The Ng End of Life Support Case

MulgrewThe NG End of Life Support Case – Trevor Todd Co counsel

Article By Vancouver Sun Columnist Ian Mulgrew.

The family of a Vancouver man who has languished in a vegetative state for seven years has lost its bid to keep him alive for pioneering brain research.

After seven weeks’ deliberation, B.C. Supreme Court Justice Miriam Gropper refused to let Kenny Ng’s parents, siblings and relatives intervene in the hope he can benefit from recent neuroscience discoveries.

She supported a decision by his wife Lora to ask medical staff to remove her 56-year-old husband’s feeding tubes.

The court was told he will starve to death over about two weeks, a process that will be rendered painless via morphine.

In an emotionally charged hearing in December, the family argued Lora should be replaced as the person making decisions about Ng’s long-term care at the George Pearson Centre, since he may qualify for new treatments by celebrated brain researcher Adrian Owen.

“While this scientific development might hold some promising benefits in the future, at present, it is a speculative conclusion at best,” Justice Gropper said in a 26-page decision released Thursday.

She concluded that Lora’s decision was medically appropriate, supported by the doctors in charge of Ng’s care and made after agonizing thoughtfulness.

“It cannot be said that Lora is acting irrationally or without proper consideration,” Justice Gropper said.

“In respect of the criticism of her motives, that Lora is driven by self-interest, I also disagree …. It cannot be argued that Lora and the children will have emotional relief. They will be relieved from observing Kenny struggle, but they must still face the consequences of his death. The (family) simply disagree with Lora’s decision …. Lora is the proper person to make the decision and she has the authority to do so.”

Ng was described as a former math whiz who graduated from Sir Charles Tupper secondary to become an electrical engineer.

He started his own successful business, Phase Technology, involving the design, manufacture and sale of petroleum analyzers.

His medical predicament is reminiscent of a recent Alberta case involving a young girl the courts ordered to be taken off life support in spite of her parents’ wishes.

The judges in that province endorsed the view that life support should be terminated where medical specialists unanimously believe the patient is without awareness or hope of recovery and invasive treatment provided no potential benefit.

Justice Gropper said the fulcrum in this case was whether Lora had acted in Kenny’s best interests and met her duties and obligations under the Patients Property Act, which empowers her to make decisions about his care.

“I find that Lora’s decision to remove Kenny’s feeding and fluid tubes … has already been found to be a medically appropriate decision,” the justice said.

“There is no medical opinion in the evidence that points to a contrary conclusion.”

Lora’s lawyers argued that the legal action was a result of the family’s inability to say goodbye to a much-loved member and their abiding desire for a miracle.

Ng suffered traumatic brain injuries during a Sept. 9, 2005 car crash in Washington state that killed his eldest son, injured his two other children and left his wife badly hurt. Since then, he has been minimally conscious.

The court was told Lora, who had been married to him for 12 years at the time, initially believed he would recover.

Over time, however, she has come to agree with doctors who have said from the beginning that he would not improve. She decided this summer to have the tubes removed.

The family insisted that letting Ng die would be wrong given the startling work in neuro-imaging by Dr. Owen, which proves some patients suffering from locked-in syndrome, or who have lain in vegetative states for years, may be more conscious than we realize.

But Justice Gropper said the idea that that breakthrough holds out hope for Ng was more wishful thinking than realistic.

“The petitioners put great emphasis on Dr. Owen’s research and report,” she wrote. “They maintain his studies are a ray of hope for Kenny. With respect, Dr. Owen’s findings do not contradict the opinions of (Kenny’s doctors) … While this scientific development might hold some promising benefits in the future, at present, it is a speculative conclusion at best.”

Trevor Todd, one of the lawyers for the family, said an appeal with an accompanying application for a stay of the judge’s orders, is under consideration.

Joint Tenant Interest Set Aside For Unjust Enrichment

 

Joint Tenant Interest Set Aside for Unjust Enrichment Reasons

Just because a person is registered as a joint tenant in a parcel of property does not mean that the person actually has a beneficial Interest in and to the property, and joint tenancies can be set aside on such a basis.

The BC case of Borkenhagen v Kessler 2012 BCSC 467 is just such a situation. A married couple as plaintiffs made an agreement with their defendant aunt that they would purchase a condo and allow the aunt to reside as a tenant for as long as she wished or was able.

The aunt was registered on title as a joint tenant on title, along with the plaintiffs, in order to satisfy the strata corporation that she was an “owner and not renter.”

The arrangent was satisfactory for many years until the aunt questioned how much longer she had to pay, and asserted a one third interest in the joint tenancy.

The couple brought court action for a declaration that they were the sole owners of the condo, and succeeded on two grounds: One, that it was a resulting trust and the aunt could not rebut the presumption that she held the property in trust as she had not paid for it.

