PART 1–SENIOR HEALTH
1. Everyday, medical opinions are given, treatment choices are made and care services are rendered.
2. People are living longer. This is due in part to scientific progress, technology and new medical techniques. It is also as a result of a heightened awareness of the virtues and benefits of cleaner living. Of course, all of this is good news. But along with the obvious benefits come urgent life and death situations raising ethical questions. Faced with complex circumstances, health professionals and hospital centres might do or neglect to do something. In the instance of the elderly, this could be very serious. Often, they must deal with the patient as well as their families. There may be dissatisfaction and lawsuits could arise. In this problematic area, guidance is needed.
3. In the first chapter, we will address capacity, consent to (or refusal of) treatment and emergency.
4. In the second chapter, we will consider the subject of medical errors and malpractice as well as improvements on deficient medical methods/procedures.
5. Next, in the third, we will examine advance care planning. This includes an Advance Medical Directive (Living Will).
6. In the fourth chapter, we will deal with the subject of the withholding or withdrawal of treatment. This concerns both the discontinuance of aggressive medical treatment and the choice between the continuation and withdrawal of life support.
7. And in the fifth chapter, we will survey the problematic area of euthanasia and assisted death. We submit a new study model comprising sub-forms such as double-active and active euthanasia. There is an analysis of the significant jurisprudence on point. Respecting double-active euthanasia, we will examine the cases of Robert Latimer and Dr. Nancy Morrison, to name a few. Regarding active euthanasia and assisted death/suicide, there is the matter of Sue Rodriguez. We have also included pleadings in equity for and against euthanasia
8. In chapter six, we will look at palliative care, and non-aggressive medical attention and procedures in a psycho-geriatric unit. Insofar as hospice is concerned, we will review the principles according to several leading writers, its history in Canada plus the current situation.
9. The seventh chapter addresses the health insurance system. After an overview of the health insurance legislation and programs, we will examine problem areas. Examples are instances in which one must fight the health and social network, which fails to render the needed services. Alternatively, there are times when the coverage offered by health insurance is insufficient. In addition, there is the difficulty of out-of-province medical-hospital care (and reimbursement of associated expenses). Finally, we have inserted a piece on the health system, same touching on policy issues and public opinion.
CHAPTER 1—CAPACITY, CONSENT TO (OR REFUSAL OF) TREATMENT AND EMERGENCY
10. A person is the master of his or her body and may determine what is to be done therewith. He or she has the right to refuse or accept health care and medical treatment. A health practitioner/provider must receive a patient’s consent before rendering any services; this applies to an examination, the taking of a specimen, the administration of a vaccination, the giving of a blood transfusion, the performance of a medical procedure and similar instances. Below is a synopsis of the concept of consent, to (or refusal of) treatment and the related topic of emergency care. We will begin with with the essential issue of capacity.
11. Incapacity in the context of consent to (or refusal of) treatment is a significant issue for medical practitioners. After defining capacity, we will investigate a selection of the case law.
12. The word, “incapable,” as defined in Webster’s New World Dictionary (Guralnik, David B., (Editor in Chief), (2nd College ed.), William Collins + World Publishing Co. Inc., U.S.A., 1978), is “a) lacking the necessary ability, competence, strength, etc. b) not legally qualified or eligible…” In her work, entitled, 21 Common Misunderstandings About the Substitute Decisions Act and the Health Care Consent Act, (Unpublished, 1996, pg. 4), Judith Wahl specified that incapable/incompetent is the “term used to indicate that a person is no longer able to understand the information that is relevant to making a decision and/or is not able to appreciate the “reasonably foreseeable consequences of the decision or lack of the decision.”
CHAPTER 3—ADVANCE CARE PLANNING
120. Death is a part of life’s journey. However, a person’s decline and passing is not a pre-programmed event of fixed-time duration, same having a preordained start and finish and scheduled highs and lows in the middle. While some may go painlessly, others die more slowly. They might require extensive care, which is long term.
121. Furthermore, people dread being unaware and unconscious without any quality of life. And they desperately want to retain their self-respect and dignity. They also fear great pain and suffering. Nevertheless, there is not enough public discussion about dying. Experts say that this must change, in part so that people can better understand what could happen to them.
122. Advance care planning should now be a subject requiring great thought and informed decision making. A further elaboration does follow.
