Tag: Health / Medical

02 Oct

To Be or Not To Be: The Right to Die in Canada

Hull & Hull LLP Health / Medical Tags: 0 Comments

In several countries and states in the US, those suffering from terminal illnesses which give rise to unbearable mental or physical suffering are able to choose to die with the assistance of a medical physician. This controversial route is often seen as the best option in dire circumstances, where one wishes to maintain dignity in the face of impending death.

Only days before his own death, respected physician Dr. Donald Low made a public plea for Canadians to encourage assisted suicide legislation to be passed in Canada. Dr. Low’s views are being echoed by the vast majority of Canadians in recent years, where some statistics show that 80% of Canadians support the idea of allowing a medical doctor to assist a fully informed and competent patient suffering from a terminal illness to end their life.

Currently, no Canadian jurisdictions have right-to-die legislation in effect; however, for the first time in Canada, Quebec tabled Bill 52 which contains draft right-to-die legislation this past June. Federally, assisted suicide is illegal across Canada due to the application of section 241 of the Criminal Code; however, at least one recent Supreme Court ruling has questioned the constitutionality of this Criminal Code provision.

If Bill 52 passes and becomes law, Canadians may have the opportunity to create living wills which spell out circumstances in which euthanasia is a desirable alternative. Clearly, the controversy associated with such a drastic shift in attitude by the legislatures raises concerns for many. One such concern is based upon the need to ensure that the elderly do not feel compelled to agree to assisted suicide in order to reduce financial burdens on their families. Clearly, the capacity to decide to end one’s own life is also a serious issue which requires clarification by the legislatures.

Assisted suicide legislation will likely take some time to pass. Bill 52 has only passed its first reading in Quebec, and some feel that the Bill touches upon federal jurisdiction, raising issues as to the constitutionality of the proposed laws. Regardless of the outcome of currently tabled law and judicial findings, it appears that Canadian attitudes are shifting towards a greater acceptance of the right-to-die, which may lead to serious changes in laws reflecting these controversial policies in years to come.

Thank you for reading!

Suzana Popovic-Montag

25 Sep

Google’s Newest Mission: Immortality

Hull & Hull LLP Health / Medical Tags: 0 Comments

Google’s launch of its new biotechnology company called Calico (short for the California Life Company), an organization aimed at extending life expectancy through the curing of diseases related to aging, was announced last week.  The illnesses that Calico ambitions to tackle include various cancers, age-related mobility issues and mental incapacity, and aging itself. 

Since 2011, Google has invested in “numerous so-called moonshots”, including cars capable of operating without a driver and pieces of clothing that also function as computers.  At first glance, this new venture may appear to be just as far-fetched as its predecessors.

While the mission of the organization may seem unrealistic, there has been recent progress in the treatment of aging and aging-related illnesses.  Just last week, a study was published that claims that aging can be reversed on a cellular level through the combination of a plant-based diet, physical activity, and stress reduction. 

The two-group, five year study was coordinated by the Preventative Medicine Research Institute at the University of California, San Francisco.  The long-standing theory that telomeres shorten with age offers an explanation to the result.  Telomeres function to protect DNA and reduce in length as cells continue to divide.  Once a telomere becomes too short, the DNA that it protected is exposed to fraying by external elements.  Eventually, the DNA becomes damaged past the point of cellular repair mechanisms and ceases to replicate.  The remaining cells then expire, without the replacement by new cells.  Shortened telomere length has also been linked to the development of cancer, heart disease, obesity, stroke, and diabetes.

Telomere length is generally correlated to age.  Prior to this study, it was widely believed that telomeres could only shorten, without the capacity to re-extend.  Healthy lifestyle, however, is now believed to result in the lengthening of telomeres.  The study group saw an overall increase in telomere length within the cells of approximately ten percent over a period of five years, contrasted with an average reduction of three percent every five years for the general population.

Once Calico begins its operations, it is expected to fund similar studies that it hopes will reveal further anti-aging and disease-curing potential.

Thank you for reading!

Suzana Popovic-Montag

12 Sep

Hospital Survival Rates Increase

Hull & Hull LLP Health / Medical Tags:

Nosocomephobia describes an excessive fear of hospitals. Richard Nixon, who likely suffered from the affliction, once famously said, “If I ever go into the hospital, I’ll never come out alive.”

