors, rather than through the Plaintiff’s lawyer or through the court, was inappropriate. The court noted that the letters did not indicate that defence counsel did not have the Plaintiff’s consent to disclosure, or that the doctor may wish to seek advice before disclosing. The letter, said the court, “invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient”.
The court referred extensively to the decision of Burgess v. Wu, which sets out the appropriate protocol to follow for obtaining medical records. The appropriate routes are either through the discovery provisions of the Rules, or through a disclosure order from the court. Otherwise, “A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law”.
Although the Plaintiff’s motion was unsuccessful, the court awarded the Plaintiff her costs.
In estates litigation, matters are complicated due to the fact that the patient is no longer able to consent to disclosure, and there often isn’t an estate trustee who can consent. In those cases, an order is almost always required.
Have a great weekend.
My colleague, Sayuri Kagami, blogged Tuesday on efforts to use artificial intelligence in scanning for risk factors that have historically contributed to premature death. Such efforts constitute a significant development in policy pertaining to preventive models of health care.
Broadly speaking, delivery of health care services can generally be categorized into one of two models. The reactive model of health care is one based on acute care, and focuses on the treatment of illness as it arises and on an ongoing basis. Your typical visit to the emergency room would generally fall within the scope of reactive health care.
The preventive model of health care, in contrast, is a proactive treatment model emphasizing, as one might expect, the prevention of illness and the mitigation of key risk factors contributing to chronic disease. This model emerged largely as a result of the significant financial strain placed on public health care models in Ontario and abroad by the reactive model.
Treatment of acute and chronic illness on an ongoing and extended basis is, by most accounts, exceedingly expensive and inefficient. In the context of estate planning, we are frequently exposed to the considerable financial and emotional tolls of treating Alzheimer’s disease and other illnesses impacting cognition.
Since the 1970s, policy makers have made significant strides in advocating for a treatment model that sets out the benefits of preventive health care in an attempt to reduce the burden of reactive treatment models. In particular, this model focuses on steps that may be taken by individuals to reduce the risk of chronic illness in order to alleviate the strain placed on the public health care system.
A recent study performed by Cancer Care Ontario identified four main risk factors common to more than 90% of instances of chronic disease:
- Tobacco consumption;
- Alcohol consumption;
- Lack of physical activity; and
- Unhealthy eating habits.
Proponents of the preventive have therefore advocated for increased funding devoted to mitigating each of these factors in order to reduce reactive spending down the road.
If you didn’t pay attention to your grandmother while growing up, take it from the experts: an ounce of prevention is worth a pound of cure.
Thanks for reading.
The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
Thanks for reading!
It’s a near universal experience. Almost everyone over age 50 understands the rather uncomfortable, humble experience of the colonoscopy. For me, it wasn’t the worst experience in the world, but when I had my introduction to this procedure many years ago, I remember being delighted to hear that by the time my next one was due, they would likely have an entirely new “non-invasive” procedure in place.
For example, this “camera pill”.
Or these, which include a “virtual colonoscopy” or “at-home stool tests.”
With the profit-driven U.S. health care system just south of us, and the general hatred of the colonoscopy procedure, I knew I’d be in the clear. Bottom line (couldn’t resist that pun) – I’d never have to go through the procedure again.
So, what happened to innovation?
My, how time flies – I’m due for another colon check, but it appears that medical advancements haven’t flown quite as fast. What procedure did my doctor recommend for testing? A colonoscopy of course. Same clinic, same specialist, same 1.5 days of awful prep.
Need I say it? They can put someone on the moon, but they can’t figure out a way to check for colon polyps without a long tube going where you don’t want it to. At this rate, I think we’ll have cities on Mars before I can avoid the indignity of “now, just relax; you’ll feel some pressure, but it shouldn’t be too uncomfortable.”
Think of the positives
I do need to keep the many benefits of our health care system in mind. We live in a country that routinely checks us for common cancers – at no out-of-pocket cost. And let’s face it, not eating for two days highlights the hunger that many people experience daily. So yes, time for an attitude reset and a positive mindset as I go into battle.
But I still hope that 10 years from now, a doctor just waves a magic wand over my belly and pronounces me cancer-free. Until then, bottoms up!
Thanks for reading.
Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
Thank you for reading.
Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
Thank you for reading.
Other blog entries that may be of interest:
Our blog has previously featured posts about the concept of aging in place. Survey results suggest that the vast majority (93% of respondents aged 65 or older) of Canadians wish to continue living at home for as long as possible as they age. Benefits of aging in place may include lower costs (relative to living in long-term care), increased comfort, slower advancement of memory loss, strengthening of social networks, and continued independence and self-determination.
