Category: Health / Medical

25 Jan

Violence in Ontario’s Nursing Homes

Paul Emile Trudelle Elder Law, Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: 0 Comments

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.

Paul Trudelle

21 Jan

Limitation Periods and Special Circumstances: Discoverability under the Trustee Act

Garrett Horrocks Executors and Trustees, Health / Medical, Litigation, Trustees Tags: , , , 0 Comments

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.

The Facts

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.

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:

  1. The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
  2. 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:

  1. The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
  2. The action against the Proposed Defendant was tenable in law; and
  3. 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.

Thanks for reading.

Garrett Horrocks

17 Jan

Predictive Prowess: Alzheimer’s and Artificial Intelligence

Garrett Horrocks Capacity, Elder Law, General Interest, Health / Medical, In the News Tags: 0 Comments

A recent study published by the Department of Radiology and Biomedical Imaging at the University of California at San Francisco represents a promising breakthrough in research relating to early detection of Alzheimer’s disease.  At the core of the study, however, is a familiar yet unlikely trend: artificial intelligence.

The research team developed an algorithm to read and interpret PET scan images with a particular emphasis on monitoring and detecting changes in glucose uptake over extended periods of time.  Glucose monitoring has historically been an important predictive factor in formulating a diagnosis of Alzheimer’s.  Healthy cells generally display high levels of glucose uptake, indicative of robust cell activity.  Conversely, lower glucose uptake suggests cell inactivity or death, for example, as a result of Alzheimer’s.

The slow, progressive nature of Alzheimer’s has historically rendered it difficult for radiologists to observe the subtle changes in glucose levels until symptoms had reached a stage at which they were no longer meaningfully reversible.  The team at UCSF tailored the algorithm to detect subtle features that were imperceptible to the human eye.

To achieve this, the algorithm was fed thousands of PET scan images from thousands of patients at all stages of cognitive impairment, from no impairment through to late-stage Alzheimer’s.  Over time, the algorithm learned to discern between the particular features of a given scan which were of assistance in predicting the eventual onset of Alzheimer’s and those which were not.  At the conclusion of the study, the algorithm had correctly predicted the onset of Alzheimer’s in more than 92% of cases.  Importantly, the algorithm was able to predict the onset of Alzheimer’s, on average, more than six years before the symptoms constituting a typical diagnosis had manifested.

Leaving aside the obvious benefits relating to treatment and reversibility, early detection of Alzheimer’s could stand to have numerous applications in the context of succession and estate planning.  For example, a predictive diagnosis could spur a testator to take steps to implement a proper estate plan well before his or her capacity to do so could become a concern.  In turn, the testator would have the security that their plan of succession would be carried out according to his or her instructions, reducing the risk of contentious post-death litigation.

Thanks for reading.

Garrett Horrocks

Please feel free to check out the following blogs on related topics:

Canadian Alzheimer’s Study Finds Gene That Delays Onset of Alzheimer’s

BikeAround: A View Down Memory Lane for Alzheimer’s Patients

09 Jan

Live longer – unusual tips for keeping the grim reaper at bay

Ian Hull Estate & Trust, Estate Planning, Health / Medical, Trustees, Uncategorized, Wills 0 Comments

We’re all too familiar with the conventional advice for living longer – and the same ol’, same ol’ is being trotted out again by scientists. A new study says that sticking to the following five things can prolong your life expectancy by more than a decade. The five things?

  • Never smoke
  • Maintain a healthy body-mass index
  • Keep up moderate to vigorous exercise
  • Don’t drink too much alcohol
  • Eat a healthy diet

Any surprises? I didn’t think so. It feels predictable and a bit puritan for my tastes, but you can read more about the study here.

Offbeat tips for living longer

I much prefer these five tips for living a long life. The article here outlines 10, but these are the five that caught my eye.

  1. Work hard and be stressed

An 80-year study that began in 1921 followed a group of 1,500 children. Are you ready for this? Children who were happy-go-lucky, carefree, and had a good sense of humor lived shorter lives than those who were more serious, persistent and prudent. As adults, these people were the most involved with and committed to their jobs. Three cheers for the workaholic!

  1. Get rich

Wealth and long, healthy living are positively correlated all around the world, with poorer countries having predictably lower life expectancies. While you don’t need to be rich, money helps. There’s something to be said for playing the lotto.

