Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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 When a person dies, those left behind are tasked with the challenge of dividing and distributing his or her property.  Disputes often erupt about how to split this property, and the answers usually lie in a will or statute setting out to whom the property is to go.  It is only in very rare circumstances that the discussion turns to whether certain items count as property.  The issue becomes particularly complicated when the putative property consists of human reproductive materials.

In J.C.M. v. A.N.A., the Supreme Court of British Columbia recently dealt with such an issue in the context of a separation agreement.  The couple, both women, had obtained sperm from an anonymous donor through an American company.  Each spouse had given birth to one of their two children using the donated gametes, so that their children were biologically related to each other.  Several years later, the couple separated.  The separation agreement divided all joint property of the relationship.  At the time of separation, they did not turn their minds to the remaining samples of sperm then stored at a facility in Vancouver.  Several years later, J.C.M. entered a new relationship and wished to use the remaining samples to conceive so that their child would be biologically related to the two children from her prior relationship.  A.N.A. wanted the vials destroyed and refused to consent to their release. 

Faced with the difficult decision, the court had to consider whether the vials were "property", such that they fell under the terms of the separation agreement.  There is a longstanding common law rule that parts of the human body are not property.  The court looked closely at an American case, Hecht, which dealt with whether or not a deceased testator could bequeath gametes to his girlfriend by way of his will.  The American courts declined to decide whether human gametes were property generally, deciding only that they were property for the limited purpose of the applicable legislative provisions.  At one stage, it was decided that 20% of the sperm vials belonged to Ms. Hecht based on a settlement agreement pertaining to the testator's will between herself and his existing children.  This was overturned on appeal, wherein the court found that, although the vials were the testator's property for the purpose of wills legislation and available for Ms. Hecht's use, they were not subject to division through an agreement. 

Weighing Hecht and several other American and Canadian cases, the B.C. court held that, in this context, the vials were property and therefore were to be divided as such pursuant to the terms of the separation agreement.  Important to the court's reasoning was that A.N.A. would not have a parental relationship to any children that might be born to J.C.M.

While some other jurisdictions have taken legislative steps to address this question, the issue of whether or not gametes can be dealt with by way of will in Ontario is still evolving.  As reproductive technology continues to advance, new questions will inevitably arise. 

Thanks for reading.

Suzana Popovic-Montag

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Advance directives, in general terms, are ways through which people can indicate ahead of time whether they would wish to accept or refuse certain types of medical treatment in the event that they become incapable of making that decision when that treatment is needed. 

Colloquially, advance directives are usually understood to mean written forms provided by hospitals, wherein individuals give instructions about the sorts of treatment they might like in an end-of-life care scenario if that individual is not able to speak for him or herself.  There is some confusion, in practice, between the more general meaning above, and this second, more colloquial meaning, and how these advance directives might interact with an individual's power of attorney, or the instructions of his or her next of kin. 

The rules regarding consent to medical treatment in Ontario can be found in the Health Care Consent Act (the "HCCA").  In order for treatment to be administered, the patient must give informed consent.  If the patient is incapable of giving that consent, then s. 20 provides that the person's substitute decision maker is responsible for giving or withholding consent.  This section also provides a hierarchy of who the substitute decision maker will be.  At the top of the list is a court-appointed guardian, followed by the patient's attorney for personal care.  Further down the list are the person's spouse, children, parents, siblings, and other relatives.   

The HCCA provides further under s. 21 that the substitute decision maker must make the decision according to certain principles.  If the substitute decision maker knows of a wish that the incapable person expressed while still capable and over the age of 16, then he or she is obligated to give or refuse consent in accordance with that wish.

This is where advance directives come into play.  They do not bind doctors or other medical professionals; rather, they bind substitute decision makers in giving or refusing consent to doctors or medical professionals by providing proof of the incapable individual's prior capable wishes. 

These wishes can be expressed in a power of attorney for personal care as well, either by limiting the types of treatment to which the donee may give or refuse consent, or specifying the grantor's prior capable wishes.  In this sense, a power of attorney itself is a form of advance directive.

If there is no prior capable wish, a substitute decision maker must make a decision in accordance with the incapable person's best interests, a complicated and often contentious determination.  See my recent blog post on the Rasouli matter and Ian Hull's recent blog on the care of Desmond Watson for a few examples of high profile debates over best interests.

