The COVID-19 pandemic has thrown much of what we take for granted on its head. If recent reports are accurate we can potentially add to that list an individual’s right to control their own medical treatment as codified in the Health Care Consent Act (the “HCCA”).
There have been reports in the news recently about advanced planning currently underway about what would happen to the provision of health care if the worst case scenario for COVID-19 should occur and the hospitals are overwhelmed. Included amongst these reports are discussions that certain provisions of the HCCA may temporarily be suspended as part of a new triage system which would allow medical professionals to prioritize who received treatment.
Section 10 of the HCCA codifies that a health care practitioner shall not carry out any “treatment” for a patient unless the patient, or someone authorized on behalf of the patient, has consented to the treatment. The Supreme Court of Canada in Cuthbertson v. Rasouli, 2013 SCC 53, confirmed that “treatment” included the right not to be removed from life support without the patient’s consent even if health practitioners believed that keeping the patient on life support was not in the patient’s best interest. In coming to such a decision the Supreme Court of Canada notes:
“The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.”
The proposed changes to the HCCA would appear to be in direct contradiction to the spirit of this statement, allowing health care practitioners to potentially determine treatment without a patient’s consent based off of the triage criteria that may be developed. This “treatment” could potentially include whether to keep a patient on a lifesaving ventilator.
Hopefully the recent downward trend for COVID-19 cases holds and the discussion about any changes to the HCCA remains purely academic. If not however, and changes are made to the HCCA which could remove the requirement to obtain a patient’s consent before implementing “treatment”, you can be certain that litigation would follow. If this should occur it will be interesting to see how the court reconciles any changes to the HCCA with the historic jurisprudence, for as Rasouli notes beginning at paragraph 18 many of the rights that were codified in the HCCA previously existed under the common law, such that any changes to the HCCA alone may not necessarily take these rights away for a patient.
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A recent B.C. Court of Appeal decision, L.T. v. D.T. Estate, 2020 BCCA 328 (CanLII) clarifies the ability to harvest and use reproductive material from a deceased individual. The decision makes it clear that the material cannot be collected unless the deceased consented to the removal of the material prior to death. The consent must be informed, and in writing.
The unfortunate facts are that Mr. and Ms. T were in a long-term relationship. They married three years before Mr. T’s death, and had one child together. They had discussed having another child. Mr. T died suddenly and unexpectedly. Ms. T brought an emergency application to allow for the removal of Mr. T’s reproductive material. The application was allowed, on the condition that the material not be released until the court could consider the matter further. The application judge then heard the matter and found that the removed reproductive material could not be used. The order was stayed pending an appeal to the B.C. Court of Appeal. “With regret”, and “aware of the painful and tragic circumstances confronting Ms. T’s family”, the B.C. Court of Appeal dismissed the appeal.
The B.C. Court of Appeal found that the clear wording of the Assisted Human Reproduction Act, S. C. 2004, c.2. applied. Section 8(2) of the Act mandates a clear prohibition on the removal of human reproductive material after the donor’s death without the donor’s written consent, to be given in accordance with the regulations.
The Court of Appeal distinguished a prior decision where material was allowed to be used notwithstanding the fact that the consent did not comply with the Act. In K.L.W. v. Genesis Fertility Clinic, 2016 BCSC 1621, (which Natalia Angelini and Nick Esterbauer podcasted on, here) the deceased had stored reproductive material before he died. He did not, however, give formal consent to its use posthumously. The court in K.L.W. held that the material was “property” and that it passed to the surviving spouse. While not commenting on the “reproductive material as property” argument, the Court of Appeal challenged the correctness of the K.L.W. decision. “The case should be treated as having been overruled insofar as it contemplates the possible use of reproductive material where the statutory conditions have not been complied with.”
The B.C. Court of Appeal stayed its own order to permit the parties to consider an appeal to the Supreme Court of Canada.
A consideration of the possible posthumous use of reproductive material should be a part of most estate plans. If you want to be able to use it, ensure that the requirements of the Assisted Human Reproduction Act have been complied with.
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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.
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Other blog posts that may be of interest:
This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the law relating to consent to the posthumous use of reproductive materials, the British Columbia Supreme Court’s decision in K.L.W. v. Genesis Fertility Centre, and estate planning considerations when dealing with clients who have stored or donated reproductive materials.
After being embroiled in a lengthy legal dispute, Audrey Hepburn’s sons appear to have settled the division of their late mother’s personal property.
By way of background, Audrey Hepburn left her estate in equal shares to her two sons. Her will, however, did not provide any directions as to how her personal belongings were to be distributed. Many of the items in dispute are famous memorabilia acquired throughout her lengthy acting career.
