Archive for ‘Capacity’

November 21, 2016

An interesting article on ongoing Alzheimer’s research


April 14, 2016

Medically Assisted Death Bill Introduced in Parliament

On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

  • be 18 years of age and capable of making decisions with respect to their health;
  • have a grievous and irremediable medical condition;
  • have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
  • give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”.  The government has defined it in the bill as requiring all of the following:

  • a serious and incurable illness, disease or disability;
  • an advanced state of irreversible decline in capability;
  • enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and
  • natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

  • be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;
  • ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;
  • ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
  • ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;
  • immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying.  A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out.  The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards.  Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent.  Minors are clearly not eligible and will be the subject of further study.  As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering.  However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent.  Connected to this issue is the matter of advance consent.  What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability?  If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment.  This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill.  Given what is really a short period of time to deal with such a large social issue, this was not unexpected.  Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.


February 11, 2016

Lifestyle, education and dementia

Some interesting news about lifestyle and education and their potential relationship to certain types of dementia.

The originating article is in the New England Journal of Medicine but you will need to be a subscriber to read it.

February 4, 2016

Physician Assisted Death – Ontario Superior Court Issues Practice Advisory

As discussed in an earlier post, in February 2015 the Supreme Court of Canada declared that portions of the Criminal Code that make it an offence to aid or abet a person to commit suicide are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.  The declaration of invalidity was suspended for 12 months, until February 6, 2016, to allow time for the government to determine what, if any, legislative approach was appropriate to deal with the Court’s decision – in other words, what guidelines should be put in place to allow for physician-assisted death.

In January of this year, the Federal government requested a six-month extension of the suspension.  With the exception of Quebec, the Court granted a four-month extension but directed that during that time period, applications may be brought to provincial superior courts for exemptions to permit individual cases of physician-assisted death to proceed so as not to “unfairly prolong the suffering of those who meet the clear criteria we set out in Carter“.

On February 2, the Ontario Superior Court of Justice issued a practice advisory dealing with the procedure and evidentiary requirements for exemption applications in Ontario.  Of note is the direction concerning evidence to be included, stating that the application “should” (read – “had better”) include affidavit evidence from (1) the applicant; (2) the attending physician; (3) a consulting psychiatrist; and (4) the physician proposed to assist death.  The evidence to be provided must lead the Court to conclude that the applicant:

  • has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering
  • as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant
  • has the mental capacity to make a clear, free, and informed decision about a physician assisted death
  • will be physically incapable of ending his or her life without a physician assisted death
  • consents without coercion, undue influence, or ambivalence to a physician assisted death
  • makes the request for authorization for a physician assisted death freely and voluntarily

Given the relatively short extension (by which time guidelines should be in place) and the evidence necessary to obtain the exemption, I would not expect there to be more than a handful of exemption applications.



October 2, 2014

Why Lawyers Draft Wills

A recent Ontario case is a good reminder of why preparing a will is best left to a competent lawyer.

In Budai v. Milton, the testator clearly wanted a no-nonsense approach to how his failing health and his estate were dealt with.  He had a will prepared by a retired financial planner, who also happened to be named as executrix of the estate.  The proposed executor was in all likelihood an excellent financial planner, but was found lacking in legal skills.

The will named one beneficiary, the applicant (defined in the will as a paid caregiver) and contained the following clauses:

6.1      Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.3      Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate.  She may give away the funds in any way she sees fit.  She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last.  There are no restrictions to what she may do with the balance of the Estate.

With respect to clause 6.1, the applicant took the position that it should be struck out as contrary to public policy on the basis of the in terrorem doctrine.  That doctrine can be invoked to strike a portion of a will where three criteria are satisfied, namely;

(a)   the legacy must be of personal property or blended personal and real property;

(b)   the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; and

(c)   the “threat” must be “idle.”

The court found that these criteria had been satisfied. A bald prohibition to challenging the will “in any way” offended the doctrine.  Determining whether a threat is “idle” requires an examination of whether the threat is “imposed solely to prevent the donee from undertaking that which the condition forbids”.  Bare forfeiture of a gift is therefore considered an idle threat.

While the court found paragraph 6.3 to be valid, despite several claims of uncertainty, it did note that the ability of the executor to disburse funds in any way she sees fit to be suspicious. The proposed executor was also the drafter of the will and had the ability under that clause to disburse the estate to herself if the applicant was disinherited.  However, while the Court was willing to consider that suspicion may be a factor in determining whether a will as a whole is valid (an example would be suspicion contributing to a finding of undue influence), it was not satisfied that there was authority to hold that suspicious circumstances may be used to strike only a single provision in a will, leaving the remainder of the will valid.

