Health Care Law Cases

Health Care Law Cases B.M. v. K.S., 2015 NSSC 105 Facts - Mrs. L signed valid person direction under NS Act naming her son as he delegate - Expressed the wish to live in her house the rest of her life with appropriate care - Her son wanted to move her to a nursing home, attorney objected as it was contrary to her wishes in her personal directive Decision - A person’s express wish as stated in a valid personal directive – and not what is in her best interests – carries the greatest weight in the first decision by a court considering the NS Personal Directives Act. Battrum v. British Columbia (2009), 70 C.C.L.T. (3d) 164 (B.C.S.C.) Facts - Plaintiff fell of horse, called 911, attended to by firefighters and a paramedic (the defendant) - Plaintiff sued defendant for battery, claiming he had no consent to touch her Decision - Plaintiff had expressly sought first aid, wanted to be taken to hospital - Defendant’s conduct in touching plaintiff was within reasonable scope of treatment the plaintiff had sought and implicitly consented - Battery action dismissed Barbulov v. Cirone, [2009] O.J. No. 1439 (S.C.J.) Facts - 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. Decision - The Consent and Capacity Board erred in relying on the treatment directions in the patient’s power of attorney (POA). - 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.) Facts: - Girl wants abortion - Parents say consent has to come from them Decision - Mature minor can consent - She was a normal, intelligent 16 year old girl - Sufficient understanding to make up her own mind free of parental restraint - 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 Facts - Parents with joint custody agreement – said that the child would not be vaccinated until age 12 when she could make own decision - Parents had to consult on major decisions but final authority with mother - Mother was going to take daughter on vacation without getting her vaccinated - Father filed court order to have sole authority in medical decisions - Judge ruled that child’s best interests were paramount Decision - Judge concluded that vaccination was in child’s best interests - Gave father sole authority to make medical decisions Carter v Canada, 2015 SCC 5 - SCC held that the criminal laws prohibiting assistance in dying limited the rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms in a manner that was not demonstrably justified under section 1 of the Charter. Cuthbertson v. Rasouli, 2013 SCC 53 Facts - Mr. Rasouli’s physicians wanted to take him off life support as he was in vegetative state - His wife and Substitute Decision Maker refused and sought injunction to prevent withdrawing life support without her permission - 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. - Court of Appeal said that SDM consent was required, hospital appealed again Decision - The majority (five justices) of the Supreme Court of Canada upheld the Court of Appeal’s decision that consent was required to withdraw life support o Broadly interpreted the word “treatment” like the COA (providing life support then providing palliative care = treatment package needing consent) - Dissenting judges argued that the common law not HCCA governs disputes about withholding and withdrawing life support o Argued HCCA nor common law require patients consent to withhold or withdraw treatment EL (Re), 2011 CanLII 50116 (ON CCB) - CTO (community treatment order) allows physician to mandate supervised treatment on patient when they are discharged from hospital Facts - Review of patients CTO who suffered from schizophrenia and mild developmental disability o Would expose himself and make inappropriate sexual comments to women o History of poor medication and treatment compliance o Frequent arrests, on parole - His psychiatrist argued that if he didn’t continue supervised treatment he would likely be violent, cause harm to others or himself - Witnesses testified that he was provocative nuisance not dangerous predatory person Decision - Board stated there was no evidence he would cause harm to anyone

- Revoted CTO Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603 - Mother of 11 year old Indigenous girl withdrew her from chemotherapy to pursue alternative cancer treatment - Mother was her SDM - Oncologist said she had high chance of being cured with chemo - CAS refused to intervene, hospital applied for protection order under Child and Family Services Act - Court refused to issue order – mothers decision protected under s.35(1) of Constitution which recognized and affirms Aboriginal and treaty rights - Decision raised troubling issues o Other cases held 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 o Mothers cultural heritage irrelevant in making treatment decisions for child - Mother resumed chemo once cancer returned - 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 Haugan v. Whelan (2003), 64 O.R. (3d) 713 (S.C.J.) Facts - Haugan on long-acting medication that would delay symptoms for two months after last taken - Doctor Whelan put him on CTO - Haugen challenged CTO because he didn’t meet criteria at the time - CCB hold that CTO could be ordered if patient was on slope towards meeting criteria - Haugen appealed to OSC Decision - Court dismissed CTO – patient must meet all criteria for CTO when its issued I.H.V. Estate (Re) (2008), 90 Alta. L.R. (4th) 322 (Q.B.) Facts - 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 a longer life. Decision - The Court appointed the daughter as her mother’s guardian - Refused to grant the injunction – o Inappropriate for the Court to require treatment contrary to the doctors’ unanimous view. - Health authorities were directed not to disconnect the ventilator until S.C. was given the medical records and 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.) Facts - E.J. (43) fell into vegetative state, doctors advised family that there was no prospect of recovery - Recommended life support be withdrawn - Sister wanted to delay decision, applied to become temporary guardian of personal care - Wife submitted counter application Decision - Court concluded that wife’s guardianship plan was most likely to achieve E.J’s best interests - Interpretation of best interests o Defined “well being” to include patients quality of life JM (Re), 2011 CanLII 7955 (Ont. CCB) Facts - JM, 12 months old, vegetative state dependent on life support - Doctors – no prospect of recovery, no treatment, sought consent of parents to take him on life support and place DNR order (likely result in his death) - Parents refused, wanted procedure so he could die at home, evidence that procedure would prolong JMs life but risks that wouldn’t improve QoL - Doctors applied to CCB – refusal to consent not in best interests and contrary to s.21 of HCCA (substitute consent) Decision - CCB agreed with doctors - Ordered parents to provide consent within 2 days, if not would breach HCAA 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.) Facts - Ms. Neto diagnosed in teens with bipolar affective disorder, was taking Lithium for years - During last hospital admission, refused to take anti-psychotic drugs - Doctor found her incapable of making treatment decisions - Mrs. Neto challenged decision to CCB (Consent and Capacity Board) - Board upheld doctors decision o Found she was able to understand info relevant to treatment but did not have the ability to appreciate the reasonably foreseeable consequences of consenting or refusing consent - Mrs. Neto appealed Board’s decision Decision - Court considered 3 factors in determining whether a patient has the ability to appreciate the consequences of his or her treatment decisions o 1) Patients must be able to acknowledge that they are “affected by manifestations” of what others recognize as a mental illness - need not admit that they are mentally ill  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.