While checking the death rate at your local hospital may sound morbid, in Canada, it may offer peace of mind.

In Canada, the rate of deaths in hospital decreased in 2011-2012, according to a report by the Canadian Institute for Health Information. The death rate for each hospital is calculated based on the number of deaths at the hospital and the number of deaths expected in the region.

Of the 82 hospitals in Ontario, only four had death rates that were higher than the national average. All hospitals were found to have made improvements.

Holly LeValliant

16 Jul

Crematorium’s Plans Conflict with Neighbours’ Right to Clean Air?

Hull & Hull LLP Health / Medical Tags:

Crematoriums, according to a new regulation, are not supposed to be built closer than 300 metres away from residential areas. But, in Moore Park, in the GTA, the crematorium was built only 16.5 metres away from the neighbourhood.

“When I go outside and sniff, I wonder ‘Is this human remains or animal remains,’ according to a resident interviewed by the Toronto Star.

The crematorium applied to the Ministry of the Environment, and was granted the right to build new cremators that will allow for more frequent burns. The crematorium argues that the emissions produced by the cremators will be reduced and regardless, they do not need to follow the new regulations as their original facility was built prior to the regulations.

The local councillor has launched an appeal of the Ministry’s decision, arguing that the new cremators should be subject to the new regulations. The purpose of the regulations, according to the councillor, is to protect public health. Dr. Perry Kendall, B.C.’s chief medical health officer, warns that emissions from crematoriums pose potential health risks. Cremation, according to Dr. Kendall, could cause the release of contaminants, including mercury, cadmium, and lead.

As cremation becomes a more popular choice, the issue of emissions from crematoriums is likely to grow.

Holly LeValliant


15 Jul

The Kindness of Strangers

Hull & Hull LLP Health / Medical Tags: 0 Comments

Recently, the Welsh Assembly backed legislation which will create major reform for organ donation by switching from an opt-in to an opt-out system. Once this legislation comes into force in 2015, consent for organ donations will be presumed unless expressly refused by potential donors. Wales will join countries such as Spain, Poland, Sweden and many more which currently use a similar opt-out scheme. For these nations, the belief in the ‘kindness of strangers’ is no longer relied upon for organ donation.

This new Welsh legislation reflects studies similar to those conducted by a leading Canadian charity, which stated that while 90% of Canadians support organ donation, under a quarter have expressly opted to legally signify their intentions to donate.

Organ donation is a controversial subject for religious, ethical and political reasons. Canada continues to rely on an opt-in system in all provinces and territories due to concerns regarding whether a potential donor has stated their wishes clearly enough to allow for organ harvesting.

These tensions will continue as the trend towards longer waiting lists and less donors is predicted to increase. Statistically, “the older sector of the population is both a larger consumer of donated organs and a smaller contributor of donated organs.” Therefore, as the Canadian population ages, the pressure to explore alternative options will escalate, and the friction between principles of self-determination and the need for greater access to viable donors will likely intensify.

If Canada does chose to switch to an opt-out system, then it will be of even greater importance for all individuals who are concerned about opting-out of donating to ensure that their intentions are clearly expressed in their will and Powers of Attorney. This is especially so as relying on donor cards is problematic as they can be easily misplaced; and testimony of relatives can be misinformed. Wills, however, are always readily consulted and available, and copies are kept in the possession of the estate practitioner who drafted them.

Indeed, even without such a bill present in Canadian legislatures today, it is still of the utmost importance for Canadians to express their wishes in a legally binding document as opposed to relying on relatives, who’s own wishes may conflict with those of a potential donor after they have passed.

Thank you for reading!

Ian Hull

01 May

A Vial Dispute

Hull & Hull LLP Health / Medical Tags: 0 Comments

 When a person dies, those left behind are tasked with the challenge of dividing and distributing his or her property.  Disputes often erupt about how to split this property, and the answers usually lie in a will or statute setting out to whom the property is to go.  It is only in very rare circumstances that the discussion turns to whether certain items count as property.  The issue becomes particularly complicated when the putative property consists of human reproductive materials.

