disinherited.com recently blogged that the medical profession as a whole is woefully lacking in training and experience in the assessment of testamentary capacity.
The purpose of this paper is to provide a brief overview of some of the criteria that a doctor should utilize when performing a mental state medical examinations.
The doctor should firstly obtain all of the medical and psychiatric notes will him him as well as an outline of the contents of value of the testator’s estate. This is crucial.
The assessment should always take place face-to-face, and when dealing with the elderly elderly suspected of havinag dementia, it should probably take place in the patient’s own resident so as to reduce anxiety, which can greatly affect the test results..
Many patients have fluctuating capacity scores and the doctor should test on several occasions over a period of time in order to get a more complete diagnosis
The doctor should of course keep detailed contemporaneous notes as well as be informed and instructed by the solicitor as to the legal test for capacity (Banks v. Goodfellow )
The assessment should definitely be conducted in the absence of anyone who stands to benefit from the will or who might exert influence on the testator.
This is very important in that doctors are typically under a great deal of time pressure and often allow caregivers and other interested parties to provide the history to the doctor, rather than hearing it directly from the patient’s mouth. The patient may very well be unable to express him or herself and thus get lost in the process.
Medications, language barriers, serious depression and general reluctance to be examined are also common problems confronting the physician when conducting a mental assessment of the elderly.
From a legal perspective the standard of proof for court decisions as to whether a person lacks or has testamentary capacity, is on the balance of probabilities, and not beyond a reasonable doubt as is required in criminal cases.
The doctor should understand this and perhaps approach the issue as ” is it more probable than not that this patient lacks or has testamentary capacity?”
During the assessment it is necessary that leading questions, that is questions that suggest the answer, should be avoided as much as possible.
In order to conduct a proper assessment of testamentary capacity, it is necessary to probe the mind and ask detailed questions where the answer is not suggested.
The content of previous wills should be discussed and the reasoning with respect to a new will should be elucidated, particularly where a close family member previously included in a will is now being disinherited.
The following table are the various criteria with which the doctor will individually address when performing the mental state examination:
The mental state medical examinations:
Appearance: posture, dress, personal hygiene, grooming.nonverbal communication, manner, etc
Behaviour: restlessness, threatening behaviour, degree of cooperation, etc
Mood: subjective and objective description
Affect: blunted, inappropriate, appropriate or depressed
Speech: rate {pressured or slow), volume, tone, quantity, appropriate/inappropriate content, dysarthria, or dysphasia Perception: hallucinations (auditory, visual, olfactory, gustatory or tactile). depersonalisation or derealisation
Thought: Stream: slow (psychomotor retardation) or fast (flight of ideas)
Form: illogical, fragmented, logically connected or disjointed
Content : overvalued ideas, delusions, suicidal and homicidal thoughts, preoccupations, or phobias
Insight: patient’s awareness and understanding of the condition and treatment
Cognition: Mini Mental State Examination and other cognitive tests Judgement: response to hypothetical scenarios (e.g. what would you do
if you found a sealed, stamped and addressed envelope on the street
Rapport: demonstration of warmth, ability to partake in the
doctor-patient relationship
– See more at: http://www.disinherited.com/blog/mental-state-medical-examinations#sthash.RUJr1WKa.dpuf
Banks v Goodfellow- The “Old Chestnut” Is Still The Leading Case
The most commonly cited criteria for testamentary capacity were established in the English case of Banks v Goodfellow.3 In this case, Lord Chief Justice Cockburn outlined his understanding of a “sound disposing mind”:
“It is essential that a testator shall understand the nature of the act and its effect; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties: that no insane delusions shall influence his will in disposing of his property and bring about the disposal of it which, if his mind had been sound, would not have been made.”
These essential elements of the judgement are paraphrased and summarised in Table 1. These criteria represent the standard reference in the assessment of testamentary capacity and are repeatedly invoked in the international literature on the subject They form a reference base for most American and English commonwealth courts.