As difficult as it may be to decide what care you might want in the event of a loss of capacity, it can be even more difficult for others to decide what care you might want.  Advance directives, either in the form of a power of attorney for personal care or in the form of written directives given in hospital, can be powerful tools to ensure that your wishes are followed.

Suzana Popovic-Montag

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Ian Hull and I recently blogged about informed consent in the context of Ontario's Health Care Consent Act 1996.  As discussed in that blog, contrary to widespread belief, there is no age of consent in Ontario.   Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision.  In short, the concept of maturity is used as the yardstick, rather than chronological age.  As a parent, this concept has intrigued me, so I decided to explore this issue further.  In doing so, I discovered the journey of a captivating boy named Abraham Cherrix.

In 2005, at the age of 15, Abraham Cherrix was diagnosed with Hodgkin lymphoma.   At the time of his diagnosis, Abraham was living with his parents and four younger siblings in rural Virginia.  His first round of chemotherapy, as recommended by the doctors at the Children’s Hospital of the King’s Daughters, rendered him feverish, nauseated and so weakened that Abraham’s father had to carry him from the car into the house.  When doctors raised the subject of a second cycle of chemotherapy, at higher doses and to be supplemented with radiation, Abraham declined, and his parents echoed his refusal.  In lieu of conventional chemo, Abraham and his parents wanted to pursue an alternative herbal treatment (which they had prospected on the internet) called the Hoxsey Method.   Having been banned by the U.S. FDA 45 years earlier, and having been deemed by the American Medical Association to be quackery, the Cherrix family sought treatment with the Hoxsey Method at the Bio-Medical Center in Tijuana, Mexico.

By the summer of 2006, the Accomack County Department of Social Services had determined that Abraham was not receiving ‘appropriate life-saving care’.   Abraham’s parents were charged with medical neglect and officials took joint custody over the teen and ordered him to report to the hospital for chemotherapy treatment.    A last-minute stay was obtained by the family and they regained full custody of their son.   A month later, Abraham’s parents were cleared of the charges of medical neglect, and a consent decree was reached under which Abraham was permitted to pursue the Hoxsey Method as long as he was appropriately monitored by a board-certified oncologist, and by the court, until he turned 18.

Abraham’s case sparked a nationwide controversy.  No one questioned that Abraham’s disease was both serious and life-threatening.  The flame to the kindling: statistics showed that the success rate in curing Hodgkin lymphoma after three rounds of chemo was nearly 90 percent.   The key issue that arose from Abraham’s refusal to subject himself to a second round of chemotherapy was this: When is a minor able to make autonomous decisions about his or her own health care; to consent, or refuse to consent to health care treatment on their own behalf?  Like most states, the age of majority in Virginia is 18.  However, in response to the difficulties faced by the Cherrix family in their wish to pursue an alternative treatment,  the Virginia legislature passed a bill on February 23, 2007 called "Abraham's Law".  This law would allow minors older than 14 to refuse life-prolonging treatments with the agreement of their parents on the condition that such a decision (to refuse medical treatment) is made in good faith and in the child's best interests.

Abraham is 22 years old now and living in the small town of Floyd, in the Blue Ridge Mountains of Virginia.  In January, he learned that the cancer had returned to his left lung.

Jennifer Hartman, guest blogger

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I recently watched a documentary called Hungry for Change about the impacts of dieting on the body. Much of the so-called diet food that we eat, according to the film, causes obesity and other chronic diseases, because while it is designed to look like food, it is often loaded with sugar, has little nutritional value, and causes people to never feel full.

People in most areas of the world may be leading longer lives, but they are also living with higher rates of chronic disease, according to a study reported in the National Post last week. “The biggest contributor to the global health burden isn’t premature [deaths], but chronic diseases, injuries, mental health conditions and all the bone and joint diseases,” according to the study lead, Christopher Murray, the Director of the Institute of Health Metrics and Evaluations at the University of Washington.

One solution to reducing chronic disease, according to the film, is “juicing”, which assists the body to absorb the maximum amount of nutrients from vegetables and fruit. I, for one, am giving the method a try, and have tried a few green concoctions that have tasted about as good as they look.

Holly LeValliant
 

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On Monday, the Supreme Court of Canada heard the difficult case of Hassan Rasouli. 

Mr. Rasouli is a patient at Sunnybrook. He underwent brain surgery in 2010 in order to remove a tumour. Complications following the surgery led to severe brain damage. Mr. Rasouli has been on life support ever since. 

His doctors want to remove the machines keeping him alive, but his wife refuses to give up on him.

