Thursday, October 31, 2013

140 Law - Legal Headlines for Thursday, October 31, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, October 31, 2013, Happy Halloween!:
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Wednesday, October 30, 2013

140 Law - Legal Headlines for Wednesday, October 30, 2013

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Tuesday, October 29, 2013

140 Law - Legal Headlines for Tuesday, October 29, 2013

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Monday, October 28, 2013

140 Law - Legal Headlines for Monday, October 28, 2013

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Friday, October 25, 2013

140 Law - Legal Headlines for Friday, October 25, 2013

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Ontario Powers of Attorney for Care: The Courts' Role in End-of-Life Care Decisions

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally.  Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.
Our focus thus far in this week's series has been on the practical considerations in making an Ontario Power of Attorney for Personal Care. In this final instalment, we will now shift gears to look at the issues that can arise with end-of-life care decisions, and the role the Court assumes in such matters.

Where there is no appointed Attorney for Care, whose opinion counts?

A lack of clarity as to your end-of-life care wishes can seriously compromise your autonomy in making personal choices, and potentially create serious rifts among loved ones left to fill in the blanks on what is at best, well-intentioned guesses. The case of Terri Schiavo serves as a cautionary tale of the devastating consequences that can result where an Attorney for Care has not been appointed.

In February of 1990, Terri Schiavo suffered a full cardiac arrest that temporarily deprived her brain of oxygen, leaving her in a persistent vegetative state. As Terri had not appointed an Attorney for Care, her husband became her legal guardian pursuant to Florida laws, and took on the role of decision-maker for her medical care. He contended that Terri had expressed to him that she would not want to be kept alive through artificial means and accordingly would not want to be dependent on a feeding tube. Terri’s parents, however vehemently denied this to be their daughter’s wishes, arguing that as a devout Catholic, she would have instead held strong beliefs in the sanctity of life. A very bitter and public feud ensued between the parties when in 1998, Terri’s husband petitioned the Court to have her feeding tube removed.

The end-of-life care decisions of Terri Schiavo soon became a matter of public discourse with everyone from President George Bush to the Vatican weighing in on what was “appropriate”. What should have been a personal decision reflecting the values of Terri Schiavo, instead became a hot topic that divided the nation, “pitt[ing] culture-of life conservatives against right-to-die civil libertarians”[1]. In a highly unusual step, the “Schiavo Bill” (which later came to be known as the “Palm Sunday Compromise”) was passed to allow for Terri’s case to be reviewed by the Federal Court. However, despite this extraordinary measure and the countless appeals to both the court of law and the court of public opinion, Terri Schiavo’s feeding tube was removed on March 18, 2005. She sadly died shortly thereafter.

In reflecting on the ordeal, Michael Schiavo’s attorney infamously stated, ““no family…having to go through the death process for a loved one should have the added worry that a panel of judges is going to order an ambulance to come or that politicians are going to interfere with the death process that your loved one has chosen and has almost completed.” In what can only be described as a tragedy all around, the case of Terri Schiavo stands testament to the need for clarity in advance care planning.

Reconciling a Patient’s right to self-determination with a Physician’s ethical duty:

Pursuant to section 10 of the Health Care Consent Act, a health practitioner is required to obtain consent prior to administering any treatment on a patient. Such authorization may come directly from the patient, or, where the patient is deemed to be incapable it may be obtained from the appointed substitute decision-maker. As discussed earlier, an appointed Attorney for Care is to reach personal care decisions on your behalf on the basis of your directives, or where no such guidance is available, or simply impossible to follow, on the basis of what is held to be in your best interests.   

While the legislative framework surrounding consent to medical treatment is clearly defined, challenges arise when it is considered in context with a health care professional’s duty towards his or her patient. A modern translation of the Hippocratic oath that guides physicians includes a promise “to keep the good of the patient as the highest priority.”  Accordingly, health care providers in Ontario are able to seek recourse by way of making an application to the Consent and Capacity Board, where they have reason to believe that a substitute decision-maker is not acting in accordance with a patient’s best interests. Serious issues arise however where a medical opinion as to what is “good” for the patient cannot be reconciled with a substitute decision-maker’s assessment of “best interests”.