The essential elements of the Banks v Goodfellow judgement paraphrased from
Lord Chief Justice Cockburn.3
The testator/testatrix must be capable of understanding the nature of the act of making a will and its consequences, (i.e. the person understands what a will is. when it comes into effect, that it can be changed at a later date, the role of the executor, etc)
The testator/testatrix must be capable of understanding the extent of his/her estate, (i.e. property jointly or solely owned by them, other assets, insurance policies, etc)
Whilst the competent testator/testatrix will ultimately decide who the beneficiaries shall be, he/she must demonstrate understanding of the logical claims of those who might expect to benefit from his or her will. This applies to both those being included and those being excluded from the will.
The testator/testatrix must be capable of understanding the practical effect of the wilL (i.e. who receives what, the impact of the will on the beneficiaries and on those who are excluded, the impact on any previous will, the impact of any changes from a previous will, the impact of any conditions attached to the will, that a beneficiary might pre-decease him/her, etc)
The testator/testatrix must be free of any disorder of mind or delusions (i.e. mental illness) that shall influence his/her will and bring about a disposal of his/her property which, if his/her mind had been sound, would not have been made.
– See more at: http://www.disinherited.com/blog/what-constitutes-testamentary-capacity#sthash.oA7Hewcj.dpuf
Ending Life Support is a very topical and controversial topic in recent years and on a continual basis.
The question of termination of life often raises strongly held beliefs. In recent years we have seen several contentious cases dealing with questions ranging from doctor assisted suicide to the withdrawal of life support systems.
Remember Terri Schiavo the Florida woman whose case provoked a legal struggle that lasted from 1998 to 2005? After a judge ordered the removal of her feeding tubes, several appeals and government interventions followed, including President George W. Bush signing legislation designed to keep her alive. She finally died 2 weeks after life support was finally terminated.
There is a clear distinction between making a legal decision to withdraw life support and acts of euthanasia and assisted suicide. Under Canadian law, both euthanasia and assisted suicide are currently criminal offences. Paradoxically, there is no law against suicide itself . Thus unsuccessful candidates cannot be prosecuted.
End of life concerns arisedaily in our medical system. According to a 2001 article entitled “Issues to consider when ending life support” in the American College of Physicians ACP Internist, 75% of U.S. hospital deaths occur after decisions made in consultation with the patient or patient’s family to withhold or withdraw treatment.
Where no such decision is made, a patient may remain on life-support systems for a lengthy period until he or she ultimately dies. Leaving aside any ethical or moral questions, the patient’s quality of life is presumably abysmal and the financial costs are staggering.
When a decision is made to withdraw life support, this is often done by withholding food, hydration, and ventilation. Controversy may arise as to whether or not this should occur and it may take several days to die. One may be tempted to ask: Would I want my own life terminated in such a manner?
Examining the question of Withdrawal of Life Support
It is worthwhile to re-examine the conditions under which our society is willing to sanction the withdrawal of life support systems.
Such questions generally arise in a legal context in the case of mental incapacity because provided an adult person is mentally competent, that person may lawfully refuse life-sustaining medical treatment, for example kidney dialysis.
It is crucial to recognize that death is inevitable—all that life support systems do is postpone that inevitability—they do not prevent death, rather they simply prolong life.
Canadian Case Law
An interesting examination of some of these questions recently arose in the caseof Alberta (Child, Youth and Family Enhancement Act, Director) v D. L. 2012 ABCA 275 (appeal decision)2012 ABQB 562(trial) The trial decision also involves an excellent review of the law.
This case involved a 2 ½ year old girl who was brought to hospital in cardiac arrest which resulted in irreversible brain damage. After three months she remained deeply comatose and completely dependent on technology to remain alive. She had already undergone three episodes of pneumonia and would inevitably require invasive surgery with significant risks of bleeding and infection—for example her temporary tracheotomy tube would have to be replaced with a more permanent one. All medical specialists, including her treating physicians, unanimously agreed her condition was hopeless and that no further intervention was warranted.
