Tag: health care

11 Feb

Could the pandemic override a patient’s rights under the Health Care Consent Act?

Stuart Clark General Interest Tags: , , , , , , , , , , , , , , 0 Comments

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.

Thank you for reading.

Stuart Clark

27 Apr

Encouraging Discussion About End-of-Life Wishes

Nick Esterbauer Elder Law, Estate Planning, Health / Medical, Power of Attorney Tags: , , , , , , 0 Comments

COVID-19 has prompted innovation and legislative updates in terms of the way that lawyers can assist our clients with estate and incapacity planning.  A new tool created by a professor at my alma matter, Queen’s University, has recently emerged to supplement formal planning by making it easier for clients to create end-of-life treatment plans and to discuss their end-of-life wishes with their families and health care teams.

The Plan Well Guide is a free online tool that allows users to formulate a “Dear Doctor letter”, which can be provided to a physician for discussion and can be reviewed with family members (or otherwise an attorney or guardian of personal care) to ensure an understanding of the person’s wishes during a health crisis.  The website also includes other information and resources relevant to end-of-life decision making.

I went through the process of creating an end-of-life plan using this resource and found it to be user-friendly and straightforward.  Some highlights of the Plan Well Guide include the following:

  • There are prompts that ask whether a user has a Power of Attorney for Personal Care and Will in place, which may act as a prompt to obtain a lawyer’s assistance if necessary.
  • The website illustrates the user’s wishes, with examples to confirm the accuracy of the information that the user inputs.  Where the illustration is not consistent with the user’s actual wishes, the user can go back to modify priorities to better reflect their wishes.
  • Quizzes to ensure proper understanding of terms such as ICU treatment, comfort care, and the nature of resuscitation.
  • There are prompts for both outstanding questions or issues for discussion with a healthcare provider and explanations of wishes to provide those reading the document with a better understanding of the user’s rationale behind their wishes.

Especially in the midst of the current pandemic, tools like this that make end-of-life planning more accessible, while having the potential to expose deficiencies in incapacity or estate planning and encouraging an open discussion of wishes in terms of medical treatment, can be helpful resources.

Thank you for reading.

Nick Esterbauer


Other blog posts that may be of interest:

10 Aug

Is Long Term Care Insurance Something You Should be Thinking About?

Ian Hull Elder Law Insurance Issues Tags: , , , , , 0 Comments

Last week, Suzana’s blog post discussed longevity planning and Powers of Attorney for Personal Care (POA PC). She mentioned that, while financial and estate plans tend to focus on assets, a longevity plan or a POA PC is important in order to address other issues such as quality of life planning and health care instructions. Long-term care insurance is one instance where these plans overlap.

As life expectancy increases, planning for retirement becomes more important. The possibility that you may have health care or long-term care expenses later in life is becoming increasingly likely. Long-term care could include in-home care or moving into a long-term care facility, both of which come with high costs.

As one article, Do you need long-term care insurance?, posted on MoneySense.ca points out, long-term care insurance is more common in the U.S. than in Canada. However, although some costs for long-term care may be publicly funded in Canada, most such expenses will need to be paid for by the individual. Thus, there are several options to choose from when considering how to fund long-term care:

  • Save for retirement in amounts sufficient to cover any expenses which may arise;
  • Rely on your children or other family members to contribute financially; or
  • Purchase long-term care insurance

To illustrate the importance of thinking about how to fund possible long-term care, consider the example of a couple, one of whom becomes ill and requires long-term care in a facility. After funding this care, the other partner may be left with very few financial resources to pay for their own retirement or long-term care costs further down the road.

However, if you wait too long to purchase long-term care insurance, the premiums may be more expensive than you would like and could turn insurance into a non-viable option. This leads us back to the importance of planning. Whether you decide to purchase insurance, or save to cover any eventual expenses yourself, it is vital to plan ahead and keep in mind that the amount you may require during retirement may be greater than you expect, especially if you or your partner end up requiring care later in life.

Thank you for reading.