For many, with old age comes physical limitations that may result in decreased mobility and expose seniors to an increased risk of accidents while living at home, whether they are living with or without the assistance of caregivers or other support, absent sufficient safety measures. We recently discovered a guide to making homes senior-safe, which is available online for free through the Senior Safety Reviews website.
The guide features the following:
- 34 practical tips to assist in preventing falls;
- Measures that may assist in the prevention of theft, elder abuse, burns and fires;
- Technology that can be used to promote at-home safety; and
- Preparing the home for extreme weather.
The guide reports that, notwithstanding the goal of many individuals to remain at home into old age, only 1% of homes are currently equipped to safely facilitate aging in place.
This user-friendly guide may be of assistance to older clients and supportive family members in allowing seniors to safely age in place.
Thank you for reading.
It’s a new year, and we all want to live well and healthy. While our bad habits can get in the way, we generally try to do the right thing.
But what’s right? In 2019, the notion of what’s “right” for our health is getting fuzzy. The reason? We live in an “always on” marketing world, and what can actually help us live well can take a back seat to the shiny new wellness tools that are being thrust upon us.
Think about it. Has there been a major “wellness” finding, backed by science, that’s emerged over the past 20 years? I’m not sure there has been.
Scottish writer, broadcast and family doctor Margaret McCartney lays out the truth we don’t want to hear in this Globe and Mail article. We don’t want to hear it because the advice is boring, obvious and “old news”.
“The truth is that well-being is simple, if not straightforward. Don’t smoke, don’t drink excessively, do exercise you enjoy, eat a Mediterranean-style diet with plenty of fruit and vegetables, interact with people, work at a job and hobbies you like, and don’t be poor.”
These are the evidence-based factors that contribute to health. And while poverty is not a choice for most people, the other factors are. Margaret McCartney’s fear is that we’re becoming so focussed on the shiny new wellness trends (cleanses, colonic irrigation, crystal-infused water, 10,000 steps, this diet, that diet) that we’re missing the bigger picture and the very basic things that can help us stay healthy.
The beginning of a new year is when wellness “hype” is at its peak. My advice? Don’t buy it. By all means, enjoy your Fitbit, your new exercise program, your life without sugar or carbs, or whatever it might be. But don’t ignore the science. None of us are perfect in our health behaviours, but let’s at least strive for what can make a proven, meaningful difference.
Thanks for reading,
My colleague, Garrett Horrocks, recently blogged on a promising breakthrough in research relating to the early detection of Alzheimer’s disease. The research focused on the use of artificial intelligence to assist in the early detection of the disease.
Last week, I came across an interesting article that discusses a promising breakthrough in the United States in treatment for patients who suffer from Alzheimer’s disease and other degenerative diseases. The fact that treatment options continue to be explored by the science, engineering and medical community is hopeful, in light of last year’s announcement by the world’s largest pharmaceutical company, Pfizer, that it is pulling out of research into Alzheimer’s disease.
The treatment consists of implanting a “pacemaker” into the part of the brain responsible for executive and cognitive functions, such as planning, problem solving and judgment. The article explains that a battery pack is then placed in the chest, which sends electrical currents through the wires in a process called “deep brain stimulation” or DBS.
Studies on the use of the implant have shown that the subject patients’ cognitive and daily functional abilities as a whole declined much more slowly than Alzheimer’s patients in a matched comparison group who were not being treated with DBS.
The article highlights one study participant, Ms. Moore, who, prior to receiving the implant, was unable to cook meals or dress herself without assistance. According to the article, Ms. Moore was very fearful that her disease would take away her ability to play hymns on the piano, however, after two years of receiving DBS, she is still able to continue playing the piano and can now cook meals, select outfits and plan outings independently.
My colleague, Garrett, has pointed out in his recent blog that there could be many ways in which the use of artificial intelligence in the early detection of Alzheimer’s could impact succession and estate planning, such as a predictive diagnosis prompting a testator to take steps to implement an estate plan prior to the loss of capacity.
There is no global definition of capacity, and there are varying degrees of capacity that attract different legal tests. Capacity is decision, time and situation specific, such that a person may have capacity to do certain things, but not others, at different times and under different circumstances.
While the full impact of the use of the implant and DBS in treating Alzheimer’s is not yet clear, should the treatment continue with its successes, it may be possible that people living with Alzheimer’s who do not have testamentary capacity today, may have testamentary capacity sometime in the future.
Thanks for reading!
This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.
The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home. Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.
As an example, the first 4 rights are:
- the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
- the right to be protected from abuse;
- the right not to be neglected; and
- the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.
An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.
Thanks for reading and listening!