The girl’s parents had signed a “do not resuscitate” direction on admission, however they were since charged with aggravated assault of their daughter and held in custody pending trial. Presumably if she died, they would face far more serious charges.
The provincial Director responsible for youth, had obtained an apprehension order from the court and commenced an application for permanent custody which was pending. The Director also brought an action in Alberta superior court (our equivalent of B.C. Supreme Court) asking the Court to invoke its parens patriae jurisdiction.
Parens patriae is the inherent jurisdiction of the superior courts to intervene to protect children and promote their well-being. This jurisdiction was developed historically by the common law and is founded on the necessity to act to protect those who cannot care for themselves.
The parents opposed the Director’s application to the court to apply its “parens patriae” jurisdiction and raised religious arguments opposing the application.
The court acknowledged the clear conflict of interest of the parents comparing their situation to the usual role of parents in providing instructions to medical staff in such dire situations.
The trial judge examined past cases involving the use of parens patriae jurisdiction. In particular she cited the Supreme Court of Canada case of E (Mrs) v Eve (1986) 2 SCR 388, 31, DLR (4th) 1. She referred to the Court’s opinion that the parens patriae “jurisdiction is very broad in nature and can be involved in matters regarding custody, health problems, religious upbringing, and protection harmful associations (at 426).” Furthermore, she relied on that decisions as saying the jurisdiction may be exercised “not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended,” (at 426)
Religious Beliefs.
In terms of deciding the question of religious beliefs, the trial judge again referred to Supreme Court authority which held that the parental interest in terms of freedom of religion, while a fundamental aspect ,is not absolute and that religious practices can be limited where they impact on fundamental rights and freedoms of others. Thus it was a matter of weighing the both the parents’ rights to freedom of religion and the girl’s best interest.
Terminating Treatment –Is it in The Best Interests of the Patient?
The trial judge again reviewed several authorities where those with decision making authority on behalf of the patient were in conflict with each other or with the views of the medical team . Shecited with approval Lord Goff in Airedale NHS Trust v Bland, (1993) 1 All ER 821 (HL) ,
Lord Goff succinctly framed the issue as follows “the question is not whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.” (At para 33)
Having reviewed the law, the judge concluded that she did have parens patriae jurisdiction to make an order in the best interests of the child in this case. She observed that the cases reflect a “general societal understanding that a life without awareness and totally supported by machines is not in accord with the best interest of any patient, including a child,”. She found the evidence in this case, to be clear and unequivocal that it was in the girl’s best interest that life-sustaining treatment be stopped. There was unchallenged evidence that she would never regain consciousness and be interactive and that she would require invasive treatment imminently simply to be maintained on a ventilator.
The trial judge also found that although the parents’ religious beliefs were entitled to consideration, they were not determinative and were contrary to the child’s best interest in a fundamental way.
Accordingly the trial judge directed that it was in the girl’s best interest that the recommendation of the medical team be followed and that the girl be withdrawn from life-sustaining treatment and provided with palliative care. This decision was upheld by the Court of Appeal.
Conclusion
In summary, in Canada where it is the unanimous opinion of the medical specialists that treatment should be stopped because the patient’s continued life would be without awareness, without hope of recovery and with the need for invasive treatment with no potential benefit, then it is likely the court will find that continued life support should be terminated in the best interests of the patient.
As a practical matter, legal professionals should make their clients aware that in addition to a will, they ought to have a Representation Agreement or other form of Advanced Health Care Directive relating to the kinds of treatment that he or she would accept if the client is to become incapable. Such documents are relatively inexpensive to prepare and can relieve a great deal of family stress at a very difficult time.
– See more at: http://www.disinherited.com/blog/ending-life-suport#sthash.T6OWzYon.dpuf
All written or oral communications between a prospective client and disinherited.com are strictly confidential in accordance with the professional and ethical duties imposed upon lawyers throughout the world.
The purpoe of it is to maintain the client’s confidence above all other concerns.
Communications between a client and a lawyer are in fact the only profession that has such strict rules of confidentiality.