Ian Hull

06 Aug

Upcoming ‘Health Series’ of Blogs

Hull & Hull LLP Estate & Trust, General Interest Tags: , , , 0 Comments

Hull & Hull LLP will be posting our second ‘health series’ of blogs starting on Monday August 10th.  The series will run every Monday thereafter in the month of August, for a total of four blogs.  The following subjects will be featured:

  • Polypharmacy and Seniors
  • Multiple Attorneys for Personal Care
  • Traumatic Brain Injury
  • Palliative Care – an Overview

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

17 Feb

Delirium and Dementia – Untangling the Facts

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

Delirium and dementia – are they different? Indeed, delirium and dementia are very different and have different diagnostic criteria, although just to muddle the discussion, these syndromes can occur concurrently.

The word ‘delirium’ is derived from the Latin term delirare meaning ‘off the track’. Delirium is not a disease, but rather a syndrome that manifests as a change in mental state. It is often referred to as an acute confusional state; ‘acute’, meaning of rapid onset and short duration. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and the Canadian Mental Health Association, symptoms include:

· Problems with attention, memory and thinking
· Disturbances in consciousness and perception
· Disorientation to time
· Disruption of the sleep-wake cycle

Delirium is considered a medical emergency and it is important that the cause is investigated thoroughly. Metabolic disorders (e.g. organ failure, diabetes, hyperthyroidism, dehydration and vitamin deficiencies) are the single most prevalent cause of delirium.

Statistics suggest that 15% of older persons admitted to hospital have delirium and over 50% of older persons may develop delirium while in hospital.

Dementia is not a specific disease, but rather a clinical syndrome accompanying disorders that affect the brain. Unlike delirium, which occurs over the span of minutes or hours, dementia is a chronic, usually progressive, degenerative and often irreversible decline in mental status. Symptoms of dementia include:

· Loss of memory
· Confusion and disorientation
· Language impairment and problems with judgment and reasoning
· Disruptive and inappropriate behaviour

Dementia is an umbrella term. There are over 100 types of dementia, the most common of which is Alzheimer’s disease, which, according to the Alzheimer Society of Canada, accounts for over 64% of all dementias in Canada. Other related dementias are attributed to Parkinson’s disease, acquired brain injury, Huntington’s disease, multiple strokes, chronic drug use and long-term alcohol abuse.

Initial findings of the study, “Rising Tide: The Impact of Dementia on Canadian Society”  (Alzheimer Society, 2009) indicate that approximately 500,000 Canadians are living with dementia, 71,000 of whom are under the age of 65. The study estimates that within the next five years, an additional 250,000 Canadians could develop Alzheimer’s disease or a related dementia. The number of Canadians with dementia is expected to triple between 1991 and 2031. 

Jennifer Hartman, Guest Blogger

09 Feb

Strokes – An Overview

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

There is a common misconception that strokes are almost formulaic in nature; sort of a one-size-fits-all approach to causes and outcomes. This is actually far from the truth. Here’s a quick anatomy refresher:

Strokes are either ‘ischemic’ in origin (i.e. caused by a blood clot), or ‘hemorrhagic’ (caused by uncontrollable bleeding in the brain). Outcomes of a stroke are dependent on the severity of the stroke and the location of the damage to the brain, both of which can be assessed in an emergency setting using either CT or MRI imaging techniques.

· The cerebrum is divided into the left hemisphere and the right hemisphere. Each hemisphere is divided into portions called ‘lobes’. The effects of a stroke in the cerebrum will be dependent on the lobe(s) affected:

· The frontal lobe is responsible for motor functions and ‘executive functions’, which include reasoning, planning and problem solving, as well as one’s social graces.
· The temporal lobe is involved in speech, memory and auditory perception.
· The parietal lobe is responsible for sensory activities, including receiving and interpreting information from other parts of the body.
· The occipital lobe is located at the back of the head and is responsible for visual processing.

· A stroke that occurs in the cerebellum affects coordination and balance, and often causes dizziness, nausea and vomiting.
· A brain stem stroke, while uncommon, is particularly devastating, since the brain stem controls our involuntary functions such as breathing and heart function, as well as swallowing.