The controversial case of Samuel Golubchuk is one that brings this issue to the forefront.  Mr. Golubchuk was an 84-year old patient admitted to Winnipeg’s Salvation Army Grace Hospital with pneumonia and pulmonary hypertension. While his pneumonia was eventually cured, he remained in a severely weakened state such that he required life support in the form of a ventilator and feeding tube. As his condition deteriorated, physicians at the hospital took the position that further medical intervention would be futile and treatment ought to be withdrawn. His family however, maintained that doing so would be in violation of Mr. Golubchuk’s Orthodox Jewish beliefs. An interim emergency court injunction against removing life support pending trial was successfully brought by his children. Shortly thereafter, the Manitoba College of Physicians and Surgeons released a statement conferring physicians with the final decision to withdraw life support. 
In the brink of it all, Mr. Golubchuk’s attending physician resigned from the hospital on the grounds of medical ethics. In explaining his reasons, Dr. Anand Kumar stated,

“If we honestly attempt to follow the court mandate to focus on keeping Mr. Golubchuk from his natural death, we will likely have to continue to surgically hack away at his infected flesh at the bedside in order to keep the infection at bay. This is grotesque. To inflict this kind of assault on him without a reasonable hope of benefit is an abomination. I can’t do it.”

Unfortunately, as is often the case with end-of-life care litigation, the Court did not decide the underlying issue as Mr. Golubchuk passed away prior to the commencement of trial.  

Guidance from the Supreme Court of Canada: The Rasouli decision

In reflecting on how to conclude this article, I had initially planned on setting out the many uncertainties that remain in the law of medical consent and decision-making. Ironically, however, late last week, the Supreme Court of Canada released its decision in the case of Cuthbertson v. Rasouli, wherein it provided great clarity and direction on the question of who holds the authority to make end-of-life care treatment choices in Ontario.

On October 18, 2013, the Supreme Court of Canada dismissed an appeal brought by doctors of Hassan Rasouli to unilaterally end his life-support without the consent of his substitute decision-maker. In doing so, the Court addressed two very interesting issues surrounding medical consent.

Substantively, the physicians of Mr. Rasouli contended that the withdrawal of life support that does not provide any medical benefit to the patient does not require consent as it does not constitute a “treatment” as defined in the HCCA

In disagreeing with this position, the Court clarified as follows:

·          “Treatment” and “medical benefit” are two distinct concepts. Treatment is broadly defined as “anything that is done” for one of the enumerated purposes (therapeutic, preventative, palliative, diagnostic and cosmetic) or “other health-related purpose”. Medical benefit on the other hand is a reflection of the standard of care that a physician is to provide a patient in providing treatment.
·          “ ‘[T]reatment’ in the HCCA is broadly defined and therefore should be understood as extending to withdrawal of life support…[which] aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body and is closely associated with the provision of palliative care”
·          While the continuation of life support for a patient may place a physician in an untenable ethical position, such tensions are inherent to medical practice.

Procedurally, the Court was called upon to assess whether the Court or the Consent and Capacity Board (“Board”) was the appropriate forum for bringing challenges to consent decisions. In upholding the statutory framework of the HCCA, the Court held that the Board was the proper place to make determinations relating to consent to treatment for capable and incapable patients:

“[The] legal framework [of the HCCA], which aims at protecting patients’ autonomy and medical interests, has been used to resolve end-of-life disputes in Ontario for 17 years. Access to this established regime should not be closed off, casting these matters back into the courts.