While many people believe that what they tell their doctor or other such professional is confidential, and it usually is, it can still be compellable in evidence and be disclosed, while the same is not true of such communications with a lawyer.
In British Columbia the lawyer’s professional conduct of handbook in chapter 5, reads as follows:
1. “A lawyer shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, regardless of the nature or source of the information or the fact that others may share the knowledge, and shall not divulge any such information unless disclosure is expressly or impliedly authorized by the client, or as required by law or by a court.”
The duty of confidentiality is so extreme that it survives the end of the legal relationship, and even survives death.
Chapter 5.4 of the same lawyers handbook states as follows:
4. “A lawyer shall preserve the client secrets even after the termination of the retainer, whether or not differences have arisen between them. ”
There are very few exceptions to this rule such as 5.12 providing that the lawyer may disclose information if the printer prevent death or serious bodily harm to any person.
Even then the lawyer is required to only disclose the minimal information necessary.
The test for mental capacity to prepare a will is a legal test and not a medical one, although the court will always be interested in the opinion of the medical practitioners, particularly those who were treating the deceased.
Accordingly, family doctors have been occasionally requested to provide opinions on typically an elderly patient’s ability to handle his or her financial or personal affairs, and to make a will.
I was flabbergasted the first time I cross-examined a family physician as to how much training he had undergone in medical school as to the evaluation of a person’s mental capacity, and he answered none.
Since that was 20 years ago, I have asked many doctors since then, and the answer never appears to be much more than about an hour, maybe.
The fact of there is no standardized tool for medical practitioners to which to refer in the assessment of mental capacity speaks volumes.
Most family doctors are simply too busy to make the proper inquiry and often fall into the trap of asking the caregiver accompanying the patient as to the problem, treatment etc. rather than taking the time to ask or explain to the patient him or herself.
Times are changing dramitically, and it is important for the medical profession to literally pull up its socks and learn more about the assessment and proper documentation of the early signs of dementia and to instigate the proper referral and/or treatment at an earlier time.
The population is not only aging, with a greatly increased amount of accumulated wealth, but has also grown multi-fold in its complexities as a result of divorce, remarriage, common-law relationships, same-sex relationships, deliberate single parents, multiracial/religious blending of families, etc., all of which is not only going to lead to an increase in estate litigation, but will also put greatly increased demands on the medical profession to provide opinions on their patients mental capacity.
From a legal perspective, a doctors understanding of mental capacity may very well be different from the legal test, and is important for the lawyer when asking the doctor for an opinion as to a patient’s mental capacity, to properly instruct the doctor as to the legal test.
More will be said on this topic in subsequent blogs.
disinherited.com wholeheartedly endorses the recent article in the Vancouver Sun on October 22, 2012 co -written by Marjorie Griffin Cohen and retired former Justice Donna Martinson.
There simply needs to be more women and minorities appointed as Federal Court appointed Judges to the BC Supreme Court.
The authors noted that in the past two years the federal appointments to the Supreme Court of British Columbia have been 10 in number, none of which have
been female and none of from an ethnic minority.
Shockingly, since 2009, of the 31 appointments, only five were women and only one was not Caucasian.
The authors note that these mostly white male appointments simply compound the already historical serious lack of female and minority representation on the Supreme Court bench.
For many years now our society has become increasingly multicultural with a diversity of backgrounds, ethnicities, experiences, and perspectives that must be matched by the equivalent diversity and skills on our bench.
The report was also critical of the very few appointed justices who have experience in family law, of which there is a great need to be filled by our courts.
Family law by its very nature grapples with societal problems that ultimately affect everyone.
With the high divorce rates, It is probably the one area of law that most people will come into contact with at some point during their lifetime, yet it is seemingly not taken seriously by the powers that be.
For example, BC is one of the few Provinces that does not have specialized family courts, another seemingly egregious oversight.
Women and minorities have historically been vulnerable and marginalized, yet still have suffered dramatic cutbacks to legal assistance such as legal aid in recent years.