In J.C.M. v. A.N.A., the Supreme Court of British Columbia recently dealt with such an issue in the context of a separation agreement.  The couple, both women, had obtained sperm from an anonymous donor through an American company.  Each spouse had given birth to one of their two children using the donated gametes, so that their children were biologically related to each other.  Several years later, the couple separated.  The separation agreement divided all joint property of the relationship.  At the time of separation, they did not turn their minds to the remaining samples of sperm then stored at a facility in Vancouver.  Several years later, J.C.M. entered a new relationship and wished to use the remaining samples to conceive so that their child would be biologically related to the two children from her prior relationship.  A.N.A. wanted the vials destroyed and refused to consent to their release. 

Faced with the difficult decision, the court had to consider whether the vials were "property", such that they fell under the terms of the separation agreement.  There is a longstanding common law rule that parts of the human body are not property.  The court looked closely at an American case, Hecht, which dealt with whether or not a deceased testator could bequeath gametes to his girlfriend by way of his will.  The American courts declined to decide whether human gametes were property generally, deciding only that they were property for the limited purpose of the applicable legislative provisions.  At one stage, it was decided that 20% of the sperm vials belonged to Ms. Hecht based on a settlement agreement pertaining to the testator’s will between herself and his existing children.  This was overturned on appeal, wherein the court found that, although the vials were the testator’s property for the purpose of wills legislation and available for Ms. Hecht’s use, they were not subject to division through an agreement. 

Weighing Hecht and several other American and Canadian cases, the B.C. court held that, in this context, the vials were property and therefore were to be divided as such pursuant to the terms of the separation agreement.  Important to the court’s reasoning was that A.N.A. would not have a parental relationship to any children that might be born to J.C.M.

While some other jurisdictions have taken legislative steps to address this question, the issue of whether or not gametes can be dealt with by way of will in Ontario is still evolving.  As reproductive technology continues to advance, new questions will inevitably arise. 

Thanks for reading.

Suzana Popovic-Montag

13 Feb

A Beginner’s Guide to Advance Directives

Hull & Hull LLP Health / Medical Tags: 0 Comments


Advance directives, in general terms, are ways through which people can indicate ahead of time whether they would wish to accept or refuse certain types of medical treatment in the event that they become incapable of making that decision when that treatment is needed. 

Colloquially, advance directives are usually understood to mean written forms provided by hospitals, wherein individuals give instructions about the sorts of treatment they might like in an end-of-life care scenario if that individual is not able to speak for him or herself.  There is some confusion, in practice, between the more general meaning above, and this second, more colloquial meaning, and how these advance directives might interact with an individual’s power of attorney, or the instructions of his or her next of kin. 

The rules regarding consent to medical treatment in Ontario can be found in the Health Care Consent Act (the "HCCA").  In order for treatment to be administered, the patient must give informed consent.  If the patient is incapable of giving that consent, then s. 20 provides that the person’s substitute decision maker is responsible for giving or withholding consent.  This section also provides a hierarchy of who the substitute decision maker will be.  At the top of the list is a court-appointed guardian, followed by the patient’s attorney for personal care.  Further down the list are the person’s spouse, children, parents, siblings, and other relatives.   

The HCCA provides further under s. 21 that the substitute decision maker must make the decision according to certain principles.  If the substitute decision maker knows of a wish that the incapable person expressed while still capable and over the age of 16, then he or she is obligated to give or refuse consent in accordance with that wish.

This is where advance directives come into play.  They do not bind doctors or other medical professionals; rather, they bind substitute decision makers in giving or refusing consent to doctors or medical professionals by providing proof of the incapable individual’s prior capable wishes. 

These wishes can be expressed in a power of attorney for personal care as well, either by limiting the types of treatment to which the donee may give or refuse consent, or specifying the grantor’s prior capable wishes.  In this sense, a power of attorney itself is a form of advance directive.

If there is no prior capable wish, a substitute decision maker must make a decision in accordance with the incapable person’s best interests, a complicated and often contentious determination.  See my recent blog post on the Rasouli matter and Ian Hull’s recent blog on the care of Desmond Watson for a few examples of high profile debates over best interests.