It is important to further differentiate between a stroke and a transient ischemic attack (‘TIA’). A full-blown stroke can certainly be severe enough to render one incapable of making or changing a Will, although some recovery is possible, particularly if formal stroke rehabilitation is actively pursued. In contrast, a transient ischemic attack, as the name suggests, often fully resolves within minutes or hours, although incapacity may still be an issue during the attack. Both a stroke and a TIA are medical emergencies that require assessment and treatment in a medical facility.

Statistics indicate that of every 100 people who suffer a stroke, 10 will recover completely, 15 will die, 25 will recover with a minor impairment and 50 will have a moderate to severe disability, some requiring long term care.

For more information, visit the Heart and Stroke Foundation online.

Jennifer Hartman, Guest Blogger




29 Jan

Upcoming ‘Health Series’ of Blogs

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

Hull & Hull LLP will be posting a ‘health series’ on our blog platform starting on Monday February 2nd.  The series will run every Monday in the month of February, for a total of four blogs.  As a nod to those subscribers who are estates and trusts practitioners, as well as to those subscribers who are clients of the same, the following subjects will be featured:

  • Strokes; an overview
  • Delirium vs. dementia; a quick reference guide
  • The Mini-Mental Status Examination
  • Mental illness

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.


19 Jan

Damned lies?

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

There are three kinds of lies: lies, damned lies, and statistics. – Benjamin Disraeli, British Politician, (1804-1881)

Have you ever been completely overwhelmed while reading the morning paper? 1 in 6 American men will be diagnosed with prostate cancer during his lifetime (American Cancer Society, October 2008). Studies estimate that CT scans account for as much as 2 percent of all cancers (as reported by Reuters, December 2008). People who sleep less than seven hours a night are three times more likely to develop a cold than people who sleep eight hours or more a night (Carnegie Mellon University, January 2009). Mouthwash linked with increased cancer risk (Australian Dental Journal, January 2009). How are we to interpret and digest all of this information? Data about relative risks and absolute risks – heck, it’s 6:30 a.m. and I’m lucky if I can focus long enough to read the back of the Wheaties box.

According to a January 11, 2009 article in the Sacramento Bee, ‘Risk percentages, drug benefit numbers and survival rates can be manipulated as deftly as a chiropractor cracking a back.’ An article published the same day in the Chicago Tribune cited a group of physicians at Dartmouth Medical School as saying that ‘taking time to understand the often-confusing statistics used in the medical industry, is key to making smarter decisions about your individual healthcare.’

Here are some tips to remember when wading through the 11 o’clock news:

· Differentiate between a lifetime risk and an annual risk. An annual risk is the number diagnosed each year in a population, usually expressed as a number per 1,000 or 100,000 individuals in the population. The lifetime risk is the sum of the risk of developing that disease each year, and thus sounds far more ominous.
· Where possible, re-frame the statistic. Yes, colon cancer strikes 150,000 Americans, but there are 300 million Americans, which means you only really have a 0.05 percent chance. Don’t you feel better already?
· Know your starting risk. If a drug company says their drug will result in 50% fewer deaths, then you need to ask: what was the starting risk of death? As the Chicago Tribune article so beautifully analogized: a 50% off coupon applied to a 50-cent pack of gum reaps different savings than when applied to a $35 turkey. So did you start with the gum or the turkey?
· Check to see if the study involved people similar to you in terms of age, gender, risk factors and family history. While you’re at it, double check to make sure the study referenced human subjects, as opposed to rodents.

Above all, remember that getting a disease does not, by a long shot, mean dying of it.

Intrigued? Try perusing “Know Your Chances: Understanding Health Statistics”, S. Woloshin, L.M. Schwartz, and H.G. Welch, University of California Press, November 2008. My favourite: “Struck By Lightning: The Curious World of Probabilities”, J.S. Rosenthal, HarperCollins Canada, September 2005. 