SECTION 1 – INSURANCE AND ADVANCE MEDICAL DIRECTIVE (LIVING WILL)
123. Everyone is potentially a patient and has precautions to take and rights to exercise. He or she can make pre-arrangements in anticipation of the need for long-term care. And he or she may enunciate and communicate his or her desires and leave final instructions, same in advance of certain possible health eventualities.
CHAPTER 4 –WITHHOLDING OR WITHDRAWING TREATMENT
141. Maurice Chevalier used to say, “Old age is not so bad when you consider the alternative.” But, sadly, in certain circumstances, many believe that this is not always true. They recognize that once a disease ravages a body and a life, comfort, not a cure, should be the focus of attending doctors. And when their time comes, these individuals simply want to be allowed to pass on. And in such eventuality, their wish is that the health team refrain from any effort on keeping them alive. In medical jargon, this means that treatment, (inclusive of life support), is withheld or withdrawn. An elaboration of this topic does follow.
SECTION 1 – DEFINITIONS, OVERVIEW AND CASE LAW
142. Winding down treatment is part of the physicians’ lot. And so is the removal of life support. Hereinafter is an overview plus a survey of the jurisprudence.
CHAPTER 5–EUTHANASIA AND ASSISTED DEATH
176. Euthanasia, the age-old problem, may very well be the ultimate deliverance. And humankind seemingly is in a deadly embrace therewith. It divides the medical community, legal scholars and the terminally ill, who appear to have the most at stake. With the growing ranks of the aged, this will become an increasing constitutional burden.
177. It is also one of the most emotional issues which has captured the public’s attention. While it is against the law, this does not end the matter. Euthanasia (and “mercy killing”) is on the minds of Canadians, particularly since the high-profile cases of Sue Rodriguez and Robert Latimer. Society is ahead of the law, since the vast majority disagree with lawmakers, nor do they support law enforcement and prosecutorial vigilance. As per a poll conducted by Léger Marketing, 75.5% of Canadians (84.1% of Quebecers) oppose prosecuting someone who helps to end the life of a person suffering from a painful and incurable illness (Chandwani, Ashok, “City Life, Are Canadians ready for euthanasia debate?” The Gazette, Montreal, Tuesday, July 3, 2001, pg. A6).
181. Professor Emson defines euthanasia, when done to a person under medical care, as:
The killing of a patient, who cannot and/or has not expressed any wish or opinion, by another person, in the belief that this is in the patient’s best interests-in other words, that they would be better off dead. It has been described as “mercy killing”, a more accurate term than the title, which in the original Greek meant something entirely different (Emson, H.E., The doctor and the law, a practical guide for the Canadian physician, Third edition, Butterworths Canada Ltd., Toronto, 1995, pg. 223).
CHAPTER 6—THE GOOD DEATH: PALLIATIVE CARE (AND NON-AGGRESSIVE MEDICAL PROCEDURES) IN A PSYCHO-GERIATRIC UNIT AND HOSPICE
248. The controversy over euthanasia (and assisted death/suicide) has highlighted the ways in which medicine, so good at many things, has failed the dying. In actuality, patients were not getting the necessary care. In part, this may be explained by the views of the collectivity at large. Contemporary cultural beliefs about death derive from ancient mythology. Charon the Ferryman is an appropriate image. And the Angel of death comes to mind. He stares back with unrelenting intensity. These social myths mask the reality that ours is a death-adverse society. This is the environment in which hospice and palliative care has had to function.
SECTION 1 – PALLIATIVE CARE AND HOSPICE PERFORM A VALUABLE FUNCTION
249. Palliative care makes a vital contribution to human comfort and dignity. And hospice is now more important than ever. Hereinafter is a study thereof.
CHAPTER 7—HEALTH INSURANCE AND THE HEALTH/SOCIAL SERVICES NETWORK
316. In the interest of the good health of a nation’s people, there is a health/social services network. To this end, there must be experienced health professionals and well-equipped institutions. And the system must be functional, with services ready and available on a timely basis.
317. JUXTAPOSED THEREWITH IS THE OBLIGATION TO PAY THE COST FOR SERVICES TO BE PERFORMED. WITHOUT PAYMENT, THE SYSTEM BREAKS DOWN AND THE TREATMENT STOPS. THE PATIENT HIMSELF OR HERSELF COULD MAKE THE NEEDED PAYMENT. BUT FOR MANY, MEDICAL INSURANCE PERFORMS THIS FUNCTION.