It is simply fair and the hallmark of an advanced democracy that skilled women and minorities be chosen in appropriate more proportional representations as members of the Supreme Court of British Columbia.
– See more at: http://www.disinherited.com/blog/more-women-and-minorities-need-be-appointed-judges#sthash.aeVoXURC.dpuf
The laws relating to family law and estate planning are intersecting and clashing more and more often.
Until recent years, an entirely different approach was taken by the “Probate Courts” and their estate related actions, and the “Domestic Relations” Courts and their vitriolic divorces.
They were separate and distinct in their case law precedents and general attitudes, but no more.
The Ontario case of Makarchuk v Makarchuk 2011 ONSC 4633 ( Appeal to Court of Appeal dismissed January 23,2012, and leave to appeal to the SCC refused) two different approaches clash.
The Makarchuks were married for over 40 years and separated, but did not divorce in 2003.
They signed a separation agreement ion 2003 and the husband died 5 years later in 2008.
The last will of the deceased, a retired lawyer, was one he prepared himself and signed 5 months prior to signing the separation agreement.
The wife was appointed executor and sole beneficiary.
The separation agreement contained a release of all claims provision that stated inter alia:
” –the husband and the wife each release all rights which he or she has or may acquire under the laws of any jurisdiction in the estate of the other–”
The issue was whether the wife had released her entitlement to share as a beneficiary and executor of her late husband’s estate.
An adult son of the marriage said that the separation agreement “thrumped the will”, but the Courts disagreed and allowed the wife to inherit.
The Court found that the wording of the release in the separation agreement ,made only 5 months after the will, was not broad enough include rights acquired under the will- the release only speaks of “rights acquired under the law.”
Many clients and even some lawyers do not appreciate the legal distinction between a separation and divorce.
Under the provisions of the Divorce Act, s 16, had the parties being divorced the widow why would not have been allowed to inherit and would have been treated in law as if she had predeceased her husband.
Since they were merely divorced, and the provisions of the release in the separation agreement were not exact enough to preclude the widow from inheriting, the court concluded that the deceased had ample time to change his will had he wished to do so, and allowed his wife to inherit
– See more at: http://www.disinherited.com/blog/family-laws-and-estate-planning-laws-may-clash-makarchuk-case#sthash.2Cpo3hVd.dpuf
Periodically disinherited.com republishes an international news story relating to inheritance laws.
While almost everywhere in the world lacks the Wills Variation act that British Columbia and New Zealand enjoy, it is gratifying to see the rights of disinherited spouses anad children expanding throughout the world, slowly by slowly, where they replace previously unjust laws.
In a landmark ruling Botswana’s High Court on Friday gave women inheritance rights for the first time, up-ending a male-dominated system that had prevailed in the thriving African nation.
Announcing the ruling, Justice Key Dingake said, “It seems to me that the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born.”
The court ruled that a tribal law, giving the youngest-born son rights to inherit the family home was not in line with the country’s constitution, which guarantees gender equality.
The court had been hearing a case brought by three sisters aged over 65, whose claim to family property was being challenged by their nephew.
“This is a significant step forward for women’s rights not only in Botswana but in the southern Africa region, where many countries are addressing similar discriminatory laws,” said Priti Patel of the Southern Africa Litigation Centre.
An Alberta Curt ordered that life support be withdrawn of an irreversibly critically ill infant.
Alberta Appeal Court (Child, Youth and Family Enhancement Act, Director) v D. L. 2012 ABCA 275 and 2012 ABQB 562.
“Right to die”, and “pull the plug” cases are increasingly before the courts and in the media as a more informed public, push the boundaries of legal principles in a continuing interaction with radically changing medical technologies .
Such was the September 14, 2012 decision of the Alberta Court of Appeal in this decision that instantly became a nationals interest story. The court ordered that life extending treatment for a catastrophically and irreversibly injured young child be withdrawn. An application for a further stay, pending an application for leave to appeal to the Supreme Court of Canada was dismissed.
