Midterm Case Briefs Flashcards
B.M. v. K.S., 2015 NSSC 105
JML indicated in her advanced directive and power of attorney that she wanted to live in her own home with care regardless of her physical and mental condition.
JML subsequently became incapable and the annual home care cost rose to approximately $250,000.
JML’s son, who was her substitute decision maker, believed that it was no longer in his mother’s best interests to continue living at home given her quality of life and medical condition. He believed that she should be moved to a long-term care home and he applied to the Court for direction.
JML’s trust account contained $493,000 at that time and would be rapidly depleted.
In dismissing the application, the Court indicated that JML’s expressed wish in her advanced directive and power of attorney was clear and had to be respected.
Consequently, it was not appropriate for the Court to consider whether remaining in her home was in JML’s best interest.
Battrum v. British Columbia (2009), 70 C.C.L.T. (3d) 164 (B.C.S.C.)
The plaintiff, who fell off a horse and injured her shoulder, called 911 for assistance.
She was first attended by firefighters and then by the defendant paramedic.
The defendant touched the plaintiff in the course of taking her vital signs and stabilizing her shoulder in order to transport her to the hospital.
The plaintiff alleged that the defendant was “abrupt and unsympathetic” and “behaved like a lout.” She sued the defendant in battery claiming, among other things, that he had no consent to touch her.
The judge noted that the plaintiff expressly sought first aid and wanted to be taken to the hospital. The defendant’s conduct in touching the plaintiff was within the reasonable scope of the treatment that the plaintiff had sought and to which she implicitly consented.
Consequently, her battery action was dismissed.
Barbulov v. Cirone, [2009] O.J. No. 1439 (S.C.J.)
The Consent and Capacity Board erred in relying on the treatment directions in the patient’s power of attorney (POA).
The patient had gone to his lawyer to sign a will but had not provided prior instructions about a POA.
The patient, who had a limited command of English, signed the POA without reading it. The patient’s son read the document to him in English and they discussed its general nature.
However, the specifics of the treatment directions were never discussed. The Court concluded that the POA could not be relied upon as expressing the patient’s treatment wishes, because there was evidence that he had not understood its legal meaning.
C. v. Wren (1986), 35 D.L.R. (4th) 419 (Alta. C.A.)
C, a pregnant 16-year-old girl, abruptly left home and made arrangements for an abortion.
Her parents, who were morally opposed to the abortion, sought to prevent the procedure by challenging C’s capacity to consent.
The Court sympathized with the parents and their daughter in this painful dispute. Nonetheless, the legal issue was clear – could this 16-year-old girl give a valid consent to a therapeutic abortion?
The Court concluded that C understood the nature of the procedure and its risks. Consequently, she was competent to give a valid consent and her parents’ wishes were not relevant.
The Court stated that the parental right to make treatment decisions for a child ends if and when the child achieves a sufficient understanding and intelligence to fully comprehend the proposed treatment.
C.M.G. v. D.W.S., 2015 ONSC 2201
S.G.-S.’s parents had a joint custody agreement which provided that S.G.-S. would not be vaccinated before the age of 12, at which time she could make her own decision. The agreement also required the parents to consult with each other on all major decisions but gave final decision-making authority to S.G.-S.’s mother.
When the mother indicated that she was taking S.G.-S. to Germany on a holiday without having her vaccinated, the father sought a court order altering the joint custody agreement to give him sole authority in all medical decisions.
The judge stated that the fact that the parents had a joint custody agreement and that it was incorporated into a court order on consent were factors to be considered but were not determinative. The judge ruled that the child’s best interests were paramount.
The mother, who believed in homeopathic medicine and vehemently opposed vaccinating S.G.-S., submitted a detailed affidavit and called two “expert” witnesses. In rejecting this evidence, the judge stated that “I find that the mother and her supporting witnesses are locked in a never-ending spiral of blind acceptance of statements by individuals who claim to be experts in the field in which they are not. … Most of the supporting research offered by the mother and her supporters is not valid and does not consider objective facts, research and literature that are thorough and peer reviewed.”
Relying on the evidence of a leading Canadian expert on infectious diseases and immunization, the judge concluded that vaccination was in S.G.-S.’s best interests.
The judge granted the father’s motion for sole authority to make medical decisions on S.G.-S.’s behalf and ordered that S.G.-S. be vaccinated prior to being taken to Germany.
Cuthbertson v. Rasouli, 2013 SCC 53
Mr. Rasouli’s physicians at Sunnybrook Health Centre wanted to take him off a respirator and provide only palliative care because he was in a persistent vegetative state with no prospect of regaining conscious-ness. While life support was prolonging Rasouli’s life, it was intrusive, possibly harmful and of no medical benefit.