PART 2—MENTAL ILLNESS/INCAPACITY
1. According to the Canadian Health Network, “Mental health affects every aspect of our daily lives. Our sense of personal well-being has a major impact on our physical health and interaction with others” (Health Canada and affiliate organization(s) Canadian Mental Health Association, in partnership with the Canadian Alliance on Mental Illness
2. Mental illness is not the equivalent of the blues and has nothing to do with character or IQ. Indeed, some well-known sufferers were John Keats, Isaac Newton, Leo Tolstoy, Abraham Lincoln, Virginia Woolf and Winston Churchill (Costandi, Samia, (PhD candidate in the department of culture and values at McGill University and recent recipient of the Helen Prize for Women), “It is wrong to scorn the mentally ill,” The Gazette, Montreal, Monday, May 24, 1999, pg. B3).
3. Mental illness is a complex problem, both health-wise and legally speaking. For the patient, it is as painful and life threatening as any physical illness. For the family, its onset could wreak havoc. Beyond monetary cost, it calls for much love, dedication, time, energy and patience. It is difficult to understand what is happening and to decide what the next step should be, (e.g., hospitalization, outpatient treatment and follow-up, etc.). However, it could be frustrating, demoralizing and exhausting, to the point where the family’s psychological and material resources are depleted.
4. At any given time, one in five adult Canadians has serious mental and emotional problems; and the numbers rise to one in three in a lifetime. There is a high concentration amongst the homeless. It is a major social issue, posing a great challenge to the system. Since its incidence soars as people age, mental illness is a worthy topic in the study of elder law.
CHAPTER 2—MENTAL ILLNESS, EXAMINATIONS, COMMITTAL, DEPENDENT ADULTS
109. Regardless of the variety, a mental disorder will have a significant impact on well-being. Given this stark reality, it may be prudent, in some cases, to raise the subject of examination or committal with clients/patients and their families.
110. A sufferer from mental illness may avoid medical treatment. A person may be unaware of his or her condition, may fear treatment or may be anxious over the related social stigma. Whatever the reason, the sick often go untreated and statistics support this proposition. In 2001, whilst about 11% of Montrealers suffered from a mental health disorder, an estimated 50% thereof did not seek any help (A study released on November 23rd, 2001, by the Direction de la Santé Publique de Montréal Centre).
111. Nevertheless, the law provides the means to help those who are unwilling to seek treatment. It is there to protect those so afflicted, but also the public at large. In this chapter, we will survey the legislation and the jurisprudence regarding idiocy, insanity, etc., (when probating a will) and that respecting insanity in committal cases.
Patient Treatment Refusal–Although Needed—While Competent-Valid
179. Starson v. Swayze ( 1 S.C.R. 722): In this Ontario case, there was an appeal brought by Dr. Swayze after a finding that the patient, Starson, had the requisite capacity to refuse treatment. Starson suffered from a bipolar disorder. He was found not criminally responsible for making death threats and was detained in a hospital. Starson’s physicians proposed treatment, including various medications, which Starson refused to take. Dr. Swayze found that Starson lacked the capacity to decide whether to accept the proposed treatment. The Ontario Health Care Consent Act permitted a person to be treated without consent on the grounds of lack of capacity if it was found that they could not understand the information relevant to making a decision about treatment and could not appreciate the reasonable foreseeable consequences of that decision. Starson applied to the Ontario Consent and Capacity Board, which confirmed Swayze’s finding of incapacity. The Board’s decision was overturned by the Superior Court on judicial review. The Ontario Court of Appeal upheld the findings of the reviewing judge. Swayze appealed.
179.1 The Court found that the Board’s determination of capacity was a question of mixed fact and law. The reviewing judge applied the appropriate standard of review in determining that the Board’s finding of incapacity was unreasonable, being based on findings that were not supported by the evidence. Furthermore, the Board misapplied the statutory test for capacity. This was a question of law to which no deference was owed and a correctness standard of review applied. While the Board found that Starson failed to appreciate the risks and benefits of treatment, it did not address whether the reasons for that failure demonstrated an ability to appreciate the risks and benefits. The Board exceeded its mandate to adjudicate solely on Starson’s capacity and improperly allowed its own conception of Starson’s best interests to influence its finding of incapacity. (For further detail and comment, see Part 1, Chapter 1, Section 1, Paragraph 16 & f.)
© 2005 Practitioners’ Press Inc./ TM Practitioners’ Press Inc.