In addition, the parties were not domestic partners and they had no common intention that each of the parties would make a common contribution to the purchase price, and Two, that

disinherited.com cautions families to be very careful about such “loose” arrangements as it would appear that the parties, while well intentioned, seemed to have very different notions as to what the legal situation was to be, with the aunt thinking that since she was registered on title, then all her “rent cheques” should be attributed towards the purchase price A simple requirement of the strata corporation that only ” owners” and not renters could live there undoubtedly contributed to the confusion Both parties should have had independent legal advisors I before the condo was purchased.

Doctors Speak a Different Language

Doctors Speak a Different Language

I had the benefit of recently hearing prominent geriatric psychiatrist Dr. Donnelly.

She discussed various aspects of testing for mental capacity and in particular when dealing with the legal profession in seeking a medical opinion about same.

Mental capacity is  a legal test – did the person have sufficient mental capacity when he or she signed the will or the transfer of land etc.?

To her credit Dr. Donnelly instructed the attending lawyers that they should specify in detail exactly what they want the doctor  to tell them and in response to specific questions pose the physician.

For example, she mentioned that most lawyers do not even instruct the doctor  as to the legal test for mental capacity, when most doctors, especially family physicians, really have no training or experience in understanding the legal concept, and very little training if any in testing for capacity.

If possible, it is highly preferable that the testing for mental capacity be performed by a geriatric psychiatrist in the case of the elderly, or a psychiatrist in the case of non-geriatrics

I will share aspects of her presentation upon my receipt of them in the future.

I pointed out to her and the audience that the problem is even worse than she described, in that lawyers and doctors do not even use the same words to have the same meaning.

I pointed out for example that the word acute, to a medical doctor means a sudden onset while two lawyers in the general public it means severe.

Similarly alert means awake in medical terms but to others is generally considered to be much more almost to the point of being smart

Lucid to a doctor means that the patient is oriented times three, (he or she knows who they are, where they are, and the date),  whereas to the general public the word lucid again usually means much more.

I also pointed out that lawyers deal with the concept of the test in civil proceedings being on the balance of probabilities, “is it more likely than not.”?

Doctors do not understand this concept unless they are instructed by the lawyers, as to the appropriate legal test to apply when providing their medical opinion.

Dr. Donnelly agreed that doctors are typically trained and think  as scientists who use the scientific method.

They do not  understand the legal concept of causation, or  the thin skull rule in tort law, or any other legal concepts, without the lawyer explaining the  concept to the doctor.

In my almost 40 years of experience with dealing with the medical profession I can categorically state that there is often tension.

That tension can often be broken by the lawyer phoning  the doctor, making it clear that the doctor will be paid for his or her time, and asking to speak with the doctor, in person if possible, in a quiet setting after hours.

The lawyer should then review the file and the opinion sought, in person before it is written, and educate the doctor in the legal concepts and test to be applied when considering the preparation of the medical opinion.

– See more at: http://www.disinherited.com/blog/doctors-speak-different-language#sthash.6NwDhiis.dpuf

Mental State Medical Examinations

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

What Constitutes Testamentary Capacity?

What Constitutes Testamentary Capacity?

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

  1. 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)
  2. 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)
  3. 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.
  4. 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)
  5. 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

Ending Life Support is a very topical and controversial topic in recent years and on a continual basis.

Life SupportThe 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

The Medical Profession Is Woefully Unprepared to Assess Mental Capacity

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.

Court Orders Life Support Of Infant Be Withdrawn

Life support withdrawn for infantAn 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

Severance of Joint Tenancy By Power of Attorney Upheld

Severance of Joint Tenancy by aseverance, the movie Power of Attorney Upheld

 

Houston v Houston Estate 2012 BCCA 300 upheld the severance of the joint tenancy through the use of a power of attorney despite the fact that the attorney.

stood to gain financially in a subsequent wills variation action which he only had by reason of the severance of the joint tenancy, thus creating a tenancy in

common of half the house, which formed the only asset in the estate of the deceased.

disinherited.com finds the decision somewhat surprising and opines that this is because of two reasons:

A. The findings of fact by the trial judge which will be set out here after;

B. The fact that the principal of the power of attorney agency agreement was mentally competent and the court found that the attorney was carrying out his estate wishes.

disinherited.com further opines that had the deceased not been competent, that the court would have decided the decision differently and upheld the joint tenancy.

 

A Central Issue Was the Use of the Power of Attorney a Breach of Fiduciary Duty?

 

“The trial judge noted the following passage from Egli v. Egli 2004 BCSC 529, in which Madam Justice Garson (then of that court) had stated:

It is the attorney’s duty to use the power only for the benefit of the donor and not for the attorney’s own profit, benefit or advantage {Chapman). The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor (Robertson, Mental Disability and the Law in Canada at 183). I am not aware of any authority that detracts from this principle in circumstances where the benefit is conferred on family members.”