In Ontario, all property belonging to a deceased person who dies with a will immediately vests in his or her estate trustee. However, it is not entirely clear as to whether an estate trustee has the authority, absent specific direction from the testator, to distribute the personal effects of the deceased.
In Re Bucovetsky Estate,  O.J. No. 303 it was held that in specie distributions are not permitted in the absence of a specific direction in the will or unanimous consent of all beneficiaries. Accordingly, without specific authority or unanimous consent of all beneficiaries, an estate trustee should take care to avoid distributing personal items.
Some options that may be available to an estate trustee who is confronted with the difficulty of determining how to deal with the distribution of personal effects of a deceased person include:
- seeking directions from the court pursuant to section 60 of the Trustee Act, R.S.O. 1990 c T. 23; or
- selling and converting the personal items into cash in accordance with the testator’s will or by section 17 of the Estate Administration Act, S.O. 1990, c. E.22
Other articles you might enjoy:
Thank you for reading and have a great weekend!
A recent decision arising from the British Columbia Court of Appeal addresses the ability of an elderly Alzheimer’s patient to provide consent to personal care decisions without speaking.
Bentley v. Maplewood Seniors Care Society involves a petition brought by Margaret Bentley’s daughter and husband to prevent Maplewood, the care facility in which Margaret has been a patient since 2009, to cease providing food and water to Margaret.
At the time of the hearing, Margaret was an 83-year-old woman who had been afflicted with Alzheimer’s Disease since at least 1999. Consequently, Margaret would sit “…slumped over in a chair or in bed most of the time, with eyes closed. She has not spoken since 2010 and does not appear to recognize anyone”.
Margaret’s family relied on evidence from as far back as 1991, including a living will (otherwise referred to as an advance directive), expressing Margaret’s wishes that, amongst other things, if there was no reasonable expectation of recovery from extreme physical or mental disability, she be allowed to die (and not be provided with nourishment or liquids). Interestingly, Margaret was a nurse in earlier years, who had experience with patients in ‘vegetative’ states due to Alzheimer’s Disease. Accordingly, one may think that these decisions were well thought out.
Maplewood argued that Margaret opened her mouth to accept nourishment or liquid. Should Margaret keep her mouth closed, as she did when at the dentist, or keep her teeth clenched, they would respect her decision and not attempt to feed her by means of a feeding tube or any other medical means.
The lower Court Judge considered various evidence from general practitioners, finding it significant that Margaret “…indicates preferences for certain flavours and eats different amounts at different times…”, and that the petitioners (family), had not established that Margaret’s behaviour was a mere reflex.
Importantly, the family did not seek to have Margaret declared incapable. Therefore, the Court found that Margaret consented to being given food and water by holding a spoon or glass to her lips. This did not amount to prodding and prompting. Since Maplewood did not go further when Margaret kept her mouth closed, their actions were within the scope of Margaret’s consent.
Ian Hull and I recently blogged about informed consent in the context of Ontario’s Health Care Consent Act 1996. As discussed in that blog, contrary to widespread belief, there is no age of consent in Ontario. Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In short, the concept of maturity is used as the yardstick, rather than chronological age. As a parent, this concept has intrigued me, so I decided to explore this issue further. In doing so, I discovered the journey of a captivating boy named Abraham Cherrix.
In 2005, at the age of 15, Abraham Cherrix was diagnosed with Hodgkin lymphoma. At the time of his diagnosis, Abraham was living with his parents and four younger siblings in rural Virginia. His first round of chemotherapy, as recommended by the doctors at the Children’s Hospital of the King’s Daughters, rendered him feverish, nauseated and so weakened that Abraham’s father had to carry him from the car into the house. When doctors raised the subject of a second cycle of chemotherapy, at higher doses and to be supplemented with radiation, Abraham declined, and his parents echoed his refusal. In lieu of conventional chemo, Abraham and his parents wanted to pursue an alternative herbal treatment (which they had prospected on the internet) called the Hoxsey Method. Having been banned by the U.S. FDA 45 years earlier, and having been deemed by the American Medical Association to be quackery, the Cherrix family sought treatment with the Hoxsey Method at the Bio-Medical Center in Tijuana, Mexico.
By the summer of 2006, the Accomack County Department of Social Services had determined that Abraham was not receiving ‘appropriate life-saving care’. Abraham’s parents were charged with medical neglect and officials took joint custody over the teen and ordered him to report to the hospital for chemotherapy treatment. A last-minute stay was obtained by the family and they regained full custody of their son. A month later, Abraham’s parents were cleared of the charges of medical neglect, and a consent decree was reached under which Abraham was permitted to pursue the Hoxsey Method as long as he was appropriately monitored by a board-certified oncologist, and by the court, until he turned 18.