The struggle over Mr. Rasouli's fate has made news across the country. His doctors claim that he is in a permanent vegetative state with no hope of recovery. His family claims that he does have some level of consciousness. In support of their claim, they have produced video of him wrapping his fingers around a ball when thrown to him, and claim that he responds to their voices. 

A functional MRI scan has shown that his brain responds when Mr. Rasouli is asked to imagine performing specific tasks. The technology measures blood flow in the brain in real time and has been used as a way to communicate with other unresponsive patients.

The legal question at the heart of the case is whether or not the withdrawal of life support is included in the definition of "treatment" under Ontario's Health Care Consent Act (the "HCCA"). Both the Superior Court and the Court of Appeal have ruled that it does. The Rasouli family and the staff at Sunnybrook currently await the decision of the Supreme Court.

The HCCA governs the rules for obtaining consent for treatment in Ontario. It provides that where a person is incapable of giving consent on his or her own, the person's substitute decision maker (in Mr. Rasouli's case, his wife, Parichehr Salasel) must consent on his or her behalf. 

The definition of "treatment" under the HCCA is highly technical and critical to the scheme of the legislation. If drawn too narrowly, it could give doctors the power to make unilateral decisions about a patient's care. If drawn too broadly, it could give patients the power to demand procedures or medications that are inappropriate or ineffective for their conditions.

Where the incapable person has expressed a wish about a course of treatment while capable, a substitute decision maker is obliged to follow it. Where no such wish has been expressed (as in Mr. Rasouli's case), substitute decision makers are required to make decisions in the best interests of the incapable person. When doctors and substitute decision makers disagree about consent to "treatment" under the HCCA, the statute provides that doctors may challenge the choice of a substitute decision maker at the Consent and Capacity Board, but only if the definition of treatment applies. 

Decisions about withdrawing life support are never simple.  Tragically Mr. Rasouli's situation is not unique. Ian Hull recently blogged about the story of Maria Watson's struggle to keep her husband alive on life support. This case should serve as a reminder to have a Power of Attorney for Personal Care in place to ensure that your loved ones follow your wishes respecting end-of-life care in the unfortunate event that they need to be followed.

Suzana Popovic-Montag

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Bessie Cooper, the woman who was listed as the oldest living person died on Tuesday, December 4, 2012 at the age of 116.  The Georgian woman was declared the world’s oldest person in January 2011.  She subsequently lost the title to another woman, but regained it when that woman died later that year.  The title of world’s oldest person now belongs to 115 year old Dina Manfredini of Johnston, Iowa. 

The oldest known person of all time was Jeanne Calment, a French woman who lived to be 122 years and 164 days old and died in 1997.  She is reported to have consumed olive oil with every meal, ate lots of chocolate and drank port wine.  She saw the Eiffel Tower being built and she once met Vincent Van Gogh over 100 years ago when she was 13 years old.

People who live to 110 are known as super-centenarians.  Although such people are very rare (there are only about 300 – 450 super-centenarians in the world) you can still do your best to achieve longevity.  Here are some (unsurprising) tips on how to increase your life span:

1.    Reduce calorie consumption

A behavioral factor favoring longevity is calorie control.  Eat off small plates and pay attention to fullness cues.  Eat only until you feel about 80% full.  Calorie reduction has been proven to increase the life span of rats in laboratory tests.

2.    Reduce fat consumption

25 to 35% of your total calories should come from fat.  When you do eat fat, choose fish, nuts and foods prepared with olive oil.  The fat sources in these foods are high in monounsaturated and omega-3 fatty acids.  Saturated fat in red meat, full-fat dairy products and butter should be used sparingly, and all trans fat should be avoided.

3.     Avoid processed foods

Stick to whole grains, fruits and vegetables and aim for 1 to 2 cups of raw vegetables each day.

4.    Drink Tea

Tea is a staple for centenarians in Japan and China.  It is not unusual for tea lovers to consume four to six cups a day.  Although there is no scientific consensus on how many cups of tea per day reap more health benefits, intakes above two cups are associated with fewer cognitive declines.  Both black and green tea are good for you, so have a cuppa and enjoy!

In addition to these important dietary habits, you should exercise regularly, maintain a healthy body weight, and don't smoke if you want to maximize your life span. 

May you live to 120!

Moira Visoiu - Click here for more information on Moira Visoiu. 