 

[54]  ”  There can be no doubt that a fiduciary who engages in ‘self-dealing’ or who receives a secret benefit or profit from a transaction carried out on the donor’s behalf, is accountable to the donor for such profit: see generally Fridman, supra, at 106-110. An obvious exception exists, however, where the donor consents to or authorizes the attorney’s acting as he or she has. This concept is encapsulated in s. 27 of the Property Law Act, which was quoted by the trial judge at para. 70 of her reasons:

Attorney cannot sell to himself or herself

27       A sale, transfer or charge to or in favour of himself or herself by an attorney

named in a power of attorney, of land owned by the principal and purporting to be made under the power of attorney, is not valid unless the power of attorney expressly authorizes it or the principal ratifies it.[Emphasis added.]

[55]    The trial judge found, correctly, that James Houston did not carry out a transfer “to or in favour of himself within the meaning of these provisions. The plaintiff argues, however, that by severing the tenancy, he “created an estate” for his father, since by the time he died, Dr. Houston Sr.’s only asset was the interest in the condominium. Title having been severed, that interest passed to his estate when he died. As the trial judge noted at para. 71 of her reasons, James Houston and his siblings have commenced an action under the Wills Variation Act- which they could not have done except for the severance. Obviously, they might benefit from James’ exercise of the authority granted to him.

[56]    The question of whether James Houston had his father’s authorization or consent to “create an estate” for him was again one of fact. In this case, the question was a delicate one that depended greatly on the credibility of James Houston and his sister, who also participated in the critical conversation with their father. The brother and sister were extensively examined and cross-examined about that conversation, and the trial judge realized its importance in the context of the law applicable to fiduciaries. She found that although the father had not specifically directed his son to use the power of attorney to sever the joint tenancy, he had “clearly instructed Dr. James Houston to use the power of attorney so that his estate would be preserved and his ultimate wishes fulfilled.” (Para. 89.) The trial judge has not been shown to have been wrong in reaching this conclusion or in finding that James acted so that his father’s wishes would be respected. The trial judge also accepted that before he made the appointment for his father to see Mr. Humphries in the fall of 2008, James had told Dr. Houston Sr. that if he, the father, was happy to “let things go the way they [were] going”, the Houston children were “happy with that. We were all well enough off.” But, he said, “Dad wasn’t. He said he [had] always been a man of fairness. He wanted things to go six ways to the family.” To be blunt, the fear of what Ms. Fowler and Mrs. Houston would do after Dr. Houston Sr.’s death put this plan into serious jeopardy.”

Second Medical Examination of Elderly Man Refused

Second Medical Examination of Ederly Man Refused

The BC Court of Appeal dismissed an application that an elderly man undergo a second mental assessment examination

On February 12, 2012 I blogged the Supreme Court  decision in Temoin v Martin 2011 BCSC 1727

The Court of Appeal in reasons for judgment cited at  2012 BCCA 250, dismissed the appeal.

The application concerned the mental incompetency of an 87-year-old wealthy businessman.

The businessman’s daughter commenced an incompetence proceeding stemming from her discontent with changes made by her father to his will and estate plan.

She obtained the medical opinion of one geriatric psychiatrist who diagnosed her father with a mild uncomplicated dementia..

He considered the businessman to be incompetent.

It is a requirement for an application of comitteeship under the Patient’s Property Act that there be two medical examinations and medical opinions before the court

The petitioner brought an application that her father be ordered to attend two medical examinations on certain terms and conditions.

As such, she had not filed the requisite two medical affidavits attesting to her father’s incapacity to manage himself or his affairs.

The Supreme  court dismissed the application but held that it did have the inherent  jurisdiction to make the order sought, but this was not a case where that jurisdiction should be exercised.

The Supreme court noted that it had been well settled law for many years that the court cannot order a medical examination under the Patient’s Property act unless two

medical affidavits, stating that the proposed patient is incapable of managing himself for his affairs, because of mental infirmity, have been produced.

The court does have inherent jurisdiction, however but it can only be exercised where legislation has not “occupied the field”, and where the exercise would not conflict with the governing statute.

The court noted that there had been a legislative gap in that one medical affidavit had been produced, but there was also in addition lay evidence attesting to the proposed patient’s memory and cognitive problems.

The court was of the opinion however that the evidence was lacking and in particular, there  was little evidence that he was incapable of managing his affairs, or that anyone was taking financial advantage of him.

The Court of Appeal commented and agreed, that with regard to the particular case, the judge found an order compelling medical examinations of the elderly man for the purpose of section 3 of the Patient’s Property act, could only be made if there is a prima facie  proof of incompetence, and a compelling need for protection.

The Appeal Court held that the Supreme Court judge did not err in requiring prima face the evidence of incompetence and the compelling need for protection before she would exercise her parens patriae jurisdiction to make the order sought.

Finally the court held, the trial judge did not err in her assessment of the evidence, in particular in finding it was insufficient to establish prima facie  incompetence or that the elderly man was in need of protection.