  1. Learn a second language

Studies have shown that the ability to speak two or more languages significantly slows the onset of dementia and Alzheimer’s, both of which are fatal diseases of old age.

  1. Do good in the world

Many studies have shown that volunteering increases your life expectancy significantly, especially if you’re doing it for purely altruistic reasons.

  1. Live on a mountain

In the US, seven out of ten communities with the greatest longevity are in high-country Colorado counties. And in a mountain town on the Italian island of Sardinia, as many men as women live to be 100. Seek elevation, live longer.

So, if we combine these five tips, you’d live on a mountain working hard at a job that made you rich, while learning a second language and volunteering in your spare time. See you at my 100th birthday party!

Thanks for reading,
Ian Hull 

18 Dec

Robo-Care for the Elderly

Doreen So Elder Law, General Interest, Health / Medical, In the News Tags: , , , 0 Comments

Humans are social beings.  Some of us enjoy interacting with others, with animals, with virtual reality experiences, or all of the above!

I read a heartwarming story recently from the New York Times which featured a robot caregiver for the elderly named Zora.  Zora was introduced to a nursing facility outside of Paris and she was rather well received.

The residents of this particular facility have dementia and other conditions that require twenty-four hour care.  Zora can converse with the residents through the assistance of a nurse who types on a laptop for the robot to speak.  Many residents formed an attachment to Zora and even treated the robot like a baby.

According to the makers of the Zora robot, it is the first robot in the world that takes care of people.

While a robot may not be able to replace the tender, love, and care of one’s family, it is easy to believe that a robot can make any one’s imagination wander, stimulate play, and even be a friend.

I say that as someone with very fond memories of Toy Story.  The first Toy Story came out in 1995 and Toy Story 4 is about to be released in 2019 if you want to check out the trailer here.

Thanks for reading!

Doreen So

15 Nov

Section 3 Counsel: Duties to the Client and the Court in Sylvester v Britton

Garrett Horrocks Capacity, Elder Law, Ethical Issues, Health / Medical, Power of Attorney 0 Comments

One of the major facets underpinning the principles of fundamental justice in Canada is ensuring all parties to a litigation have a voice.  The ability of the judicial system to satisfy this burden is often rendered more challenging when the capacity of one of the parties is a central issue in a given proceeding.  The recent decision of the Ontario Superior Court of Justice in Sylvester v Britton, 2018 ONSC 6620, provides clarity in respect of the duties and obligations of counsel who are appointed to navigate these issues.

In Sylvester, the Applicant brought an application seeking to be appointed as guardian of property and personal care for her mother, Marjorie.  Marjorie had previously appointed two of her sons as her attorneys for property and personal care pursuant to validly-executed powers of attorney.

On consent of all parties, the Public Guardian and Trustee arranged to have a lawyer, Clarke Melville, act for Marjorie on the application in accordance with section 3 of Ontario’s Substitute Decisions Act.  Section 3 of the SDA provides that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding.  Accordingly, the Court deemed Marjorie to have the capacity to give instructions to Mr. Melville on the application.

The Applicant disputed this presumption of capacity.  She brought a motion seeking, amongst other relief, Mr. Melville’s removal as Marjorie’s section 3 counsel and a declaration that Marjorie was not capable of instructing counsel.

The Applicant’s position on the motion was largely premised on earlier findings of Marjorie’s incapacity.  Capacity assessments performed several years earlier had revealed that Marjorie was not capable of managing her property or her personal care.  At common law, the test for capacity to manage property and personal care is generally more onerous than the test for capacity to instruct counsel.  The Applicant took the position that a finding of incapacity to manage property and personal care was sufficient to establish a lack of capacity to instruct counsel.

The Court disagreed and, in its reasons, highlighted several key points that clarify the role of section 3 counsel in the court process.  The purpose of the SDA and of section 3 in particular is to protect vulnerable individuals and to allow them to provide input, to the extent possible, on matters that impact their interests.

However, the Court also stressed that the Rules of Professional Conduct govern all solicitor-client relationships, including relations arising under section 3.  Section 3 counsel must carry out all of the duties and obligations to the Court and to the client that other counsel must observe, regardless of the particular vulnerabilities of their client.  All counsel have an obligation to canvas the wishes or instructions of their client and to advance the client’s interests.  The role of section 3 counsel differs only insofar as it is potentially more likely that he or she will be required to advise the Court if, at any point, counsel no longer believes the client has the capacity to give instructions.

