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.
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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.
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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.
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The results of a recent study published in the American Medical Association Oncology Journal suggest that more patients with cancer are obtaining Continuing Powers of Attorney for Property than in the past. Approximately 74% of Americans facing cancer have a Power of Attorney for Property in place. However, while not considered statistically significant, the use of Powers of Attorney for Personal Care and frequency of discussion with respect to end-of-life preferences have actually become less prevalent in recent years, with rates of only 40% (down from 49% in 2000) and 60% (down from 68%), respectively.
Older studies have suggested that physicians should re-evaluate a patient’s mental capacity after significant changes in medication, infection, metabolic disturbances, or diagnosis with a new medical problem, including cancer diagnosis and treatment, which may contribute to changes to mental capacity. While mental capacity is time and task-specific and will require analysis on a case-by-case basis, memory and concentration problems are frequently linked to certain chemotherapy regimens. Some reports suggest that oncology patients may experience the same mental impairment that is often seen at increased rates within the aging population. Further, the cognitive difficulty that is often referred to as “chemo fog” is believed to become more debilitating with the intensity of the chemotherapy. Other cancer treatments, including radiation and surgery, are believed to be less likely to influence a patient’s mental capacity, but medications, such as narcotic painkillers, that may be used to address treatment side effects can nevertheless impact lucidity and the understanding of medical procedures to which the patient’s consent is required. Further, when cancer originates or metastasizes within the brain, neurological functioning may be more likely to become compromised, whether temporarily or for the long term.
The presence of powers of attorney within the cancer community according to the study conducted by Johns Hopkins School of Medicine does not differ greatly from the estimate of 71% of Canadians that have Powers of Attorney in place. Generally, it is a good idea to ensure that individuals of all ages take the time to consider an incapacity plan and to have Power of Attorney documents prepared. However, cancer patients may be more likely than others to have to make important decisions between different treatment options. In situations where diminished capacity may become a more likely scenario due to illness (or related treatment) or age, arrangements should be made to ensure that, if one becomes incapable of making important decisions him or herself, someone who can be trusted is authorized and prepared to do so on their behalf.
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Dalton McGuinty has announced that, if re-elected, he intends to expand protected leave from work to employees to allow them to care for family members who cannot care for themselves due to serious injury or illness.
Currently, the Family Medical Leave plan allows employees to take up to eight weeks of unpaid leave to care for terminally ill family members. Under the expanded plan, employees would be entitled to the same eight week unpaid leave in order to care for ill or injured family members.
The plan is in addition to the eight weeks of protected leave afforded to employees with terminally ill family members.
Under the current plan, “family members” receives a broad definition: in addition to immediate family members, the definition includes foster children; siblings-in-law, uncles, aunts, nieces and nephews of the employee or the employee’s spouse; spouses of the employee’s grandchildren, uncles, aunts, nephews or nieces; and persons “who consider the employee to be like a family member”.
The employee must be “providing care” to the person. “Care” includes providing psychological or emotional support, or arranging care by a third party.
It is not clear whether the plan would allow employees protected leave to care for elderly or incapable family members. The press releases define the criteria for eligibility as “a serious injury or illness, including cancer or a stroke”.
At present, there is no corresponding Employment Insurance benefit during such leave (there is for leave for employees with terminally ill family members). The Ontario Government is calling on the federal government to extent Employment Insurance benefits to those taking advantage of the proposed expanded program.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.