“The HCCA does not neglect the role of health practitioners in the treatment of incapable patients.  First, where there is a prior wish by the patient, the attending physician may ask the Board to find that the wish is not applicable to the patient’s current circumstances (s. 35), or to permit a departure from the wish because the likely result of treatment has significantly improved since the wish was made: s. 36.  Second, if the physician feels that a substitute decision-maker has not complied with the HCCA’s rules for giving or refusing consent to treatment, he may challenge the consent decision by application to the Board: s. 37.  Such a challenge will generally focus on medical considerations within the s. 21(2) best interests analysis.  The physician’s views of what will medically benefit the patient are obviously critical to the Board’s determination of the patient’s best interests.  However, the HCCA gives the Board final responsibility to decide disputes over consent to treatment for incapable patients, based on an objective assessment of whether the substitute decision-maker complied with the requirements of the HCCA.” 
[Para 27]

This decision reflects the great respect the Court gives to the principles of autonomy and self-determination. In essence, it goes to empower substitute decision-makers, including Attorneys for Care, to exercise the authority conferred upon them. 

Simran Bakshi, Student-at-Law, Toronto




[1] Commented by Carl Cameron, chief political correspondent, Fox News

Thursday, October 24, 2013

140 Law - Legal Headlines for Thursday, October 24, 2013

Here are the leading legal headlines from Wise Law on Twitter for Thursday, October 24, 2013:
- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Considerations in using an Ontario Power of Attorney for Personal Care:

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally.  Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.
As well-thought out and meticulously drafted as your Power of Attorney for Personal Care may be, it is ultimately only useful if it serves its purpose in your time of need. In order to be an effective tool that provides you and your loved ones with peace of mind, a Power of Attorney for Personal Care must be accessible to your appointed Attorney of Care, and comprehensible with respect to nature of rights it confers.

To start with the obvious, it is important to ensure that you and your appointed Attorney for Care are on the same page with respect to your expectations as described in your Power of Attorney for Personal Care. Accordingly, it is beneficial to do a walk-through of the completed document with your Attorney for Care to clearly elaborate, if need be, on exactly what your end-of-life care wishes are.

As is the case with executing a Power of Attorney for Personal Care, there is no formal procedure in place for enforcing this legal instrument. A Power of Attorney for Personal Care is not required to be registered with any government agency, and accordingly no formal records of the document itself are maintained by the Attorney Generals office or the Office of the Public Guardian Trustee.


Although health practitioners are permitted to rely upon the declaration of an individual as a substitute decision-maker who may give consent, in most cases an Attorney for Care will be required to produce the Power of Attorney for Personal Care to confirm his or her authority. Certain institutions may as a policy request for an original or notarized copy of the document. It is thus highly advisable to execute two notarized original Powers of Attorney for Personal Care, such that you may retain one copy for safekeeping, while your Attorney for Care may keep the other.

As your substitute decision-maker, an Attorney for Care should be privy to all of the information you would be entitled to if you were capable of reaching a decision on your own. Accordingly, the healthcare provider administering the treatment must discuss all aspects of the proposed treatment such that the Attorney for Care is able to provide an informed consent.

An Attorney for Care is required by law to maintain full records of any decisions made. This includes: [1]

  • A list of all decisions regarding health care, safety, and shelter made on behalf of the incapable person, including the nature of each decision and the reason for it and the date;
  • A copy of medical reports or other documents, if any, relating to each decision’
  • The names of any persons consulted, including the incapable person, in respect of each decision and the date;
  • A description of the incapable person’s wishes, it any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
  • A description of the incapable person’s current wishes, if ascertainable, and if they are relevant to the decision;
  • For each decision taken, the Attorney for Care’s opinion on what is in the incapable person’s best interests (as per the factors listed in s.66(4)(c) of the Substitute Decisions Act)
  • A copy of any court orders relating to the Attorney for Care’s authority of the incapable person’s care
Given the intensely personal nature of decisions an Attorney for Care makes on your behalf, he or she is expected to maintain high standards of privacy. The only exception to this however is where you have consented to the disclosure of your information by making such intentions clear on your Power of Attorney for Personal Care or where the disclosure of such information becomes necessary for the Attorney for Care to carry out his or her duties or to abide by the law.



[1]  Accounts and Records of Attorneys and Guardians, O Reg 100/96, s.3.