Rasouli’s wife, his SDM, refused to agree based on Rasouli’s religious beliefs and her view that he was not in a persistent vegetative state. She sought an injunction to prevent the withdrawal of life support without her consent. The physicians argued that they did not need her consent, as the withdrawal of life support did not constitute treatment. The trial judge granted the injunction and the hospital appealed.
The Court of Appeal stated that physicians do not generally require consent to withhold unnecessary or futile treatment, noting that patients cannot demand whatever treatment they wish. However, the Court held that withdrawing life support and immediately providing palliative care constituted a “treatment package” under the HCCA, for which the patient’s consent, or that of his or her SDM, was required. If the hospital believed that Rasouli’s wife was refusing consent in violation of s. 21(1) of HCCA, it could apply to the CCB to overturn her refusal.
The Court acknowledged that the current law was not ideal. For example, if the SDM was acting on the patient’s prior expressed capable wish, there would be no violation of s. 21(1). In this event, the CCB’s hands would be tied and the physicians would be required to continue life support despite their view that doing so was contrary to Rasouli’s best interests. The hospital appealed.
The majority (five justices) of the Supreme Court of Canada also broadly interpreted the word “treatment” and upheld the Court of Appeal’s decision that consent was required to withdraw life support. The majority stated that the HCCA was a “carefully tailored statute” that appropriately balanced the parties’ competing interests.
The majority brushed aside the physicians’ arguments that they would be put in the untenable ethical position of having to continue futile care that was contrary to Rasouli’s best interests. In response, the majority stated that there were several “practical solutions” to “avert any ethical conflict.” For example, it was suggested that the hospital could: challenge the decision of Rasouli’s wife as not being in his “best interests” contrary to s. 21(2) of the HCCA; transfer Rasouli to another hospital; alter the staffing arrangements for Rasouli’s care; or find physicians who would not be ethically opposed to providing Rasouli with futile treatment. Unfortunately, the majority did not consider whether these were viable suggestions or whether they would address the physicians’ concerns.
The two dissenting justices forcefully argued that the common law, and not the HCCA, governs disputes about withholding and withdrawing life support. The justices stated that: the HCCA was never designed to resolve issues related to medically futile treatment; the definition of “treatment” in the Act does not include withholding and withdrawing treatment; and withdrawing treatment and providing palliative care are separate acts. Neither the HCCA, nor the common law require a patient’s consent to withhold or withdraw treatment. Such an extension of patient autonomy would permit a patient to insist on receiving futile care to the detriment of the physician’s legal, ethical and professional duties. The dissenting justices noted that even when the courts had intervened to prevent a doctor from unilaterally withdrawing life support, the courts did not conclude that patient consent was necessary. Rather, the courts granted an injunction pending trial on the substantive issues. In other cases, the courts have expressly stated that consent is not required for withdrawing treatment. In concluding, the dissenting judges stated that the continuation of life is not an absolute value and physicians should not be required to breach the accepted standards of care and the ethical principles of their profession.
EL (Re), 2011 CanLII 50116 (ON CCB)
Related to Mental Health Act
Among other things, this case involved a review of EL’s CTO. EL, who suffered from schizophrenia and a mild developmental disability, had a propensity (tendency) to expose himself and aggressively make inappropriate sexual comments particularly to women. He had a history of poor medication and treatment compliance which resulted in relapses, lengthy psychiatric hospitalizations and multiple CTOs.
He had frequent arrests and was on three probation orders at the time of the hearing. EL’s psychiatrist testified that if EL did not receive continuing care and supervision in the community he was likely to be violent and cause serious bodily harm to others or himself. He had in the past kicked in a door at a local store, been convicted of criminal harassment for following and intimidating a woman, and allegedly attacked a small girl but was not charged in that incident. The other witnesses testified that EL was a verbally provocative nuisance rather than a dangerous predatory person.
Surprisingly, the Board stated that there was no evidence that EL would likely or probably “cause serious, alarming or critical bodily harm to anyone” and revoked the CTO.
Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603
The mother of an 11-year-old girl withdrew her from chemotherapy at the Hamilton Health Sciences Centre to pursue a so-called “alternative cancer treatment” in Florida. It was accepted that the girl was not capable of making her own medical decisions and that her mother was her SDM.
The girl’s paediatric oncologists testified that she had a 90% to 95% chance of being cured with continued chemotherapy. Moreover, they were not aware of any child surviving this type of leukemia without chemotherapy.
When the Children’s Aid Society (CAS) refused to intervene, the Centre applied for a protection order under the Child and Family Services Act, declaring the girl to be a child in need of protection and requiring the Society to bring her to a place of safety. The term “child in need of protection” in the Act includes situations in which parents or guardians refuse consent to needed medical treatment for their child.