April 28, 2014

Former Toronto charity scene queen charged with bilking millions from elderly Florida woman

We are hearing too many of these stories.  This one gets a lot of press because of the individual involved but we all have stories of how this type of abuse goes on every day.

See the story in the Toronto Star.


March 27, 2014

MP Steven Fletcher to introduce 2 bills on assisted suicide

While not expected to be supported by the Harper government, Conservative MP and former cabinet minister Steven Fletcher plans to introduce two private members bills dealing with assisted suicide.  One would allow doctors to assist people in ending their lives under restricted circumstances. The other would set up a commission to monitor the system.  It will be interesting to see how this issue plays out with the pending appeal to the Supreme Court of Canada in the Carter/Taylor case.


January 8, 2014

What May Surprise You About Dementia Rates

Dementia in its various forms is, quite properly, a syndrome that is receiving more and more attention, in the media, in medical writing and research and in the law. I was a bit surprised then to learn from an article in the New England Journal of Medicine that dementia rates, by percentage of population, have actually declined since 1982, according to a number of studies reviewed. Of course, in real numbers cases are on the rise given an aging and longer-living population. However, it is good to know that advances in prevention and treatment are being made, even if slowly. It was interesting to note some of the factors highlighted in preventing or forestalling dementia, being “improving educational opportunities in both early and later life, reducing vascular risk factors, and promoting greater physical activity”.

June 12, 2013

Quebec to table bill legalizing medically supervised euthanasia

April 26, 2013

Summary Judgment and Testamentary Capacity – The Ontario Court of Appeal Speaks

The use of summary judgment motions to dismiss will challenges appears to have been given a boost by the Ontario Court of Appeal. In Orfus Estate v. Bessie Orfus Family Foundation, the Court heard an appeal from the Superior Court, which granted summary judgment dismissing a challenge by the daughter of the deceased to the validity of two wills and a codicil. The challenge was grounded in an allegation of a lack of testamentary capacity and of undue influence. The motion judge held that the testator had capacity, knew of and approved the contents of the documents and that their execution was not procured by undue influence. The Court of Appeal upheld that decision. The case is interesting for a few reasons.

The decision under appeal was decided before the Court of Appeal decision in Combined Air, which established or clarified (depending on your viewpoint) the test for summary judgment in Ontario. On appeal, the Court applied the Combined Air “full appreciation” test to ask – “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial”.

A voluminous record often bodes ill for meeting the full appreciation test, usually because “more paper” is often equated with “more complicated” and therefore deserving of a full trial. However, in the circumstances of this case, the fullness of the record (20 witnesses, 5000 pages of evidence, including exhibits) may have had the opposite effect.

The Court found that the evidence, while voluminous, was not particularly contradictory and did not raise issues of credibility. Much of the evidence was from the deceased’s physicians and lawyers who, unless there is evidence otherwise, are generally considered by courts to be disinterested, reliable witnesses and therefore not usually prone to credibility problems. Here, the physician / lawyer evidence was found to either support the position that the deceased had capacity and was not unduly influenced, or to be inconclusive either way. Rather than add to the complexity of the case, it appears that the Court saw the volume of evidence as bolstering the case for capacity.

Granted, this was not a case involving significant conflicting evidence of capacity or undue influence from family members, which is often the case. Credibility issues tend to arise more often where the evidence of interested family members is important to the court’s findings. However, reading into the comments of the Court, the message appears to be that testamentary cases generally are good candidates for summary judgment, at least in the cause of dismissing them. The Court noted that the evidence of the main party, the deceased, cannot be subject to credibility (at least none that can be tested at trial, for obvious reasons). As well, as stated, courts will generally prefer available medical evidence and the evidence of the drafting lawyer and witnesses to the execution of a will or codicil over that of self-interested offspring. Therefore, with this case, the Court of Appeal may be signaling that the availability of sound evidence of reliable professionals to support a finding of capacity should encourage the use of summary judgment in dismissing will challenges.

As a postscript, the Court of Appeal has released its decision on costs of the motion. The successful respondents asked for substantial indemnity costs of approximately $85,000 or in the alternative, partial indemnity costs of approximately $58,000. The Court granted costs of $30,000, stating that the party alleging incapacity “argued reasonable questions of law and process, and her challenge to the codicil raised a difficult issue”.

Comments of the Superior Court of Justice in the first three paragraphs of Baywood Homes v. Alex Haditaghi are also interesting. While not a will challenge case, the comments of Justice Belobaba support the notion that “more paper” does not equate with “more complicated”.

See also Blanchard v. Bober.