Abraham’s case sparked a nationwide controversy. No one questioned that Abraham’s disease was both serious and life-threatening. The flame to the kindling: statistics showed that the success rate in curing Hodgkin lymphoma after three rounds of chemo was nearly 90 percent. The key issue that arose from Abraham’s refusal to subject himself to a second round of chemotherapy was this: When is a minor able to make autonomous decisions about his or her own health care; to consent, or refuse to consent to health care treatment on their own behalf? Like most states, the age of majority in Virginia is 18. However, in response to the difficulties faced by the Cherrix family in their wish to pursue an alternative treatment, the Virginia legislature passed a bill on February 23, 2007 called “Abraham’s Law”. This law would allow minors older than 14 to refuse life-prolonging treatments with the agreement of their parents on the condition that such a decision (to refuse medical treatment) is made in good faith and in the child’s best interests.
Abraham is 22 years old now and living in the small town of Floyd, in the Blue Ridge Mountains of Virginia. In January, he learned that the cancer had returned to his left lung.
Across Canada, there currently exists an ‘opt-in’ framework for organ donation. Also known as ‘express consent’, this framework is defined by the presence of an explicit mechanism (e.g. signing of a donor card or registration with a regional organ donation society) by which one makes their wishes known. Our least populated province may be the first to eschew this system.
As reported on Tuesday, Health P.E.I. is considering a shift towards an ‘opt-out’ donation program in an effort to increase the organ yield in their province. Under such a ‘presumed consent’ scheme, a person is automatically considered an organ donor upon their death, unless the deceased had registered their objection while alive. A presumed consent organ donation program is not a new idea; in France, Spain, Portugal, Greece, Luxembourg, Italy, Austria, Belgium Netherlands, Singapore and Germany, organs and tissues are essentially considered property of the state unless one actively opts out in his/her lifetime. By 2015, Wales hopes to become the first in the UK to join the opt-out trend.
Are there advantages to a presumed consent regime? Don Mills, CEO of Corporate Research Associates summed it aptly: “Most people, if you ask them directly to become an organ donor, they probably will. But if you make them work for it, they’re probably not going to pay too much attention.” A 2006 U.S. meta-analysis concluded that indeed, opt-out programs had a ‘positive and sizeable effect on organ donation rates’. Nonetheless, in 2007, the Citizens Panel on Increasing Organ and Tissue Donation rejected a presumed consent framework as a means by which donation rates in Ontario could be boosted, and referred to such a framework as ‘too passive a method to be a clear statement of an individual’s intent.’
Canada’s donation rate (14.4 donors per million population) is one of the lowest in the developing world, and a report released by the Canadian Institute for Health Information earlier this year showed that across the nation, living and deceased donor rates have stagnated since 2006. 30% of people waiting for an organ transplant in Canada die on the waiting list. Organ donation is a hot topic at present, particularly in the wake of double-lung recipient Hélène Campbell’s herculean efforts in the social media arena to engage both public discussion and personal reflection. This conversation is clearly long overdue. Will P.E.I.’s voice lead the way?
Jennifer Hartman, guest blogger
[In the spirit of full disclosure, the author’s father-in-law is a member of the Health P.E.I. Board.]
The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient’s consent, or where the patient is incapable the patient’s substitute decision-maker: section 10 of Ontario’s Health Care Consent Act ("HCCA"). The onus is on the health practitioner to decide whether the patient is capable and can give consent. The range of persons within the HCCA’s s. 2(1) definition of "health practitioner" is broad.
A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner’s finding that a person is incapable with respect to the treatment. The Board may confirm the health practitioner’s finding or may determine that person is capable. Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court. The court may exercise all the Board’s powers, substitute its opinion for that of the health practitioner’s, or refer the matter back to the Board with directions for rehearing in whole or in part.
The standard of review for the Board’s decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII),  1 S.C.R. 722. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence.
Courts tend to carefully review appeals from Board findings of incapacity. In Starson v. Swayze, the Supreme Court upheld the trial judge’s overturning the Board’s finding of incapacity. The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so. In Re Koch, the Board’s finding of incapacity was overturned. Again, the court found that the conclusions of the Board were not supported by the evidence from the examination. Also, the examination itself was insufficiently probing to support the conclusions drawn. In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board’s finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner. The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization. The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.
Have a great day,
Christopher M.B. Graham – Click here for more information on Chris Graham.
On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.
The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.
The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.
Bianca La Neve
Bianca V. La Neve – Click here for more information on Bianca La Neve.