The Court refused to issue the requested order. It stated that the girl was not in need of protection because her mother was “a caring loving parent” and was acting in accordance with her culture and beliefs as a Six Nations Band member. The Court stated that the mother’s decision was protected under s. 35(1) of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.
The decision raised numerous troubling issues. For example, the alternative cancer treatment in Florida was not based on traditional Aboriginal beliefs and there was no basis for believing that it would be of any medical or other benefit. Second, the Supreme Court of Canada unanimously held in E.(Mrs.) v. Eve, [1986] 2 S.C.R. 388 and other cases, that treatment decisions must be made exclusively in an incapable patient’s best interests and that the interests of others are not to be considered. Consequently, the mother’s cultural heritage and beliefs were irrelevant in making treatment decisions for the child. Third, the finding that the mother was a “caring loving parent” did not alter the fact that her continued refusal to consent to chemotherapy for her daughter would almost certainly result in the child’s preventable death.
When her daughter’s cancer returned, the mother decided to resume chemotherapy in “conjunction” with traditional native medicine. In an attempt to clarify the initial ruling, the parties made a joint submission recognizing that the child’s best interests were paramount and that the aboriginal right to use traditional medicine was a factor that had to be considered in making that determination. The parties also agreed that given the collaborative approach, the daughter was not in need of protection. The Court adopted the joint submission as an addendum to the original decision. Hamilton Health Sciences Corp. v. D.H., 2015 ONCJ 229.
Haugan v. Whelan (2003), 64 O.R. (3d) 713 (S.C.J.)
Haugan was on long-acting medication that would delay symptoms for two months after it was last taken. When Dr. Whelan put Haugan on a CTO, Haugan challenged the order because he did not meet the criteria for a CTO at that time.
Even though Haugan would not become symptomatic until two months after he was released and had last taken the medication, the CCB held that he suffered from a mental disorder that “would likely result in serious impairment of the person.”
In essence, the CCB concluded that a CTO could be ordered if the patient was on “a slippery slope towards meeting the criteria.” Haugan appealed the CCB’s decision to the Ontario Superior Court. It quashed the CTO, emphasizing that patients must meet all the criteria for a CTO when it is issued.
I.H.V. Estate (Re) (2008), 90 Alta. L.R. (4th) 322 (Q.B.)
S.C. applied to become the court-appointed guardian of her 68-year-old mother, who had terminal cancer and was attached to a ventilator. S.C. also sought an injunction requiring the health authorities not to withdraw the ventilator, despite the doctors’ view that continued life support was hopeless and unnecessarily cruel. S.C. believed that her mother wished to fight for longer life.
The Court appointed the daughter as her mother’s guardian but refused to grant the injunction, stating that it was inappropriate for the Court to require treatment contrary to the doctors’ unanimous view.
However, the health authorities were directed not to disconnect the ventilator until S.C. was given the medical records so that she could seek an independent medical opinion. The health authorities were also required to give S.C. 72 hours’ notice before disconnecting the ventilator.
Janzen v. Janzen, [2002] O.J. No. 450 (S.C.J.)
E.J., who was only 43, fell into a persistent vegetative state after suffering a sudden bout of severe angioedema. Following several weeks of tests and observations, the doctors advised E.J.’s wife and family that there was no prospect of recovery. They recommended that life support be removed and that E.J. be allowed to die peacefully.
While E.J.’s wife of 12 years wanted to follow the doctors’ recommendations, E.J.’s sister wanted to temporarily delay the decision in the hope that his condition might improve. When E.J.’s sister applied to the Court to be appointed his temporary guardian of personal care for 45 days, E.J.’s wife submitted a counter application.
While acknowledging that both parties had E.J.’s best interests at heart, the Court concluded that the wife’s guardianship plan was more likely to achieve that goal. In interpreting the “best interests” test under s. 21(2) of the HCCA, the Court defined the term “well-being” to include the patient’s quality of life.
In granting the wife’s application, the Court noted that: her plan was in accord with E.J.’s previously expressed wish not to have his life artificially prolonged if there was no prospect of recovery; there was no evidence that medical intervention would ever improve E.J.’s condition or quality of life; and her approach would be less intrusive and thus more comfortable for E.J.
JM (Re), 2011 CanLII 7955 (Ont. CCB)
JM, a 12-month-old, suffered from a progressive neurodegenerative disease that left him in a persistent vegetative state and dependent on life support. JM’s doctors agreed that there was no prospect of recovery and no treatment for his worsening condition. The doctors sought the consent of JM’s parents to remove JM’s endotracheal tube and place a DNR order on his chart, which would likely result in JM’s imminent death.
