Category: Health / Medical
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.
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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.
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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.
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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.
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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.
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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!
Your annual physical is approaching, and you’re still averaging three to four alcoholic drinks per night – despite the fact that you told your doctor last year that you were going to cut back.
At your appointment, your doctor reviews her notes and asks how the drinking is going. You surprise yourself by blurting out a complete lie – that you’re now going drink-free every other night and have effectively cut your drinking in half.
Your doctor is pleased, and she begins her examination. In your mind, you move on too, but with one perplexing question: why did you lie?
More common than you think
First, if you do lie to your doctor, you’re not alone. In a recent survey carried out by the University of Utah, about 80% of respondents admitted they lie to – or conceal information from – their doctor on issues that could have health implications. The people most likely to do this were women, younger patients, and those who rated their own health as poor.
The top three reasons?
- Not wanting to be judged or lectured
- Not wanting to hear how harmful their behaviour is
- Not wanting to be embarrassed.
This recent CBC article has more information on the research.
A new approach
Whether you blame this lying on preachy doctors who scare people into not fessing up, or on cowardly patients who don’t own up to their behaviours, one point is crystal clear: lying to your doctor does nothing to advance your health needs.
With more health professionals now available online (either by email, chat or video conference), we now have the tools to move to a more non-judgmental “health coaching” model, with regular check-ins on areas of concern.
For example, a regular smoker will still have an annual physical with their doctor, but rather than dealing with the issue of smoking annually in a single (dreaded) conversation, the doctor diverts the behavioural elements to a nurse practitioner with experience in smoking cessation who provides online coaching on a regular basis. Even if the smoking continues, the nurse practitioner can encourage the person to adopt other behaviours that at least move the needle on health (“hey, how about walking to work twice a week – is that doable?”). And with electronic medical records, they can add any changes to your file, so that your doctor stays in the loop.
In short, we free up doctors to focus on physical health needs at annual physicals (such as blood pressure and heart and lung functions) and rely on encouraging, non-judgmental health coaches to focus on behaviours that may be harming our health (such as risky sex, poor eating, gambling or drug and alcohol issues).
Some of these models exist today in various forms. So, if you’re tired of your own “dance with the truth” at your annual physical, ask your doctor about health coaching alternatives.
Thanks for reading.
Let me give you the bad news first: some people are naturally more resilient than others – and life can be tough if your resilience falls in the low end of the range.
Now the good news: your level of resilience isn’t static. You can grow it – with the right brain fertilizer – to become mentally stronger in the face of adversity. This recent New York Times article discusses some of the ways it can be done.
The article is just one of many to explore the link between greater (and lasting) resilience and activities such as mindfulness, social stimulation, and physical activity. It also sets out a great definition of resilience, courtesy of Huda Akil, a neuroscientist at the University of Michigan:
“Active resilience happens when people who are vulnerable find resources to cope with stress and bounce back, and do so in a way that leaves them stronger, ready to handle additional stress, in more adaptive ways.”
In our line of work, the “vulnerable” part mentioned in the above definition is often death, and the estate dispute that follows. From our observations, while death is one of life’s certainties, dealing with it is anything but. In estate disputes, some people are able to cope with the family death and the dispute over assets. Others crumble under the weight of grief and anger. What we’ve seen in many cases is that a higher level of resilience can make a positive difference to outcomes.
How to increase resilience
So, what’s the magic “brain fertilizer” that can increase our resilience? As it turns out, it’s not really magic at all. Better health equals greater resilience, so exercising and good nutrition go a long way to improving resilience. A strong social network also plays a key role. After that, much of it involves shifting our way of thinking – which is where a trained therapist can make a huge difference.
Take a look at the American Psychological Association’s 10 ways to build resilience and consider the opportunities you may have to bounce back stronger the next time adversity comes your way.
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Ontario’s nursing homes can be a very violent place.
According to a report of public health watchdog, Ontario Health Coalition, reported incidents of resident-on-resident abuse doubled from 1,580 incidents in 2011 to 3,238 in 2016. At least 29 residents were killed by fellow residents in the past 6 years. Those numbers may be under-reported. In addition, a number of deaths have been noted that are not deemed homicides, but occur shortly after an incident of violence.
