Archive for March, 2012

March 27, 2012

Consent to Treatment – Recent Caselaw

In this blog we recently looked at the issues that will face the Supreme Court of Canada in the Rasouli v. Sunnybrook Health Sciences Centre case.  The decision of the Ontario Court of Appeal in that case highlighted the role of the Consent and Capacity Board (the “Board”) established by the Ontario Health Care Consent Act (the “Act”).  There, the issue was the role of the Board where a patient is clearly incapacitated (in a permanent vegetative state and on life support) and there is a conflict between the instructions of a substitute decision-maker and the opinion of the patient’s medical practitioners.  However, the Board also plays an important role in dealing with parties who are capable of expressing their wishes but, due to mental illness (age-related or otherwise), may lack the requisite capacity to make decisions concerning their health treatment.

In a recent Ontario Superior Court of Justice case, the test in such situations was reviewed in the context of an appeal by an elderly patient from a decision of the Board finding her incapable with respect to treatment with antipsychotic and thyroid medication.

The Court highlighted the starting point under s. 4(2) of the Act; that a person is presumed at law to be capable of deciding whether to accept or reject medical treatment.  At a capacity hearing, the onus is on the medical practitioner to prove (on the civil burden of a balance or probabilities) that a person lacks that capability.  The case notes that, historically, the onus was sometimes forgotten in cases of mental illness and that the Board must be conscious of the pitfall of equating the presence of a mental disorder with incapacity.

In considering the issue of capacity, the Court reviewed the elements set out in s. 4(1) of the Act:

“A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

If shown that a patient does not meet this standard of capacity, he or she can be declared incapable within the limited parameters of the Act.

Here, the Court found that there was a preponderance of evidence of incapacity.  Longstanding problems with schizophrenia, lack of cooperation with treatment and fixed delusional and paranoid beliefs rendered the patient incapable understanding information relevant to her medical treatment.  The Court therefore upheld the declaration of incapacity by the Board.

Duroche v. Somal

March 18, 2012

Article – When quality of death can enhance quality of life

March 8, 2012

One Way to Deal with Elder Abuse by a Guardian

Unfortunately, safeguards available to vulnerable people from the dishonest acts of those closest to them remain woefully inadequate. Too often, damage done is only dealt with long after the abuse has started.  A decision released this week by the Ontario Superior Court of Justice illustrates both the shortfalls in the guardianship process and the Court’s attempt to punish dishonest conduct.

In Aragona v. Aragona, a son of a woman suffering from Alzheimer’s disease was appointed in 1999 as guardian over her property.  He passed his accounts in 2001.  At that time, the assets under guardianship consisted of approximately $150,000 invested with a investment brokerage.  In 2004, the guardian was ordered to pass his accounts again and to do so every three years thereafter.  He did not.  The mother passed away in 2010 and the son was again ordered to pass his accounts.  Following an unsuccessful appeal of that order, the passing of accounts finally took place in January 2012.  On the passing, the guardian was unable to explain large withdrawals from an estate requiring relatively modest expenditure.  The Court found that the cost of the mother’s care should have been covered by revenue from her assets, along with what government assistance she received.

In March 2010, the mother’s assets were worth a mere $46,000.  The guardian had withdrawn and deposited to his own bank account approximately $122,000 since 2001 and, while he protested that the expenditures were for expenses of his mother, he was unable to provide documentation or a reasonable explanation for the withdrawals.  The guardian was also unable to explain most of the expenditures for certain legal fees paid for with his mother’s funds. 

The Court clearly found the guardian’s behaviour to be abusive, stating:

“I am constrained to say that the conduct of Beniamino Aragona has been shocking.  He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s disease and was unable to look after her own affairs.  Beniamino Aragona treated the money in the estate as if it was his own.”

After taking into account the improper withdrawals, adding the legal fees improperly charged to the mother, and deducting amounts properly charged to the estate, the Court ordered the son to pay to the estate a total of over $132,000.

The Court likewise denied the son’s request for compensation in its entirety.  In addition, the Court rejected the guardian’s claim for costs of the application to pass accounts and in fact ordered that the guardian pay the costs of the passing personally.

Of course while this case and others like it* are helpful in dealing with dishonest guardians, the process unfortunately did little for Mrs. Aragona when she needed it most.

*See Zimmerman v. McMichael Estate

March 6, 2012

End of Life Decisions and the Law – A Prelude to the Supreme Court of Canada’s Hearing of the Rasouli Appeal

As is clear from the Ontario Court of Appeal decision in Rasouli v. Sunnybrook Health Sciences Centre, the decision whether or not to continue life support is always emotional and never best determined by the courts.  What the Supreme Court will be required to determine when it hears the appeal in this case, is that rare situation where the wishes of the family and the opinion of medical practitioners are in conflict.

In Rasouli, the issue is whether doctors can withdraw life support from a patient in a vegetative state without the consent of the substitute decision-maker, where the doctors are of the opinion that there is no realistic hope of medical recovery and the patient is not receiving any medical benefit from life support.  Consent to do so has been refused by the patient’s spouse.  Under s. 21 of the Ontario Health Care Consent Act (the “Act”), a person designated as a substitute decision-maker may exercise a right to consent or refuse treatment on behalf of a patient, provided they have followed the steps set out in that section.  Where the medical practitioner proposing the treatment consented to or refused disagrees with the decision of the substitute decision-maker, he or she may apply to the Consent and Capacity Board established by the Act (the “Board”) for a determination whether the substitute decision-maker has complied with s. 21.

Here, the medical practitioners contend that the withdrawal of life support does not constitute “treatment” under the Act where life support provides no medical benefit to the patient.  Therefore, it is argued that withdrawal in this instance is not “treatment” and consent of the substitute decision-maker is not required.  In this instance, the doctors propose to withdraw life support and to institute palliative care until the patient passes away.

The Court of Appeal disagreed with the medical practitioners’ position and dismissed the appeal.  However, it did so on fairly narrow grounds.  While sympathetic to the concern of the medical practitioners that there may be no benefit to continued life support, the Court held that the administration of palliative care is treatment under the Act and is inextricably intertwined with and results from the withdrawal of life support.  Therefore, the Court could not separate the two and found that withdrawal of life support in this situation is also “treatment”.  Consent of the substitute decision-maker to withdrawal is therefore required.  If the medical practitioners disagree with the decision of the substitute decision-maker, they must take the matter to the Board.

Right or wrong, the Court of Appeal appears to have been more comfortable leaving the matter in the hands of the expedited process before the Consent and Capacity Board, adding that since its establishment 15 years ago, the Board seems to have worked well.  Some medical practitioners may take a different view given the choice to continue to appeal this matter.  The Court added that the ability of medical practitioners to go to the Board acts as a form of “safety valve” for doctors.  In what appears to be an expression of surprise at the position of the medical practitioners in this case, the Court stated further that it believes doctors would see the Board procedure as a good thing, rather than “an impediment to their professional independence and autonomy”.

The reality of the situation is that, whatever the Supreme Court decides, medical scenarios similar to that of Mr. Rasouli will almost always be decided properly between family, the patient’s doctors and, if necessary, through counselling.  Beyond the obvious importance of the case to the Rasouli family, it will be interesting to gauge the impact of the decision in the context of public policy.  A web search referencing the decision renders disparate opinions, ranging from those of anti-euthanasia groups to advocates of a right to a dignified death.  One thing is certain, while there is law governing these decisions, they are not well suited to the courtroom.

See also

See also