This final point is the salient point that governed the Court’s decision to deny the Applicant’s motion.  The Court ultimately held that significant deference ought to be granted to section 3 counsel in assessing a client’s capacity to give instructions.  The Rules of Professional Conduct properly govern a lawyer’s duty to all clients and to the Court.  As such, no individual will be better positioned to judge an incapable person’s capacity to give instructions than the person to whom the instructions would ordinarily be given.

Accordingly, the Court will only interfere if it is apparent that the client is not able to give instructions and where it is clear that counsel has “strayed from his or her obligations to the client and to the Court.”  In all other circumstances, the Court will presume that counsel is acting with the integrity of the court process in mind.

Thanks for reading.

Garrett Horrocks

14 Nov

Apples to apples – the Mac is under attack

Ian Hull Estate & Trust, Estate Planning, Health / Medical, In the News, Trustees, Uncategorized, Wills 0 Comments

I’ve always loved a fresh apple – so this article in the National Post about the birthplace of the McIntosh apple immediately caught my eye.

It seems that the original farm in Dundela, Ontario, where the McIntosh was discovered in 1811, has fallen into disrepair (Dundela is north of the St. Lawrence River between Kingston and Cornwall).

It also seems that the popularity of the McIntosh apple is in decline. If you regularly visit the apple section of your local grocery store, this will come as no surprise. Tastes are changing, and people are looking for less “tang” and more “crunchy and sweet”. One grower predicts that McIntosh apples will, for the most part, disappear from the marketplace in his lifetime.

While there’s a great story behind the rise of the McIntosh apple, Heritage Canada doesn’t have the funds to buy the farm and preserve the story. There’s a good chance that younger generations will know nothing about this apple and never taste one, even though the McIntosh apple became a 20th century North American success (and even had a line of computers named after it).

Should we care?

I grew up eating McIntosh apples. I bought them from Boy Scouts on their apple day and received them as a Halloween treat (reluctantly). They’re truly part of my history. But so are Eaton’s, Sam the Record Man, and those Lola triangle ice treats (created in the late 1950s but gone by the 1980s). Time and tastes move on. Maybe we should worry less about shrines to the past and simply enjoy what we have while we have it and look forward to the next great thing when the time is up.

In the meantime, I’ll continue to enjoy some uniquely Canadian traditions, like Hockey Night in Canada, Caesar cocktails, butter tarts, Victoria Day fireworks, and Crispy Crunch chocolate bars (in no particular order).

Thanks for reading!
Ian Hull 

31 Oct

Does your elderly parent need help?

Ian Hull Elder Law, Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: 0 Comments

It’s a situation shared by many – you have a single elderly parent living alone. They’ve always been able to handle their day-to-day needs, with the occasional helping hand from family members. But something doesn’t seem right.

It often starts with your intuition. If you visit your parent regularly, it can be difficult to spot the signs of decline because these can happen gradually. They begin losing weight due to improper eating, or they start letting their appearance slide, or personal finance obligations – like credit card payments – are sometimes missed. Before you know it, those “something doesn’t seem right” thoughts become “something isn’t right” certainty.

Of course, there are more dramatic signs of not coping, everything from confused wandering, to car accidents, to kitchen fires. This article provides a great overview of 12 signs to look for in determining whether an elderly parent needs help.

Advance planning

While you can’t stop the aging process, you can take a few small steps now – while your parent is healthy and well – that can help ease the burden later if help is needed. Here are three to consider.

  1. Start the conversation: People in their 60s and 70s are usually active and independent. But if your parent has reached age 80, a conversation with your parent about “what if” is highly advisable, despite any discomfort in raising the topic. Are they open to move into a retirement home when the time comes? Would they prefer home-based care? Would they consider down-sizing now, rather than later? Your parent may not be in a position to express their thoughts in two or three years. By having the conversation now, you can factor your parent’s wishes into future decisions.
  2. Get a financial opinion: Seek the help of a financial advisor (yours or your parent’s) to determine what type of help is affordable if your parent is no longer able to care for themselves. Ideally, your parent should be involved in these conversations. This information will give both of you an idea of what care options are feasible in the future.
  3. Make a retirement home visit: If a retirement home is a possible future option, a tour of one or two homes is a great way to familiarize your parent with retirement home living. Even if your parent is years away from a move, the ideal time to tour places is when there’s no pressure or crisis. If a need to move arises later, your parent already has some comfort level with the options available.