The numbers are particularly significant, considering that there are less than 80,000 people living in long-term care in Ontario.
Incidents usually involve at least one patient with dementia. Symptoms of dementia can often include aggression.
The report does not address staff-on-resident abuse. According to a CBC Martetplace investigation, an average of 6 seniors are abused by their caregiver every day. In 2016, there were 2,198 reported incidents of staff-on-resident abuse.
According to Natalie Mehra, Executive Director of Ontario Health Coalition, “It’s a level of violence that would be unacceptable anywhere in our society and certainly should not be tolerated for the frail and vulnerable elderly. Her organization encourages increased staffing levels and training. “We don’t think it’s in the public interest to scare people away from long-term care. We think that it’s in the public interest that this has to be exposed so it can be dealt with and fixed.”
Have a great weekend.
Section 38 of Ontario’s Trustee Act provides that an estate trustee may commence or maintain, on behalf of a Deceased individual, an action in tort that could otherwise have been commenced by that individual. As discussed in related blogs on this section, such actions are ordinarily subject to a stricter limitation period than that of other civil claims.
In typical civil claims, Ontario’s Limitations Act imports a two-year limitation period which begins to run as of the date the cause of action was discovered. The limitation period under the Trustee Act, however, begins to run as of the Deceased’s date of death and is not subject to this principle of discoverability, unless the Plaintiff can satisfy the Doctrine of Special Circumstances. The decision in Graham Estate v Southlake Regional Health Centre recently contextualized this Doctrine and, in so doing, suggests that the principle of discoverability will not always be dispensed with.
In May 2008, the Deceased in Graham Estate underwent a botched surgical procedure that ultimately gave rise to a claim in medical negligence. The Deceased subsequently died in February 2009, and a claim was commenced by the Deceased’s Estate in May 2010, well within the two-year limitation period under section 38(3).
As part of this initial claim, the Estate obtained disclosure of relevant medical records relating to the operation. In or about 2015, more than four years after the limitation period had expired, counsel for the Estate subsequently received an additional unprompted cache of records that had not been previously disclosed. This new set of records gave rise to a claim against a party who was not a party to the existing litigation.
In February 2017, the Estate subsequently brought a motion seeking to add the Proposed Defendant as a party to the litigation. At issue in this decision was whether the Estate was out of time as a result of the strict operation of section 38(3) of the Trustee Act. The Court ultimately held that the Estate ought to succeed on the basis of the Doctrine of Special Circumstances.
As the claim against the Proposed Defendant was, on its face, out of time, the Estate argued that the Doctrine of Special Circumstances ought to apply. This Doctrine is comprised of a two-step test to be satisfied by the Plaintiff:
- The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
- The Plaintiff must satisfy the Court that special circumstances justify the addition of that party.
At the outset, the Court held that the loss of a limitation defence immediately gave rise to a presumption of prejudice in favour of the Proposed Defendant. However, the Estate identified a number of factors that operated to rebut the presumption of prejudice, notably:
- The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
- The action against the Proposed Defendant was tenable in law; and
- There would be no procedural unfairness to the Proposed Defendant if he were added as a party, as no trial date had been set and he would have sufficient time to prepare a defence.
The Court then considered whether there were any equitable special circumstances that merited the addition of the Proposed Defendant as a party. As above, the Court held that there were, but in so doing, in effect considered factors not unlike the discoverability principle.
Chiefly, the Court noted that the Proposed Defendant’s role in the circumstances giving rise to the initial negligence claim had not become apparent until the limitation period had already expired. The Court found that the Estate had made efforts to obtained the relevant records well within the limitation period, and that the records implicating the Proposed Defendant had erroneously been omitted. The Court held that this was not a case in which the Estate was “handicapped by its own inaction.”
While section 38(3) of the Trustee Act on its face imports a strict limitation period, the Graham Estate decision nonetheless suggests that the courts will consider discoverability, among other factors. That said, this analysis is only engaged if the presumption of prejudice is rebutted.
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