The child passed away shortly thereafter.
This case falls into what might loosely be categorized as the “pull the plug” type factual scenarios that typically involve a matter of life and death relating to a person who is incapable of making such a decision him or herself.
These facts are juxtaposed to recent applications where parties have applied to the court for permission to terminate their own life in a lawful manner while they are still able to make the decision to do so, such as on June 15, 2012 when Justice Lynn Smith of the BCSC issued a 395 page ruling that granted Gloria Taylor the right to die in a doctor assisted suicide, and gave Parliament one year to change the law accordingly.
Fact of this case:
In late May 2012 paramedics attended a 2 1/2-year-old female child who was in cardiac arrest. She suffered a profound and irreversible brain injury as a result of the cardiac arrest. After three months she remained deeply comatose and completely dependent on technology to survive. The infant was almost brain-dead and it was believed by all physicians treating her that her situation was permanent and hopeless.
In fact, medically her situation would only worsen given that she would inevitably require various surgical procedures with significant risks of bleeding and infection. She had already undergone three episodes of pneumonia since her admission.
The unanimous recommendation of all of the specialists, including all treating physicians, is that life-sustaining therapy should be withdrawn.
The parents had initially signed a “do not resuscitate” order until they were charged and incarcerated with several serious criminal charges, including failure to provide the necessities of life.
The parents then completely changed their position and opposed the Director’s application to apply its “parens patriae” jurisdiction ( literally the role of the state, but here the Courts, to protect persons under a legal disability) to determine the course of treatment for the severely comatose infant.
The parents also raised religious arguments opposing the Director’s application stating:
” my religious belief is that if it is Allah’s will that despite all the doctors can do to for ( the child) , if she passes from this life then it is God’s will. As a devout Muslim and loving father I find it unthinkable to agree to limit her withdrawal medical treatment. I ask that the court honour my beliefs that the ultimate course of her life not be made by doctors limiting or withdrawing treatment. ”
His wife agreed with the statement.
The court acknowledged the clear conflict of interest of the parents who faced even more serious criminal charges if their child died, and compared their situation to the usual crucial role of parents in providing instructions to medical staff in such dire situations.
Legal Issues:
1. Did the Court have “parens patriae” jurisdiction, and if so, should it exercise it?
2. The role of religious beliefs where they conflict between a child’s parents or guardian and a medical team.
3. A review of the law relating to terminating treatment and the best interests of the patient.
1. Parens Patriae:
The child’s parents raised various arguments that the court should not exercise its inherent jurisdiction to protect children by making a treatment decision that would limit or end her life.
The court had little difficulty in overcoming these arguments and invoking its jurisdiction and referred to the following two Supreme Court of Canada decisions:
“[31 ] Parens patriae jurisdiction is vested in the provincial superior courts of Canada. The common law recognizes the power of the state to intervene to protect children, where their lives are in jeopardy, and to promote their well-being. This intervention is based upon the state’s parens patriae jurisdiction: B(R)v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, at para 88, 122 DLR (4th) 1.
[32] The history of parens patriae jurisdiction, as well as the scope and discretion in applying the jurisdiction, was canvassed by the Supreme Court of Canada in E (Mrs) v Eve, [1986] 2 SCR 388, 31 DLR (4th) 1. The principle underlying the application of parens patriae is the child’s “best interests,” and is founded on the necessity to act for the protection of those who cannot care for themselves. The Court is required to exercise this jurisdiction in the “best interests” of the protected person. Justice La Forest also stated that the categories under which the Court may exercise its parens patriae jurisdiction are never closed, the jurisdiction is very broad in nature and can be invoked in matters regarding custody, health problems, religious upbringing, and protection against harmful associations (at 426). Furthermore, the Court noted that the jurisdiction may be exercised “not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended” (at 426).
[33] Noteably, the Court in Eve, stated there was no doubt parens patriae jurisdiction may be used to authorize the performance of a surgical operation necessary to the health of a person. However, the Court chose not to address the issue of whether the courts should permit the removal of life-sustaining equipment (at 427).
