On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).
One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:
Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.
Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.
However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:
- Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
- The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
- there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
- a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
- a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
- Some patients also die before their applications are heard by the Consent and Capacity Board.
- It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
- Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.
After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:
- The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
- A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
- Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.
At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:
Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.
Steps that you can take today include:
- appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
- discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
- completing an advance directive or “living will,” which sets out your wishes in terms of future care.
Thanks for reading, and have a great day!
For further reading on advance care planning, see the following blog posts:
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.
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.
Other blog posts that may be of interest:
Do you smell that? Good!
The sense of smell, or lack of it, can be an indicator of the future onset of dementia.
In a study of 3,000 adults, researchers at the University of Chicago Medical Center found that those who could not identify four out of five common odours were twice as likely to develop dementia within five years.
The study, “Olfactory Dysfunction Predicts Subsequent Dementia in Older US Adults”, was published in September 2017 in the Journal of the American Geriatrics Society. The scents used, in increasing difficulty of recognition, were peppermint, fish, orange, rose and leather. The study found that 78.1% of those studied had a normal sense of smell, and could identify four out of the five scents. 18.7% could identify only three of the scents, and 3.2% could only identify one or two of the scents.
After five years, almost all of those who could only identify one or less scents were diagnosed with dementia.
According to the study, the sense of smell may signal a key mechanism that also underlies human cognition. The olfactory system has stem cells which regenerate, and “a decrease in the brain’s ability to smell may signal a decrease in the brain’s ability to rebuild key components that are declining with age, leading to the pathological changes of many different dementias.”
Because the smell test is so easy to administer, it is believed that the test could lead to an earlier determination of the possible onset of dementia.
We’re lucky in Canada – our healthcare system pays for doctor bills and hospital visits, and many employer-sponsored benefit plans provide for supplementary health insurance. Even better, universal care is actually expanding in places, such as the recent introduction of free pharmacare for those age 24 and under in Ontario.
But don’t get lulled – there are costs to healthcare. With our comprehensive public coverage, it can be easy to think that your costs will be covered if you were in an accident or experienced a serious illness. But many of us simply aren’t aware of what won’t be covered. For example, out-of-pocket costs could include loss of income (especially if you are self-employed), expensive uninsured prescription drugs and medical supplies, childcare during recovery, or even home renovations to accommodate the illness. And psychological therapy fees represent another potential cost, as mental illness is one of the leading causes of disability in Canada.
So, what can you do to ensure that you are financially prepared for a sudden, serious bad health event? Here are three options to consider:
- An emergency fund/line of credit: You may need access to cash quickly if a health emergency arises and having a “rainy day fund” for unplanned or unexpected expenses is ideal for that purpose. A line of credit also serves this purpose, although it involves taking on debt and all the costs that that entails.
- Disability insurance coverage to replace income: Disability insurance replaces a portion of your income if you are unable to work due to an illness or disability. Disability policies vary widely, so even if you have coverage at work, it’s worth checking whether additional personal coverage could be beneficial.
- Critical illness insurance to cover other costs: This insurance provides a tax-free lump sum benefit upon the diagnosis of a serious illness, such as cancer, heart attack, stroke, blindness, paralysis, kidney failure and multiple sclerosis. Unlike disability insurance, the payment is not linked to your inability to return to work, and you have complete freedom to use the money any way that you wish, including paying for treatment outside of Canada that may not be covered by provincial healthcare.
Of course, rule number one is to stay healthy. But in the event you don’t, be prepared financially. A little planning can go a long way.
Thank you for reading … Have a great day,
I have blogged about assisted suicide in the past with reference to the Canadian television show Mary Kills People. The availability of assisted suicide continues to be a subject of public interest as each province deals with the implementation of the outcome of Supreme Court of Canada decision in Carter v. Canada (Attorney General).
As reported by The Globe and Mail, one particular doctor has removed himself from a roster of doctors who will administer assisted deaths because of changes to the physician fee schedule in British Columbia. Notwithstanding his support for assisted death, Dr. Jesse Pewarchuk of Vancouver Island wrote a letter to his colleagues to explain that the new fee schedule made “medical assistance in dying” economically untenable for his practice.
According to Kelly Grant of the Globe and Mail,
“Under the new fee schedule, B.C. physicians will now be paid $40 for every 15 minutes, up to a maximum of 90 minutes, to conduct the first of two eligibility assessments required by law. Each of the assessments has to be provided by a different clinician. That works out to $240, a significant increase from the $100.25 interim assessment fee that has been in place in B.C. since shortly after assisted death became legal.
For second assessments, the time is capped at 75 minutes.
In the case of providing an assisted death, the province has set a flat fee of $200, plus a home-visit fee of $113.15.”
Within the same article, it was reported that Ontario does not have specific billing codes for this type of medical service at this present time.
Thanks for reading.