As difficult as it may be to decide what care you might want in the event of a loss of capacity, it can be even more difficult for others to decide what care you might want.  Advance directives, either in the form of a power of attorney for personal care or in the form of written directives given in hospital, can be powerful tools to ensure that your wishes are followed.

Suzana Popovic-Montag

05 Feb

Abraham Cherrix: At The Intersection of Law, Health, and the Right to Self-Determination

Hull & Hull LLP Health / Medical, In the News Tags: , , , , , , , , , ,

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.

Jennifer Hartman


18 Dec

People Living Longer but Sicklier Lives

Hull & Hull LLP Health / Medical Tags:

I recently watched a documentary called Hungry for Change about the impacts of dieting on the body. Much of the so-called diet food that we eat, according to the film, causes obesity and other chronic diseases, because while it is designed to look like food, it is often loaded with sugar, has little nutritional value, and causes people to never feel full.

People in most areas of the world may be leading longer lives, but they are also living with higher rates of chronic disease, according to a study reported in the National Post last week. “The biggest contributor to the global health burden isn’t premature [deaths], but chronic diseases, injuries, mental health conditions and all the bone and joint diseases,” according to the study lead, Christopher Murray, the Director of the Institute of Health Metrics and Evaluations at the University of Washington.

One solution to reducing chronic disease, according to the film, is “juicing”, which assists the body to absorb the maximum amount of nutrients from vegetables and fruit. I, for one, am giving the method a try, and have tried a few green concoctions that have tasted about as good as they look.

Holly LeValliant

12 Dec

The Judicial Treatment of “Treatment”

Hull & Hull LLP Health / Medical Tags: 0 Comments

On Monday, the Supreme Court of Canada heard the difficult case of Hassan Rasouli. 

Mr. Rasouli is a patient at Sunnybrook. He underwent brain surgery in 2010 in order to remove a tumour. Complications following the surgery led to severe brain damage. Mr. Rasouli has been on life support ever since. 

His doctors want to remove the machines keeping him alive, but his wife refuses to give up on him.

The struggle over Mr. Rasouli’s fate has made news across the country. His doctors claim that he is in a permanent vegetative state with no hope of recovery. His family claims that he does have some level of consciousness. In support of their claim, they have produced video of him wrapping his fingers around a ball when thrown to him, and claim that he responds to their voices. 

A functional MRI scan has shown that his brain responds when Mr. Rasouli is asked to imagine performing specific tasks. The technology measures blood flow in the brain in real time and has been used as a way to communicate with other unresponsive patients.

The legal question at the heart of the case is whether or not the withdrawal of life support is included in the definition of "treatment" under Ontario’s Health Care Consent Act (the "HCCA"). Both the Superior Court and the Court of Appeal have ruled that it does. The Rasouli family and the staff at Sunnybrook currently await the decision of the Supreme Court.

The HCCA governs the rules for obtaining consent for treatment in Ontario. It provides that where a person is incapable of giving consent on his or her own, the person’s substitute decision maker (in Mr. Rasouli’s case, his wife, Parichehr Salasel) must consent on his or her behalf. 

The definition of "treatment" under the HCCA is highly technical and critical to the scheme of the legislation. If drawn too narrowly, it could give doctors the power to make unilateral decisions about a patient’s care. If drawn too broadly, it could give patients the power to demand procedures or medications that are inappropriate or ineffective for their conditions.

Where the incapable person has expressed a wish about a course of treatment while capable, a substitute decision maker is obliged to follow it. Where no such wish has been expressed (as in Mr. Rasouli’s case), substitute decision makers are required to make decisions in the best interests of the incapable person. When doctors and substitute decision makers disagree about consent to "treatment" under the HCCA, the statute provides that doctors may challenge the choice of a substitute decision maker at the Consent and Capacity Board, but only if the definition of treatment applies. 

Decisions about withdrawing life support are never simple.  Tragically Mr. Rasouli’s situation is not unique. Ian Hull recently blogged about the story of Maria Watson’s struggle to keep her husband alive on life support. This case should serve as a reminder to have a Power of Attorney for Personal Care in place to ensure that your loved ones follow your wishes respecting end-of-life care in the unfortunate event that they need to be followed.

Suzana Popovic-Montag


Enter your email address to subscribe to this blog and receive notifications of new posts by email.