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As estate practitioners, we usually meet our clients shortly after the death of a loved one. We hear stories about the deaths that precipitate so many of our files, but we rarely, if ever, are confronted with clients who are dying. 

The National’s series “Public Health, Privates Lives” focuses on how the work of doctors and nurses impacts upon their private lives. One fascinating and inspiring episode looks at the life of Dr. Jeff Myers, the head of Palliative Care at Sunnybrook Hospital. 

Dr. Myers’ job involves acting as an advocate for dying patients. He points out that our natural inclination as a society is to heal and fix problems, and that this is in direct contrast to the reality that we all die. He states that his role is not to augment the disease process, but to make the patient as comfortable as possible in their final days. In the clip, he visits with two patients and asks them what is important to them in the last few days or months of their lives. They both answer that they want to be free of pain. He asks one patient to “celebrate the small victories” rather than focus on what cannot be attained. 

The best moment is when Dr. Myers asks us to consider what we would be doing differently– if we had 3 months or if we had 9 months left to live.

It is a short clip and worth watching if only to remind ourselves that we all die and that we should always be asking ourselves if we are spending our time on the things that are most important to us.

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A University of Toronto team of scientists, led by a neurology professor, discovered a gene variant that predicts the time of day that you are most likely to die.

The study was originally conducted to try to find out why older people have difficulty sleeping and to try to identify early signs of Parkinson’s or Alzheimers, but branched off when a connection was found between sleep patterns and the time of death.

Dr. Andrew Lim’s study found a link between sleep patterns and the gene that plays a role in your internal biological clock. Morning people (defined as those who wake up before 7 a.m.) are more likely to have an “adenine nucleotide base”. Late-risers are more likely to have a “guanine nucleotide base.” Those who wake up somewhere in between have both gene variants.

What does this mean for the time of your death? If you are an early riser, you are more likely to die at around 11 a.m. If you are a late riser, you are more likely to die at around 6 p.m.

It seems that the Grim Reaper is a part time job with split shifts.

Holly LeValliant

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End of life decisions are painful and difficult subjects to face. Nobody wants loved ones to suffer needlessly from terminal illness, but nobody wants to let their loved ones go before their time. This deeply personal tension is playing out in the hospital room of Desmond Watson at Oakville-Trafalgar Hospital even as I write.

Desmond and his wife Maria have been married for 71 years. She has kept a bedside vigil over her husband for nearly three years.  He is suffering from progressive dementia from which the hospital medical team believes he has no realistic chance of recovery. He has shown few signs of consciousness for some time. Their story, featured on the front page of the Toronto Star on October 20, 2012, is simultaneously heartbreaking and inspiring.

Conflict developed between Desmond’s family and his medical team about to what sort of measures should be taken to keep him alive. Maria argued that Desmond is a devout Catholic, and had expressed his beliefs that life is sacred and that he would not want his life support withdrawn. The medical team believes that they are only prolonging his suffering. In order to resolve this intractable conflict, they turned to Ontario’s Consent and Capacity Board (“CCB”) in early 2011.

Desmond had executed a Power of Attorney for Personal Care in 2001, which named Maria his substitute decisions maker. The Health Care Consent Act clarifies the principles which a substitute decision maker must follow when making decisions about treatment. S. 21 sets out that “[i]f the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with that wish”. If there is no known applicable wish, or it is impossible to comply with the wish, the decision must be made in the incapable person’s best interests. The Act goes on to provide guidance on how to determine what the incapable person’s best interests are in s. 21(2). One must consider the incapable person’s values and beliefs, the likely effects of treatment or its alternatives, and any wishes they may have expressed while not capable. 

Maria testified that Desmond’s beliefs would mean that he would wish to be kept alive and undergo aggressive treatment. The CCB found that Maria had indeed complied with her obligations under the Act. The CCB decision is available on CanLii (DW (Re), 2011 CanLII 18217 (ON CCB).)

Tragically, the situation the Watsons find themselves in is not unique. As Ontario’s population ages and life-extending technologies improve, these conflicts will only increase in frequency.

To ensure your end-of-life choices are respected, put that wish in writing while capable, ideally in the Power of Attorney itself. 

Ian M. Hull

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Section 10 of Ontario’s Health Care Consent Act 1996 (“the Act”) states that a health practitioner shall not administer a treatment for a person unless the person has given consent (if capable with respect to the treatment) or if the person’s substitute decision maker has given consent on the person’s behalf (if incapable with respect to the treatment). Simple concept at first blush, but a closer examination reveals some complexities, a handful of which we’ll explore below.