Jennifer Hartman, Guest Blogger

11 Dec

I’m dying. No seriously. I looked it up on the internet.

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

You’ve heard the expression, "A little knowledge can be a dangerous thing".

A few weeks ago, my husband (he begged me not to name him) was washing the dishes when he suddenly cried out in pain.  He had, by the strangest of circumstances, somehow managed to drive an uncooked spaghetti noodle under his thumbnail.  Ow, indeed.  Since I couldn’t actually see the noodle under the nail, I figured the noodle was now somewhere in the middle of the meat of his thumb, and therefore suggested he go see his doctor the next day and get on a course of prophylactic antibiotics before things got worse.  He ignored my advice, at which point I suggested that maybe he should soak it in hot water.  Say, for 8 to 9 minutes.  Until al dente.

Two nights later, at 3 a.m., I awoke to the glow of his blackberry as he lay there in the dark, frantically googling ‘nail bed infection’.  He was in his doctor’s office hours later.

There’s a name for it.  Cyberchondria.  According to a recent Globe and Mail article, cyberchondria is ‘hypochondria on metaphorical steroids, its effects amplified by the staggering number of disastrous outcomes the Web can provide.’  In a Microsoft study released in late November, researchers discovered that after typing ‘headache’ into a search engine, ‘caffeine withdrawal’ and ‘brain tumour’ came up with the same frequency.  As the article suggests, the Internet truly is the hypochondriac’s perfect storm.

Needless to say, it is the physician who bears the brunt of this ignorant and undiscerning application of "Dr. Google’s" expertise.  You’ve seen them; the ones in the waiting room with their printouts clutched in their hands, ready to storm their doctor’s office with a proclamation of impending death.  They’re the real reason your GP is running behind today.

My husband is on antibiotics now, but still has tenderness and numbness in that thumb.  Which should at least slow down his Google searches for a few more days…

Jennifer Hartman, guest blogger

09 Dec

The Beers List – definitely not your holiday shopping reminder

Hull & Hull LLP Estate & Trust Tags: , , 0 Comments

The administration of drug therapy in the elderly is a complex undertaking.  As a person ages, they undergo physiological changes; changes in body composition, gastrointestinal, liver and/or renal function that can alter both the therapeutic and toxic effects of drugs.  Created in 1991, and most recently updated in 2003, the Beers List includes drugs that ‘are either ineffective in the elderly or put seniors at an unnecessarily high risk when safer alternatives are available’ (CBC News, September 2007).  The list, compiled by a group of American experts led by Dr. Mark Beers, was created to determine which drugs should be used in nursing homes, since seniors are known to be particularly at risk for adverse side effects, including falls (see blog of November 28, 2008), depression, and even death.

Last year, the Canadian Institute for Health Information reported that the Beers List has resulted in a reduction in use of the listed drugs, as well as a reduction in the number of adverse side effects linked to these prescription medications.  It is, however, not all good news across the board.  According to CIHI, 25% of seniors are still receiving at least one drug on the Beers List.  Further, a 2005 CBC investigation found that in spite of making up only 13% of the population, seniors accounted for over 44% of all deaths reported to Health Canada’s adverse drug reaction database between 1999 and 2003.

With families gathering this month for various holiday celebrations, it may be an appropriate opportunity to suggest a ‘brown bag review’ for mum or dad.  Just like the name suggests, a pharmacist or geriatrician can review all of mum’s medications (both prescription and non-prescription, including herbal products) and check for correct dosage, frequency, duplication of drug therapy, discontinued products, and potential interactions.  It goes without saying that changes to a drug regimen should only ever take place under the direction of one’s physician.

Note:  In 2007, CBC News ‘Canadianized’ the Beers List to reflect only those drugs available here in Canada, and also took the liberty of adding a number of benzodiazepines (medications that are prescribed for the treatment of anxiety and sleep disorders and have been found to increase the likelihood of a fall four-fold) that are available here, but not in the States.  Click here to access the modified version.

Stay tuned Thursday for a much lighter-hearted healthcare blog.

Jennifer Hartman, guest blogger


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