This short article – although written by a retirement home provider – offers some great tips for starting a conversation.

Thank you for reading and Happy Halloween!
Ian Hull

26 Oct

“Tennessee doctor borrowed $300K from a patient, then diagnosed her with dementia”

Paul Emile Trudelle Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , 0 Comments

This is an actual headline from an October 23, 2018 post on “Tennessean”, which is part of the USA Today Network.

Apparently, the doctor borrowed $300,000 some time ago from a long-time patient who was also a friend and the administrator at the doctor’s clinic. When the patient later requested repayment, the doctor diagnosed her with dementia in an apparent attempt to escape the debt. The doctor forwarded the diagnosis to the patient’s daughter, who in turn forwarded the letter to the patient’s financial company. The patient was then denied access to her assets.

The doctor later admitted that the diagnosis of dementia was based solely “on observation”, and that she did not use any testing methods or obtain a second opinion.

A later assessment by a psychologist stated that the patient had no indication of dementia.

As a result of disciplinary action that was brought against her, the doctor voluntarily retired her licence.

In an interview with the Tennessean, the doctor said that she was “set up” by a vindictive patient, and that she retired after state attorneys “presented her with an unwinnable legal case.” The doctor said that she borrowed the money 20 years ago and that she had been making repayments.

The doctor said that the patient did in fact “exhibit erratic behavior and signs of memory loss”. She said that the patient “later misled the psychologist so the dementia diagnosis would not be confirmed.”

What is not clear from the report is how the doctor could have expected to avoid the debt by having the patient declared incapable.  Surely the patient’s daughter or someone else on her behalf could have taken steps to enforce the debt. That is, however, assuming that they knew about it.

A takeaway is to ensure that your legal and financial affairs are in order and are well documented, so that someone can step in and protect your assets and enforce your rights in the event that you are found to be incapable, legitimately or not.

Another takeaway may be to be careful when getting medical assistance in Tennessee. The headline to another story posted October 11, 2018 reads: “This pain clinic nurse gave a patient 51 pills a day. And she kept her licence.” (For the record, the pills consisted of 32 tablets of methadone, 8 Roxicodone, 4 Soma, and 6 Xanax throughout the day, topped off with 1 Ambien.)

 

Have a great weekend.

Paul Trudelle

17 Oct

Why staying well can be a living hell

Ian Hull Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , , 1 Comment

Have you followed the wellness industry lately? The New York Times recently published a lengthy feature on Gwyneth Paltrow and her wellness company Goop. In it, the author describes a number of the “therapies” she learned about in the course of interviewing Paltrow and writing the article.

These ranged from more conventional wellness tips (healthy eating, cleanses, meditation) to far more radical ideas (bee-sting therapy, psychic vampire repellent, and jade eggs for vaginal therapies). It’s a fascinating (and somewhat disturbing) article. You can read it here.

Paltrow is by no means the only wellness guru out there promoting what she calls “radical wellness.” There are many – with many products and treatments to purchase if you are willing to give them a try. And despite the lack of scientific evidence that these treatments work (one woman recently died from bee-sting therapy) and the resounding criticism of many alternative treatments from the medical community, alternative wellness is flourishing.

Why is that? I can see three reasons:

  1. Social media makes it easier than ever for wellness “ideas” to go viral;
  2. Many people are suffering from a mental or physical condition that conventional therapies haven’t cured – and are desperate for answers; and
  3. The placebo effect results in many claims that a treatment “works” – and those good news stories are fed into the social media cycle.

Of course, some therapies may in fact work – but how can you tell truth from fiction? While there are hundreds of scientific studies that prove the health benefits of things like exercise, healthy eating and meditation, alternative therapies typically have only anecdotal evidence to back them up.

All to say, before you wade into a swarm of bees, get the facts first. This U.S. website lists five reliable online medical resources (such as the Mayo Clinic) that you can trust for information.

Thanks for reading!
Ian Hull

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