JM’s parents refused. Their daughter had a similar condition and had been given a tracheostomy, which allowed her to be taken home to die. JM’s parents wanted the same procedure for their son, so that he too could die at home. The evidence indicated that a tracheostomy would likely prolong JM’s life, but involved risks and discomfort without improving his quality of life.
The doctors applied to the CCB, alleging that the parents’ refusal to consent was not in JM’s best interests, contrary to the principles governing substitute consent under s. 21(2) of the HCCA. The CCB agreed, emphasizing that the best interests test required consideration of the patient’s quality of life and dignity. The CCB stated:
“After three months in hospital hooked up to tubes and machines, after suffering from the invasion of personal privacy, after suffering human indignities, and with the exacerbated difficulties that would arise because of a tracheostomy, it was time for the parents to say “enough.” In our minds, there was no disputing the clear, cogent and compelling evidence … JM should be allowed to die with dignity and that the treatment for JM, in his best interests, would be removal of the endotracheal tube without replacement, a DNR order and palliative care.”
The CCB ordered the parents to consent within two days, failing which they would be found to have breached s. 21(2) of the HCCA.
Montaron v. Wagner (1988), 43 C.C.L.T. 233 (Alta. Q.B.), aff’d. (1989), 70 Alta. L.R. (2d) 86 (C.A.)
The plaintiff, who had obvious difficulties understanding English, signed a form that purported to provide his consent to a procedure that was far more radical than that to which he had originally consented. Since no attempt had been made to ensure that he understood the procedure, the Court held that the consent form was invalid.
Neto v. Klukach (2004), 12 Admin. L.R. (4th) 101 (Ont. S.C.J.)
Ms. Neto was diagnosed in her teens as having bipolar affective disorder and was on Lithium for many years. During her last hospital admission, Ms. Neto objected to the anti-psychotic drugs that she was prescribed. Her doctor found her to be incapable of making treatment decisions because she refused to acknowledge that she had bipolar disorder or was currently manic, and because of her delusional beliefs about Lithium and her other medications. Ms. Neto challenged the doctor’s decision to the Consent and Capacity Board (CCB).
The Board upheld the doctor’s decision. While it held that Ms. Neto was able to understand the information relevant to her treatment, a majority of the Board found that she did not have the ability to appreciate the reasonably foreseeable consequences of consenting or refusing consent. Ms. Neto appealed the Board’s decision.
The Court considered three factors in determining whether a patient has the ability to appreciate the consequences of his or her treatment decisions. First, while patients need not admit that they are mentally ill, they must be able to acknowledge that they are “affected by manifestations” of what others recognize as a mental illness.
The Court found that Neto, while not describing herself as mentally ill, was able to acknowledge that she was “different” and that Lithium stabilized her symptoms.
Second, patients must be able to assess how the proposed treatment and its alternatives, including no treatment, could affect their quality of life. The Court found that Neto could assess the impact of her decision, which was based on her previous negative experiences with the drugs.
Third, the patient’s decision must not be “substantially” based on delusional thinking. While Neto had certain delusional thoughts, such as thinking that she was the Queen of Portugal, this was not the basis for her objections to the medication. Moreover, even after Neto had been given anti-psychotic medication that made her outwardly calmer and more coherent, she re-iterated her opposition to the medication.
Consequently, the Court concluded that Neto had the ability to appreciate the consequences of her decision and granted her appeal.
Norberg v. Wynrib (1992), 12 C.C.L.T. (2d) 1 (S.C.C.)
An elderly doctor offered to continue an addicted patient’s prescription for narcotics if she submitted to his sexual advances. The young woman reluctantly agreed to the arrangement only after she failed to secure another source of supply. After recovering from her drug addiction, the woman sued the doctor for battery, negligence and breach of fiduciary duty. The Supreme Court of Canada unanimously upheld the woman’s claim but on three different bases, and awarded $20,000 in compensatory damages and $10,000 in punitive damages.
The majority of the Court upheld her claim in battery, stating that it was impossible for the woman to “meaningfully consent” given the parties’ unequal power and the exploitive relationship. One justice concluded that the woman’s consent to the sexual advances was not vitiated and that therefore the doctor could not be held liable in battery.
However, the justice held the doctor liable in negligence for breaching the standard of care by facilitating her continued addiction, rather than attempting to treat it. The two remaining justices based the doctor’s liability on an independent action for breach of his fiduciary duty to the patient. In their view, the wrong in this case was the doctor’s exploitation of his relationship of trust with the patient to gratify his sexual desires at her expense.
