Tag: Health / Medical

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”

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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

07 Dec

World’s Oldest Person Dies at 116

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Bessie Cooper, the woman who was listed as the oldest living person died on Tuesday, December 4, 2012 at the age of 116.  The Georgian woman was declared the world’s oldest person in January 2011.  She subsequently lost the title to another woman, but regained it when that woman died later that year.  The title of world’s oldest person now belongs to 115 year old Dina Manfredini of Johnston, Iowa. 

The oldest known person of all time was Jeanne Calment, a French woman who lived to be 122 years and 164 days old and died in 1997.  She is reported to have consumed olive oil with every meal, ate lots of chocolate and drank port wine.  She saw the Eiffel Tower being built and she once met Vincent Van Gogh over 100 years ago when she was 13 years old.

People who live to 110 are known as super-centenarians.  Although such people are very rare (there are only about 300 – 450 super-centenarians in the world) you can still do your best to achieve longevity.  Here are some (unsurprising) tips on how to increase your life span:

1.    Reduce calorie consumption

A behavioral factor favoring longevity is calorie control.  Eat off small plates and pay attention to fullness cues.  Eat only until you feel about 80% full.  Calorie reduction has been proven to increase the life span of rats in laboratory tests.

2.    Reduce fat consumption

25 to 35% of your total calories should come from fat.  When you do eat fat, choose fish, nuts and foods prepared with olive oil.  The fat sources in these foods are high in monounsaturated and omega-3 fatty acids.  Saturated fat in red meat, full-fat dairy products and butter should be used sparingly, and all trans fat should be avoided.

3.     Avoid processed foods

Stick to whole grains, fruits and vegetables and aim for 1 to 2 cups of raw vegetables each day.

4.    Drink Tea

Tea is a staple for centenarians in Japan and China.  It is not unusual for tea lovers to consume four to six cups a day.  Although there is no scientific consensus on how many cups of tea per day reap more health benefits, intakes above two cups are associated with fewer cognitive declines.  Both black and green tea are good for you, so have a cuppa and enjoy!

In addition to these important dietary habits, you should exercise regularly, maintain a healthy body weight, and don’t smoke if you want to maximize your life span. 

May you live to 120!

Moira Visoiu – Click here for more information on Moira Visoiu

06 Dec

The Private Life of a Palliative Care Doctor

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As estate practitioners, we usually meet our clients shortly after the death of a loved one. We hear stories about the deaths that precipitate so many of our files, but we rarely, if ever, are confronted with clients who are dying. 

The National’s series “Public Health, Privates Lives” focuses on how the work of doctors and nurses impacts upon their private lives. One fascinating and inspiring episode looks at the life of Dr. Jeff Myers, the head of Palliative Care at Sunnybrook Hospital. 

Dr. Myers’ job involves acting as an advocate for dying patients. He points out that our natural inclination as a society is to heal and fix problems, and that this is in direct contrast to the reality that we all die. He states that his role is not to augment the disease process, but to make the patient as comfortable as possible in their final days. In the clip, he visits with two patients and asks them what is important to them in the last few days or months of their lives. They both answer that they want to be free of pain. He asks one patient to “celebrate the small victories” rather than focus on what cannot be attained. 

The best moment is when Dr. Myers asks us to consider what we would be doing differently– if we had 3 months or if we had 9 months left to live.

It is a short clip and worth watching if only to remind ourselves that we all die and that we should always be asking ourselves if we are spending our time on the things that are most important to us.

27 Nov

Gene Mutation Discovered that Predicts the Time of Death”

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A University of Toronto team of scientists, led by a neurology professor, discovered a gene variant that predicts the time of day that you are most likely to die.

The study was originally conducted to try to find out why older people have difficulty sleeping and to try to identify early signs of Parkinson’s or Alzheimers, but branched off when a connection was found between sleep patterns and the time of death.

Dr. Andrew Lim’s study found a link between sleep patterns and the gene that plays a role in your internal biological clock. Morning people (defined as those who wake up before 7 a.m.) are more likely to have an “adenine nucleotide base”. Late-risers are more likely to have a “guanine nucleotide base.” Those who wake up somewhere in between have both gene variants.

