Tag: Health / Medical

28 Apr

Capacity Litigators Beware: DSM-IV to be Revised

Hull & Hull LLP Capacity, Estate Planning, Health / Medical, In the News Tags: , , , , , , 0 Comments

A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in this National Post article.  The DSM-IV is considered the most authoritative manual for defining and classifying mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient’s diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual’s observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual’s death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual’s capacity at a specific time during that individual’s life. 

Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.



30 Mar

Upcoming ‘Medical/Health Series’ of Blogs

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

The next Medical/Health series of blogs is scheduled to hit the platform on Monday May 3rd, 2010.  The series will run every Monday thereafter in the month of May (with the exception of Victoria Day), for a total of four blogs.

To keep things fresh, relevant and engaging, we are inviting suggestions for topics from you.  Is there a specific medical condition you’d like to see an overview for?  We have blogged on strokes, brain injury, alcohol abuse, pharmaceutical abuse, dementia, the Ontario Mental Health Act, and palliative care, just to name a few.  Perhaps you would like to see one of these capacity-related topics explored in more detail?

Please forward your suggestions to jhartman@hullandhull.com .

23 Feb

Admission to a Psychiatric Facility under the Ontario Mental Health Act

Hull & Hull LLP Capacity, Estate & Trust, Ethical Issues, Health / Medical Tags: , , , , , , , , , 0 Comments

Yesterday’s blog spoke to the issue of an Application for Psychiatric Assessment (Form 1) under the Mental Health Act R.S.O. 1990. To review, upon completion of the psychiatric assessment, the patient must either be released or admitted as an involuntary patient, a voluntary patient, or an informal patient.

Involuntary Patient: Before you become an involuntary patient, a doctor must assess you and place you on a Form 3 (Certificate of Involuntary Admission), which lasts for two weeks. The Mental Health Act speaks very specifically to the legal criteria that must be met in order for such a Certificate to be completed. An involuntary patient is not permitted to leave the hospital or psychiatric facility.

Voluntary Patient: There is no portion of the Mental Health Act that authorizes a psychiatric facility to detain a voluntary patient. In this regard, a voluntary patient can leave the facility at any time, as long as they do not pose a risk to themselves or others. If they were to be identified as posing a risk to themselves or others, then they must be made an involuntary patient (by means of a Form 3) in order to be detained.

Informal Patient: An informal patient is either a child under the age of 16 years, or someone who is incapable of making treatment decisions for themselves (as defined by the Health Care Consent Act) and who therefore has been admitted to the facility under the consent of another person (i.e. ‘substitute decision-maker’; usually a concerned family member). The informal patient cannot be held against their will in the hospital, however, an informal patient can be made ‘involuntary’ if a doctor deems that a Form 3 is necessary.

Jennifer Hartman, Guest Blogger


21 Feb

Application by Physician for Psychiatric Assessment under the Ontario Mental Health Act: The Form 1

Hull & Hull LLP Capacity, Estate & Trust, General Interest, Health / Medical Tags: , , , , , , , , 0 Comments

Under the Ontario Mental Health Act, a Form 1 refers to an Application by Physician for Psychiatric Assessment, or APA.  A Form 1 allows a doctor to hold a patient in a hospital or psychiatric facility for up to 72 hours in order to complete a psychiatric assessment.  In order to sign a Form 1, the doctor must have examined the patient within the 7 day period prior to the Form 1 being signed, after which the Form 1 expires.  In addition, the doctor must find that the patient meets one of two sets of criteria, depending on whether or not they are deemed capable of consenting to treatment in a psychiatric facility within the meaning of the Health Care Consent Act

The physician’s clinical opinion can, in consideration of what is appropriate in the circumstances, be based on their own observations, or in combination with facts communicated to the physician by others (e.g. family members, friends).

Once the Form 1 has been signed, anyone can bring (or force) the person into a psychiatric facility for assessment within the 7 day period before the Form 1 expires.  Upon completion of the psychiatric assessment, the patient must either be released, or admitted as an involuntary patient, a voluntary patient or an informal patient.  Tomorrow’s blog posting will explore these options in greater detail.

Jennifer Hartman, Guest Blogger

24 Jan

A Devastating Inheritance: Huntington’s Disease

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Huntington’s disease (HD) is a progressive, degenerative brain disorder that causes certain nerve cells in the brain to waste away. Huntington’s is inherited, and if one of your parents has Huntington’s disease, you would have a 50% chance of getting the gene for the disease. Everyone who carries the gene will develop the disease. Since the HD gene was isolated in 1993, one can be tested to see if they are a carrier, however because there is no cure for HD, some people choose not to be tested.

About 1 in 10,000 Canadians has HD.

There are two types of HD: i) adult-onset, the most common form, with symptom onset in the mid 30s and 40s; and ii) early onset, which accounts for about 16% of all HD cases, with symptoms developing in childhood or adolescence.

Huntington’s disease is associated with three types of symptoms:

· Movement symptoms, referred to as chorea, which consist of jerking, involuntary movements (‘tics’) of the limbs, trunk or face;
· Cognitive symptoms including a gradual impairment of concentration, memory, judgment, reasoning, decision-making and learning. This cognitive decline starts in a very subtle fashion, but eventually results in dementia; and
· Psychiatric symptoms may include depression, and psychotic behaviours such as delusions, hallucinations, paranoia and inappropriate outbursts.

HD usually runs its course in about 10 to 30 years, with a strong correlation between an earlier onset and a more rapid progression of the disease.

