Category: Health / Medical
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.
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,
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:
Estate planning lawyers have both the privilege and the responsibility of providing guidance and advice to clients while they are at key stages in their lives. A good lawyer’s role involves turning a client’s mind to the future and planning for turbulent times before they arise. As one grows old and the risk of serious illness increases, it is important to consider difficult medical decisions that will need to be made, and the impact those decisions might have on your loved ones. Lawyers can help in this preparation, for example with naming a substitute decision-maker who can help direct doctors when the patient becomes incapable, as well as by drafting advanced care directives that lay out the wishes of the patient regarding treatment of serious illness and the extent that life-prolonging measures should be used. While such “advanced care directives” have no legal standing in Ontario, they are still important in that they can provide crucial guidance to decision-makers and medical practitioners when drafted correctly. On the other hand, they could be confusing to decision-makers and hinder medical professionals when drafted in an inflexible manner.
The Lawyer’s Role
Firstly, the language of these directives should be directed to the patient’s decision-maker, and not to the medical practitioner. They should be drafted as advice and guidance to the decision-maker, and not as rigid rules that a medical professional might feel obligated (but not legally compelled) to follow. This is crucial as any lawyer drafting such a document should appreciate the “shared decision-making” model between patient and doctor. Important medical decisions are not made in a vacuum and the availability of different treatment options as well as the weight of their risks and benefits can vary with changing circumstances. It is difficult for a rigid legal document to accommodate the nuances of such a complex situation, but one that supports and guides a decision-maker in their conversations with medical professionals can be extremely valuable. With skilful drafting, the two-way decision-making process between doctor and substitute decision-maker can be facilitated, instead of hindered.
The drafting of advanced care directives should be centered around the values and preferences of the patient as opposed to specific treatment options. The American Bar Association advises that there should not be a focus on specific clinical intervention for “distant hypothetical situation” but rather on the patient’s “values, goals, and priorities in the event of worsening health”.
Finally, the planning process for important medical decisions regarding serious illness requires input from both doctors and lawyers to ensure treatment directions can be drafted with the nuance required for complex medical situations. The ABA suggests that “lawyers and health professionals should aim for greater coordination of advance care planning efforts”, and such collaboration will help clients and decision-makers be as prepared as possible to make informed decisions.
The Client’s Role
When it comes to what clients can do, while preparing a legal document is an important step, it should be reinforced by candid conversations with decision-makers, family, and friends. This significantly eases the burden on decision-makers, as they can carry out their role in stressful situations with the peace of mind that they are not second-guessing their loved one’s wishes when it comes to treatment.
Another way clients and their decision-makers can prepare for the future is by consulting resources that facilitate the planning process. An example of such a resource is planwellguide.com, which provides guidance on important issues from choosing a substitute decision-maker, to elaborating on the pros and cons of different care options, to specific factors to consider when making an advanced care plan.
A Gift of Great Value
While the lawyer’s skill in drafting is important to making an effective plan, a lawyer’s role can extend past legal documents and into transmitting a forward-thinking approach to clients. This approach requires careful consideration and reflection on the part of the client regarding their values and priorities when faced with serious illness, as well as having frank conversations with loved ones. While having these types of conversations may not be the most merry activity over the holiday period, giving a loved one that peace of mind is a gift of immeasurable value.
Thank you for reading!
Ian Hull and Sean Hess
According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University. These scientists have, for the very first time, identified the structure of telomerase in plants.
Telomerase is an enzyme that creates the DNA of telomeres.
>>Telomeres protects our cells from aging as our cells multiply.
>>>If our cells are protected from aging, then so will our bodies…
This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans! For example, there is a pine tree, named Methuselah, that is 4,845 years old in California. It is so inimitable that the location of this particular pine tree is kept secret for protection.
On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells. The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!
Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.
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There are constantly new studies suggesting different ways to slow both physical and mental aging. This month alone, the news has featured research suggesting the following:
- Aging with pets in place can increase life satisfaction overall, and research suggests that pets may be associated not only with less loneliness, stronger social support systems, and increased participation in the community, but also better cardiovascular health, lower cholesterol, and lower blood pressure.
- A study from the University of Leeds suggests that tickling may slow down aging. The study involved the use of electrodes on the participants’ ears to simulate a tickle-like tingling sensation. Two weeks of 15-minute daily tickling therapy were believed to improve the balance of the autonomic nervous system.