What does this mean for the time of your death? If you are an early riser, you are more likely to die at around 11 a.m. If you are a late riser, you are more likely to die at around 6 p.m.

It seems that the Grim Reaper is a part time job with split shifts.

Holly LeValliant

22 Oct

Life and Death Under the Health Care Consent Act

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End of life decisions are painful and difficult subjects to face. Nobody wants loved ones to suffer needlessly from terminal illness, but nobody wants to let their loved ones go before their time. This deeply personal tension is playing out in the hospital room of Desmond Watson at Oakville-Trafalgar Hospital even as I write.

Desmond and his wife Maria have been married for 71 years. She has kept a bedside vigil over her husband for nearly three years.  He is suffering from progressive dementia from which the hospital medical team believes he has no realistic chance of recovery. He has shown few signs of consciousness for some time. Their story, featured on the front page of the Toronto Star on October 20, 2012, is simultaneously heartbreaking and inspiring.

Conflict developed between Desmond’s family and his medical team about to what sort of measures should be taken to keep him alive. Maria argued that Desmond is a devout Catholic, and had expressed his beliefs that life is sacred and that he would not want his life support withdrawn. The medical team believes that they are only prolonging his suffering. In order to resolve this intractable conflict, they turned to Ontario’s Consent and Capacity Board (“CCB”) in early 2011.

Desmond had executed a Power of Attorney for Personal Care in 2001, which named Maria his substitute decisions maker. The Health Care Consent Act clarifies the principles which a substitute decision maker must follow when making decisions about treatment. S. 21 sets out that “[i]f the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with that wish”. If there is no known applicable wish, or it is impossible to comply with the wish, the decision must be made in the incapable person’s best interests. The Act goes on to provide guidance on how to determine what the incapable person’s best interests are in s. 21(2). One must consider the incapable person’s values and beliefs, the likely effects of treatment or its alternatives, and any wishes they may have expressed while not capable. 

Maria testified that Desmond’s beliefs would mean that he would wish to be kept alive and undergo aggressive treatment. The CCB found that Maria had indeed complied with her obligations under the Act. The CCB decision is available on CanLii (DW (Re), 2011 CanLII 18217 (ON CCB).)

Tragically, the situation the Watsons find themselves in is not unique. As Ontario’s population ages and life-extending technologies improve, these conflicts will only increase in frequency.

To ensure your end-of-life choices are respected, put that wish in writing while capable, ideally in the Power of Attorney itself. 

Ian M. Hull

15 Oct

Consent to Treatment: A Closer Look

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Section 10 of Ontario’s Health Care Consent Act 1996 (“the Act”) states that a health practitioner shall not administer a treatment for a person unless the person has given consent (if capable with respect to the treatment) or if the person’s substitute decision maker has given consent on the person’s behalf (if incapable with respect to the treatment). Simple concept at first blush, but a closer examination reveals some complexities, a handful of which we’ll explore below.

What constitutes informed consent?

One of the defining elements of consent to treatment, is that such consent must be “informed”. By framing consent in this way, the Act promotes communication between health practitioners and their patients or clients and encourages patients to exercise their autonomy. According to the Act, a consent to treatment is informed if, before giving it,

a) The person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision and
b) The person received responses to his/her requests for additional information about the treatment.

Information provided by the health practitioner must include the nature of the treatment (diagnosis and recommended treatment), expected benefits, its material risks and side effects, alternative courses of action (if any) and the likely consequences of not having the treatment. If the patient is deemed to be incapable, then the practitioner must identify the substitute decision-maker (s. 20 (1) of the Act sets out a specific hierarchy of individuals/agencies who may give or refuse consent) and go through the same process to obtain consent.

In a tragic case decided in 2009 (upheld on appeal earlier this year) involving catastrophic injury to an infant sustained at birth as a result of an unsuccessful attempt at a forceps-assisted delivery, the trial judge found that the doctor in question failed to obtain informed consent to that procedure. Risks and benefits of the assisted delivery had not been explained to the mother, nor had the option of continuing to push been presented to her for consideration. 