- Simran Bakshi, Student-at-Law, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, October 23, 2013

140 Law - Legal Headlines for Wednesday, October 23, 2013

- Elysia Cherry, Legal Assistant 
Visit our Toronto Law Office website: www.wiselaw.net

The Nuts and Bolts of Making an Ontario Power of Attorney for Personal Care:

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally.  Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.
Our focus thus far has been on the preliminary considerations in executing a Power of Attorney for Personal Care. With a clear understanding of what this legal instrument is, and the nature of decision-making it requires, our focus may now shift to the nuts and bolts of actually making a Power of Attorney for Personal Care.

From a purely procedural standpoint, a Power of Attorney for Personal Care is a rather simple instrument to execute as it does not require any special form. A document will be legally binding for this purpose so long as it names at least one person as the Attorney for Care; it is made at a time when you have legal capacity; and it is signed, dated, and witnessed by two persons. It is important to note there are restrictions placed on who may act as a witness for the purpose of making a Power of Attorney for Personal Care.

The general format for a Power of Attorney for Personal Care is as follows:
(i)                   An Attorney for Care is appointed;
(ii)                 Authority is conferred upon him or her to make personal care decisions; and
(iii)                Directions are provided to guide what decisions are ultimately made (“Living Will”)

(i)                  Appointing an Attorney for Care:

There are very few limitations placed on who you may name as your Attorney for Care. So long as a person is at least 16 years of age; and is mentally capable of acting as a decision-maker, he or she may be appointed as a Power of Attorney for Personal Care. This includes persons who reside outside of Ontario. It is important to note however that an individual cannot be paid to provide his or her services as an Attorney for Care, unless he or she is a relative.

(ii)                Parameters of Decision-Making Authority:

Capacity:

A Power of Attorney for Personal Care will only come into effect if and when you become incapable of making your own medical treatment decisions. The assessment of your capacity or lack thereof, is thus significant as it will determine whether your Attorney for Care will be conferred with the authority to act as your substitute decision-maker.

There is a presumption under the Health Care Consent Act that every person is capable of making decisions with respect to his or her own healthcare and treatment.[1] Accordingly, you may only be deemed to be incapacitated if you are unable to understand information that is relevant to making a decision about your treatment; or if you are unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[2]

Pursuant to the Health Care Consent Act, if a decision relates to a medical treatment or admission to a long-term care facility, a healthcare professional must assess your capacity to make a choice.[3] In all other circumstances, unless you have provided for an exception stating otherwise (i.e. a requirement for your Attorney for Care to get independent confirmation of an assessment of incapacity), your Attorney for Care will determine whether you have the capacity to make a particular decision.[4]

It is important to note that capacity may range based on the nature of decision that is to be made. For example, while you may lack the capacity to make a serious health care decision, you may continue to be capable of making your own choices on routine day-to-day matters.

Scope of Decision-Making Powers:

A Power of Attorney for Personal Care may be framed so as to restrict the scope of your Attorney for Care’s powers. However, if this has not been done, your Attorney for Care has the right to make practically any decision of a personal nature. This would include choices regarding your medical treatment, housing, food, hygiene, clothing and safety.

General Principles on Decision-Making:

Your Attorney for Care is legally obliged to make personal care decisions on the basis of what you would want if you were capable of reaching a decision on your own. As a starting point, your Attorney for Care should refer to any prior capable wishes that were either expressed in your Power of Attorney for Personal Care or communicated orally. If however, there are no known prior capable wishes, or your instructions are deemed to be impossible to follow, your Attorney for Care must resort to what is in your best interests.  This may be determined by considering the diagnosis and prognosis of your condition; conducting a cost-benefit analysis on any proposed treatment; reflecting on your values and beliefs; and factoring in any wishes you may have expressed after becoming incapable. 


(iii)                Expressing your personal care wishes:

End-of-life care decisions address a dark and heavy subject matter. While an inherent part of a Power of Attorney for Personal Care, this instrument does not have to take on a serious and legal tone. Rather it can, and should be moulded to reflect your personality. The following are some examples of clauses that have been included in a Power of Attorney for Personal Care.