[34] A central requirement of the proper exercise of parens patriae jurisidiction is that the Court must consider only what is necessary for the protection of the person, for whose benefit the jurisdiction is exercised. The Court in Eve determined the discretion under parens patriae is to be exercised for the benefit of that person, not for that of others (at 427).
[35] Generally, in order to exercise parens patriae jurisdiction, there must be a legislative gap which requires the Court to exercise it’s discretion: Beson v Director of Child Welfare, [1982] 2 SCR 716; RR v Alberta (Child Welfare Appeal Panel), 2000 ABQB 1018,267 AR 249. Parens patriae cannot override express statutory authority: JU v Alberta (Regional Director of Child Welfare), 2001 ABCA 125 at para 7,281 AR 396.”
2. Religious Beliefs
The Court again canvassed two leading authorities relating to the conflict that can arise between a child’s parents and the treating medical team, again in the Supreme Court of Canada decision B(R) v Children’s Aid Society, and Sweiss v Alberta Health Services, 2009 ABQB 691, which dealt with religious beliefs held by a legally disabled adult patient.
The Supreme Court of Canada in the B(R) case held that the freedom of religion of the parents was at stake in the appeal, and not that of the child itself.
The right of parents to raise their children according to their religious beliefs, including moral upbringing and choosing medical and other treatments, is a fundamental aspect of freedom of religion.
The state may interfere only where it considers it necessary to safeguard the child’s autonomy or health and where such intervention is justified.
However, freedom of religion is not absolute and religious practices can be limited where they impact on the fundamental rights and freedoms of others.
In the adult case of Sweiss, ” Justice Ouellette found the patient’s direction regarding treatment is a factor which must be considered by the Court, whether or not those wishes are grounded in religious belief. However, religious beliefs cannot trump all other opinions or principles in determining what is in the patients’ best interests. Therefore, religious beliefs should be given considerable weight, but subject to the patient’s best interests (at para 44).
[45] The appropriate test to apply for injunctions where the situation is urgent and life-threatening is what is in the patient’s best interest. Justice Ouellette, at para 63, outlined several considerations including:
(1) The medical condition of the patient;
(2) The recommended medical treatment, which includes doing something, nothing, or very little;
(3) The wishes and beliefs of the patient, if they are known; and
(4) What is just and equitable in all of the circumstances of the case.
[46] The Court found as a general premise, that courts and patients should not require doctors to provide a course of treatment which is not in the patient’s best interest. The Court would not order the removal of the DNR because it would be in Mr. Sweiss’ best interest that there be no attempts at resuscitation, based on the doctor’s evidence that active intervention would create substantial harm and no benefit. However, the Court issued an interim injunction to prevent the removal of the mechanical ventilator in order to obtain an independent assessment regarding Mr. Sweiss’ condition (at paras 66-70).”
3. Limiting or Terminating Treatment and the Best Interests of the Patient
The court reviewed five decisions where conflict arose between those with medical authority on behalf of an incapable patient, conflicted with the medical team and recourse to the Courts was sought.
Re LIC (Dependent Adult), 2006 ABQB 130, 398 AR 229 concerned a dependent adult who suffered from a long-standing brain injury and was under the guardianship of the Public Guardian. She suffered a cardiac arrest as a result of which her condition declined, and she lapsed into a vegetative state. The doctors determined that there was no reasonable likelihood she would recover to pre-cardiac arrest neurological status. She would remain in a permanent vegetative state and ultimately would die because of an infectious complication.
The doctors recommended that the endotracheal tube be removed, and if the patient went into cardiac arrest, no further life-sustaining treatment would be undertaken. The doctors felt that any continuing medical care should only focus on comfort and supportive measures (at para 7). The family did not dispute this and entrusted the decision to the Public Guardian, who sought direction from the Court.