What constitutes informed refusal?

Election to forgo the treatment recommended by the practitioner after the disclosure of the relevant information constitutes “informed refusal”. A competent patient may refuse a treatment, even if it is in their best interests to have the treatment administered. The CMA Code of Ethics (2004) states that the practitioner has a responsibility to respect the right of a patient to reject any medical care recommended.

The Act considers refusal of consent to include withdrawal of consent.

When may the requirement for consent to treatment be waived?

Consent from a capable patient may be waived if the situation is deemed by the health practitioner to be an emergency (i.e. the person is experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly). Similarly, a treatment may be given without consent to an incapable person if there is an emergency and the delay required to obtain consent/refusal on the person’s behalf will prolong the person’s suffering or will put the person at risk of sustaining serious bodily harm. Interestingly, in an emergency situation, in the event that a substitute decision-maker is present and refuses to consent to treatment and is not acting in accordance with prior known wishes or is not acting in the patient’s best interests, then s. 27 of the Act gives the practitioner the power to administer treatment despite the refusal.

What is the age of consent in Ontario?

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. The issue of age of consent has come under the spotlight in recent years as a result of Ontario’s school-based HPV (Human Papillomavirus) immunization program for Grade 8 girls. All of Ontario’s Public Health Units request parental consent before HPV immunization at school-based clinics. That being said, a student who is deemed to be capable with regards to consenting to or refusing the immunization has the right to do so, irrespective of whether their parent signed or did not sign the consent form on their behalf.

In their Consent to Treatment Policy (#4-05), the College of Physicians and Surgeons of Ontario supports this framework by stating that "the capacity to exercise independent judgment for health care decisions varies according to the individual and the complexity of the decision at hand. Physicians must make a determination of capacity to consent for a child just as they would for an adult."

Jennifer Hartman and Ian M. Hull 


  1. ‘Health practitioner’ refers to a member of a College under the Regulated Health Professions Act, 1991, a naturopath registered as a drugless therapist under the Drugless Practitioners Act or a member of a category of persons prescribed by the regulations as health practitioners. Examples include (but are not limited to) physicians, dentists, physiotherapists, and nurses.
  2. As per the HCCA, ‘treatment’ means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.


26 Sep

Organ Donation: Will P.E.I. Be The First Province to Wade Into the Presumed Consent Waters?

Hull & Hull LLP Estate & Trust, Ethical Issues, General Interest, Health / Medical, In the News Tags: , , , , , , , , , , , 0 Comments

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.]

20 Sep

Majority of Canadians have not made end-of-life care decisions

Hull & Hull LLP Health / Medical Tags:

80 percent of Canadians do not have a Living Will to express what types of care they would and would not accept to prolong their lives, according to a national poll. Less than 50 percent have discussed the issue with their loved ones, and only 9 percent have discussed their wishes with their doctor.  Less than 50 percent have chosen who would act as their substitute decision maker if they became incapacitated.


Canadians, as a whole, wait until it is too late to make end-of-life treatment decisions, according to Dr. Daren Heyland, professor of medicine at Queen’s University, as quoted by the Vancouver Sun.  "We’re harming people at the end of life when we should be celebrating their lives and providing them with dignified comfort measures."


Dr. Heyland and his colleagues interviewed elderly patients at the end of their lives and asked them what types of medical intervention they would want. They found that only 1/3 of the patients’ wishes corresponded with the "code status" on their charts.



Dr. Robert Fowler, an associate professor in medicine and critical care at the University of Toronto said, "the expectation today is that every illness can be cured, and that there is always hope. We’re going to have to come to terms with the notion that death is inevitable. Clearly, for all of us, there is ultimately going to be something that can’t be cured."


While people are well, they should make decisions about the types of invasive care they would want, because once they are in the intensive care unit, it may be too late to make critical decisions that may increase their pain and suffering, diminish their quality of life, and may only prolong their death.


Holly LeValliant


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