- People who are optimistic may live longer. For groups of both women and men, those who were optimistic long-term had a better chance of living to age 85 (and beyond). Optimism has been linked with goal-setting and healthier habits and, accordingly, fewer optimistic people are believe to die prematurely from stroke, heart disease, or cancer.
- Consistent with previous research, a new study by the University of Iowa has linked exercise to a healthy aging brain. Even a single bout of exercise was considered to improve cognitive function and working memory in older participants.
While there may be nothing to prevent aging altogether and/or to totally eliminate the risk of suffering from Alzheimer’s disease or other age-related cognitive decline (absent any major scientific breakthrough), in general, taking health and wellness more seriously from an earlier age may improve quality of life and independence down the road.
Thank you for reading.
Other blog posts that may be of interest:
Oakland Rose is no ordinary child. He is special in more ways than one.
Oakland was diagnosed with Autism at the age of 2 years old and had no verbal communication until the age of 5.
Oakland is currently 20 years old. Although his verbal communication has drastically improved, he is not able to engage in abstract thinking. Oakland’s responses are often rehearsed and premeditated. He is not able to take public transportation alone. Although Oakland will graduate from a specialized high school program, he will never attend university. Oakland has the capacity of a young child.
Oakland will be dependent on his parents for the rest of his life.
Approximately 1 in 66 Canadian children were diagnosed with Autism Spectrum Disorder in 2018. Autism is just one of many developmental disorders that children are diagnosed with each year.
Families with children with special needs are in a unique position when it comes to estate planning. Planning for one’s death and ensuring that your loved ones are supported is an overwhelming task for the average person. For parents with special needs children, the task becomes even more burdensome.
According to one author, a child with special needs includes any child who, at birth or as a result of an illness or injury, is physically, mentally or emotionally disabled. While some people with special needs have successful careers, many will be dependent on their parents for the rest of their lives. Not only will the person be physically and emotionally dependent on their parent, but they will also be financially dependent. As a result, parents of a special needs child face exceptional estate planning challenges.
The higher functioning a special needs person is, the more likely he/she will require assistance from a parent’s estate. This is because government funding typically only provides for basic necessities.
Estate planners must determine whether their clients have children or other immediate family members with special needs. They must also ascertain that individual’s level of functioning. Specialized planning will be required for these families.
A parent of a special needs child might wish to consider:
i) Providing financial compensation for future caregivers in their will
ii) Setting up a special needs trust to ensure their child is not disqualified from government benefits – this trust will supplement but not replace the government benefits
iii) Creating a life care plan for their child which includes educational, living and career planning
iv) Writing a letter of intent summarizing the child’s habits, likes and dislikes
v) Naming a guardian if your child is under the age of 18
It is important to remember that children with disabilities have evolving needs. Thus, parents should create an estate plan that allows for flexibility. The plan should be reassessed and updated regularly to ensure it is in line with the child’s current needs.
Although creating a will and considering your own mortality is a daunting experience, it is far better than the alternative of leaving your child without adequate support!
Thanks for reading!
David Morgan Smith and Tori Joseph
Canada, as most people will know, has an aging population and the issue of dementia has become more and more prevalent over the years, as it affects the ability of those afflicted, to live and function independently.
A strategy to address this problem is important given the statistics, however, another interesting aspect of this live issue is the work being done to develop a means of preventing and minimizing the impact of this disease on people in the future.
Dr. Rosanna Olsen is the leader and director of the Olsen Lab and a scientist at the Rotman Research Institute (RRI) at Baycrest as well as an Assistant Professor at the University of Toronto.
Dr. Olsen noted that early detection of dementia is important for effective treatment of the disease. Given that no test can currently detect dementia before the onset of symptoms, Dr. Olsen has undertaken research that will help in the development of non-invasive and cost-effective eye-tracking tests that will identify those at risk of dementia before the onset of the symptoms.
Dr. Olsen will receive $546,975.00 over five years for her work in establishing a set of new eye-tracking and brain-imaging biomarkers that will assist in the earlier detection of Alzheimer’s disease.
I, for one, am very interested in seeing the results of this study and how they may impact the detection of Alzheimer’s disease in the future.
Thanks for reading!
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