In considering what was in the best interests of the dependent adult, Justice Acton relied on the reasoning of Lord Goff in Airedale NHS Trust v Bland, [1993] 1 All ER 821 (HL) who stated
“the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care” (at para 33). (emphasis added)
Conclusion
The case gives a good review of the law relating to “parens patriae”, the conflict between religious beliefs and care providers, and the circumstances where the courts will intervene to the extent of terminating a human life under medical direction.
The latter issue is the most current summary of the law in Canada and can be summarized that if the unanimous opinion of the medical specialists is that life should be terminated by the courts, even over the objections of religious or other well founded concerns or beliefs, the bests interests of the patient will be followed by the Court, which likely will in turn mean that “life will not be prolonged by the continuance of medial treatment or care.”
– See more at: http://www.disinherited.com/blog/alberta-appeal-court-orders-life-support-infant-be-withdrawn#sthash.NnbLbhZx.dpuf
Young v Abercrombie 2008 BCSC 389involved an estate dispute relating to a conflict between the wording of the deceased’s will and the subsequent codicil to the will.
Donald William Abercrombie (“Donald”) died on December 16, 2005, leaving a will executed on November 19, 1981, and a codicil to the will executed on October 28, 2004. He was survived by his two adult children, Kim Amanda Young (“Kim”), the named Executor, and Barry Donald Abercrombie (“Barry”).
[3] Clause 4(d) of Donald’s will directs the Executor to:
… divide the rest and residue of my estate equally between my two children, KIM AMANDA ABERCROMBIE and BARRY DONALD ABERCROMBIE. If either of my said children shall predecease me leaving issue, then such issue shall take in equal shares per stirpes the share such child would have taken if living. If any of my said children shall predecease me leaving no issue, then the share to which such deceased child would have been entitled shall be transferred to my surviving child for his or her own use absolutely.
[4] The codicil sets out the following:
Should either of my children become incapacitated due to illness or accident it is my instruction that my Trustee invest my incapacitated child’s share of my estate into investments or a form of annuity. My Trustee shall have the sole discretion to invest monies and advance monies as she or he she sees fit.
In all other respects I confirm this will.
The court reviewed various rules of construction of wills and turned to the issue of the strong presumption that the probate courts have against finding an intestacy. The courts will where possible, construe a will so as not to lead to an intestacy.
“Further, in the construction of wills, there is a strong presumption against intestacy. This often-cited principle was articulated by Lord Esher, M.R. in Re Harrison Estate (1885), 30 Ch.D. 290 at 393-4, as follows:
There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.
In Baldissera v. Baldassi (1997), 18 E.T.R. (2d) 128 (B.C.S.C.) at para. 10, Edwards J., citing The Canadian Law of Wills, vol. 2, confirmed that:
There is a presumption against intestacy and the court will prefer an interpretation of the will which avoids an intestacy.
And further, at para. 11, Edwards J. held:
The court on reading the will as a whole may conclude that the testator clearly intended to dispose of his entire estate. Once such an intention is clear the court will construe the will so as to give effect to the will in preference to a construction which will result in a partial or total intestacy.
A similar conclusion is found in Jankowski v. Pelek Estate, [1996] 2 W.W.R. 457, 131 D.L.R. (4th) 717 (Man. C.A.), where Helper J.A. at para. 76 stated, “[i]f the will is capable of two constructions, one which disposes of the whole estate and the other which leaves part of the estate undisposed of, the court will prefer the former.”
And finally, if it is reasonable to do so, the will and codicil should be read in harmony so as to avoid an intestacy. Donald clearly intended to dispose of his entire estate, and it is therefore the role of the court to construe his will and codicil in a manner that does so.
[36] Here, if an intestacy is the result, one of Donald’s children, Kim, will receive 75% of his estate, while the heirs of the other, Barry, will receive 25%. That result does not confirm Donald’s will; it re-writes it, both in respect of the bequest to Barry, and also to Kim. The intended equal sharing between Donald’s children would not be the result.
[37] In all of the circumstances, I have concluded that Donald’s will and codicil, when read together, provide for the vesting of one-half of the residue of Donald’s estate in Barry when Donald died.