The Straight-Forward approach:
If at any time I should have a medical condition that would indicate that I am terminally ill and the condition cannot be reversed by treatment with any expectation that I could reasonably enjoy a normal life both physically and mentally thereafter, I DIRECT that no effort be made to prolong my life aggressively, including the use of drugs, antibiotics or other means, or attempt to resuscitate me if my heart or lungs fail. I FURTHER DIRECT that in such event any doctors or medical personnel who are treating me or any medical facility or hospital or nursing home in which I am being treated shall confine their treatment to alleviating or relieving as much as possible any pain or suffering I may have.(Source: http://www.ramsaylaw.ca/index.php/areas-of-law/power-of-attorney)

The Laundry List approach:
The following are further instructions pertaining to health care that I wish to have [or alternatively, “that I wish not to have”] should I be near death or in a vegetative state and unable to communicate my wishes to medical staff:
I “Do” or “Do not” want to be revived or resuscitatedI “Do” or “Do not” want electrocardioversionI “Do” or “Do not” want mechanical respirationI “Do” or “Do not” want antibioticsI “Do” or “Do not” want kidney dialysisI “Do” or “Do not” want chemotherapyI “Do” or “Do not” want tube feeding or any other artificial or invasive form of nutrition
I “Do” or “Do not” want any artificial or invasive form of hydration
I “Do” or “Do not” want blood or blood productsI “Do” or “Do not” want any form of life sustaining surgery or invasive diagnostic testsI “Do” or “Do not” want to allow physicians to try new medical discoveries on me

The Poet:

Death is as much a reality as birth, growth, maturity and old age. It is the one certainty of life. I recognize this. Therefore, while I am incapable, should a situation arise where my attending physician determines that I will not recover from a disability and that my death is imminent, I DIRECT MY ATTORNEY to permit me the dignity of a peaceful passing. I do not wish to be kept alive by artificial or heroic measures that would only serve to prolong my dying process, but I rather wish to die with dignity and in comfort. In that situation, I wish for treatments that will allow me to die peacefully even though they may abbreviate the dying process, resulting in a hastening of my death.

The Comedian:
Under no circumstances do I wish my fate to be put in the hands of pinhead partisan politicians who couldn’t pass ninth-grade biology if their lives depended on it or lawyers/doctors/hospitals interested in simply racking up big bills.If more than 3 days pass, and I fail to ask for at least two of the following:____ Vodka and Tonic ____a Margarita ____a Beer ____a Bloody Mary ____Single Malt Whiskey ____a glass of wine ____Sex ____T-bone Steak ____Lobster or crab legs ____Barbequed Ribs and mashed potatoes with gravy ____pizza  ____the remote control ____a bowl of ice cream ____the sports page ____Cheesecake  or ____Chocolate, it should be obvious that I won’t ever get any better and that it’s time for me to go.When such a determination is reached, I hereby instruct my appointed person and attending physicians to pull the plug, reel in the tubes, turn off the lights, and call it a day. At this point, it is time to call the New Orleans Blues Funeral Band to come do their thing at my funeral, and ask all of my friends to raise their glasses to toast the good times we have had.(Source: http://whaleyestatelitigation.com/blog/2012/04/what-wishes-should-a-power-of-attorney-for-personal-care-express/)


While a Power of Attorney for Personal Care is a relatively simple document, it is best practice to consult with a lawyer who is experienced in estate planning to have it drafted or legally reviewed. A lawyer may ensure that your Power of Attorney for Personal Care is legally valid in Ontario and is drafted in an unequivocally clear manner so as to be enforceable without issue.

Resources:

Note: You may have your Power of Attorney for Care completed by a qualified Ontario Lawyer. A template form for making a Power of Attorney for Personal Care is available on the Ontario Ministry of Attorney General’s website at: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf.   




[1] Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s.4(2) [“Health Care Decisions Act”]

[2] Health Care Consent Act, s.4(1)

[3] Health Care Consent Act, s.10(1)(b)

[4] Substitute Decisions Act, SO 1992, c 30, ss.49(1)(b) [“Substitute Decisions Act”]


- Simran Bakshi, Student-at-Law, Toronto


Visit our Toronto Law Office website: www.wiselaw.net