Jennifer Hartman, Guest Blogger

18 Jan

When the Bottle Hits Back: Korsakoff’s Syndrome

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Korsakoff’s syndrome is a brain disorder usually associated with chronic, excessive alcohol consumption. At the physiological level, Korsakoff’s is caused by a thiamine (vitamin B1) deficiency, which ultimately affects the brain and the central nervous system. In the context of alcoholism, this thiamine deficiency comes about as a result of poor diet as well as an impeded ability of the stomach lining to absorb vitamins.

Korsakoff’s predominantly affects men between the ages of 45 and 65. Women tend to develop the disease at an earlier age than men. According to the Alzheimer’s Society UK, it takes about 20 years for the disease to develop in men, whereas it takes about half that time to develop in women.

At first glance, one with Korsakoff’s syndrome may appear fairly normal. An in-depth assessment, however, would reveal symptoms including:

· Memory loss, particularly of events post-onset of the disease;
· Impaired ability to acquire new information;
· Lack of insight into the condition;
· Perseveration (repetitive comments or questions);
· Eye movement disorders; and
· Confabulation, or ‘falsification of memory’ in which the sufferer makes up events to cover up their inability to remember events.

Once Korsakoff’s develops, recovery is unlikely, however the progression of the disease can be halted with abstinence from alcohol. Treatment for Korsakoff’s is comprised of thiamine therapy, as well as the administration of medications usually given to people with Alzheimer’s disease.

Jennifer Hartman, Guest Blogger

11 Jan

Through the Looking Glass: Lewy Body Dementia

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After Alzheimer’s Disease, Lewy body Dementia (LBD) is one of the leading causes of dementia in the elderly, accounting for up to 20% of cases of dementia.

In Lewy body Dementia, abnormal protein structures called Lewy bodies develop in regions of the brain responsible for thinking and movement. These Lewy bodies were first described in 1912 by Friederich Lewy, a colleague of Alois Alzheimer.

LBD symptoms closely resemble those of both Alzheimer’s disease and Parkinson’s disease. The Alzheimer’s-like symptoms of LBD include fluctuating levels of attention and alertness, and a progressive loss of memory, language, reasoning and higher mental functions such as calculation. The Parkinson’s-like symptoms of LBD include rigidity, stiffness, stooped posture and a shuffling gait. Complex, well-formed, but oddly unthreatening visual hallucinations are one of the earliest and most common (>80% incidence) symptoms of LBD and usually consist of people, children or animals.

Here are some more quick facts about LBD:

· LBD is slightly more common in men than women. The average age of onset is 75 to 80 years of age.
· There is no single test to diagnose LBD. Like Alzheimer’s disease, a diagnosis of LBD is considered ‘possible’ or ‘probable’ after other possible diagnoses are considered and eliminated.
· Lewy body Dementia usually has a rapid onset and rapid progression. The average span of time between diagnosis and death is about 5 to 7 years.
· There are no know therapies to slow the progression of LBD, nor is there a known cure. The goal of treatment is to control the cognitive, psychiatric and motor symptoms of the patient.

For additional information, click here for the Alzheimer Society of Canada or here for the Alzheimer Society of Toronto. The Lewy Body Dementia Association is also an excellent resource.

Jennifer Hartman, Guest Blogger

07 Jan

Living Wills and Powers of Attorney for Personal Care

Hull & Hull LLP Capacity, Estate & Trust, Health / Medical, Power of Attorney, Wills Tags: , , , , , , 0 Comments

A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.

An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive

Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional.  Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.

A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney’s ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.

If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person’s behalf in descending order of authority as follows:

  1. Spouse or partner
  2. Child or parent
  3. Brother or sister
  4. Any other relative

Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.

For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.

Thanks for reading.

Sharon Davis

Sharon Davis – Click here for more information on Sharon Davis.

04 Jan


Hull & Hull LLP Capacity, Estate & Trust, General Interest, Health / Medical Tags: , , , , , , , , 0 Comments

Pseudodementia is a dementia syndrome which resembles dementia, but is actually the result of an underlying psychiatric disorder, most often depression. While the presentation of pseudodementia in the elderly varies widely, it closely mimics dementia in that common symptoms include:

· poor attention and concentration;
· a reduction in speed of cognitive response;
· compromised problem-solving and decision-making; and
· impaired immediate recall.

The two identifying hallmarks of pseudodementia are: i) there is no known neurological condition to otherwise explain the symptoms and ii) the cognitive deficits show considerable improvement, or even reverse, when the psychiatric illness is treated.

The concept of pseudodementia is a controversial one, in that it is considered a ‘soft diagnosis’, as there are no explicit diagnostic criteria; a physician’s checklist, if you will. There is no validated test, or group of tests to differentiate depression-related cognitive dysfunction from degenerative conditions such as Alzheimer’s Disease. Compounding the confusion surrounding pseudodementia is the fact that depression is frequent in patients with irreversible dementia. As a result, pseudodementia is often misdiagnosed as simply ‘true’ dementia.

In the context of estates litigation, a diagnosis of pseudodementia has the potential to significantly change the landscape of a capacity challenge. As an example, an article in the Bulletin of the American Academy of Psychiatry and the Law describes a nearly successful attempt to defraud a patient of their estate during her ‘presumed’ dementia, when in fact, she suffered from pseudodementia from which she later made a dramatic recovery.

Jennifer Hartman, Guest Blogger

28 Dec

Upcoming ‘Medical/Health Series’ of Blogs

Hull & Hull LLP Elder Law, Estate & Trust, General Interest, Health / Medical, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

For those of you with one eye on the next page of the calendar, Hull & Hull LLP will be posting our third series of medical/health blogs starting on Monday January 4th, 2010. The series will run every Monday thereafter in the month of January, for a total of four blogs. The following subjects will be featured:

  • Pseudodementia
  • Lewy Body Dementia
  • Korsakoff’s Syndrome
  • Huntington’s Disease

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


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