What constitutes informed consent?

One of the defining elements of consent to treatment, is that such consent must be “informed”. By framing consent in this way, the Act promotes communication between health practitioners and their patients or clients and encourages patients to exercise their autonomy. According to the Act, a consent to treatment is informed if, before giving it,

a) The person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision and
b) The person received responses to his/her requests for additional information about the treatment.

Information provided by the health practitioner must include the nature of the treatment (diagnosis and recommended treatment), expected benefits, its material risks and side effects, alternative courses of action (if any) and the likely consequences of not having the treatment. If the patient is deemed to be incapable, then the practitioner must identify the substitute decision-maker (s. 20 (1) of the Act sets out a specific hierarchy of individuals/agencies who may give or refuse consent) and go through the same process to obtain consent.

In a tragic case decided in 2009 (upheld on appeal earlier this year) involving catastrophic injury to an infant sustained at birth as a result of an unsuccessful attempt at a forceps-assisted delivery, the trial judge found that the doctor in question failed to obtain informed consent to that procedure. Risks and benefits of the assisted delivery had not been explained to the mother, nor had the option of continuing to push been presented to her for consideration. 

What constitutes informed refusal?

Election to forgo the treatment recommended by the practitioner after the disclosure of the relevant information constitutes “informed refusal”. A competent patient may refuse a treatment, even if it is in their best interests to have the treatment administered. The CMA Code of Ethics (2004) states that the practitioner has a responsibility to respect the right of a patient to reject any medical care recommended.

The Act considers refusal of consent to include withdrawal of consent.

When may the requirement for consent to treatment be waived?

Consent from a capable patient may be waived if the situation is deemed by the health practitioner to be an emergency (i.e. the person is experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly). Similarly, a treatment may be given without consent to an incapable person if there is an emergency and the delay required to obtain consent/refusal on the person’s behalf will prolong the person’s suffering or will put the person at risk of sustaining serious bodily harm. Interestingly, in an emergency situation, in the event that a substitute decision-maker is present and refuses to consent to treatment and is not acting in accordance with prior known wishes or is not acting in the patient’s best interests, then s. 27 of the Act gives the practitioner the power to administer treatment despite the refusal.

What is the age of consent in Ontario?

Contrary to widespread belief, there is no age of consent in Ontario. Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In short, the concept of maturity is used as the yardstick, rather than chronological age. The issue of age of consent has come under the spotlight in recent years as a result of Ontario’s school-based HPV (Human Papillomavirus) immunization program for Grade 8 girls. All of Ontario’s Public Health Units request parental consent before HPV immunization at school-based clinics. That being said, a student who is deemed to be capable with regards to consenting to or refusing the immunization has the right to do so, irrespective of whether their parent signed or did not sign the consent form on their behalf.

In their Consent to Treatment Policy (#4-05), the College of Physicians and Surgeons of Ontario supports this framework by stating that "the capacity to exercise independent judgment for health care decisions varies according to the individual and the complexity of the decision at hand. Physicians must make a determination of capacity to consent for a child just as they would for an adult."

Jennifer Hartman and Ian M. Hull 

Notes:

1. 'Health practitioner' refers to a member of a College under the Regulated Health Professions Act, 1991, a naturopath registered as a drugless therapist under the Drugless Practitioners Act or a member of a category of persons prescribed by the regulations as health practitioners. Examples include (but are not limited to) physicians, dentists, physiotherapists, and nurses.
   
2. As per the HCCA, 'treatment' means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.

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Across Canada, there currently exists an ‘opt-in’ framework for organ donation. Also known as ‘express consent’, this framework is defined by the presence of an explicit mechanism (e.g. signing of a donor card or registration with a regional organ donation society) by which one makes their wishes known. Our least populated province may be the first to eschew this system.

As reported on Tuesday, Health P.E.I. is considering a shift towards an ‘opt-out’ donation program in an effort to increase the organ yield in their province. Under such a ‘presumed consent’ scheme, a person is automatically considered an organ donor upon their death, unless the deceased had registered their objection while alive. A presumed consent organ donation program is not a new idea; in France, Spain, Portugal, Greece, Luxembourg, Italy, Austria, Belgium Netherlands, Singapore and Germany, organs and tissues are essentially considered property of the state unless one actively opts out in his/her lifetime. By 2015, Wales hopes to become the first in the UK to join the opt-out trend.  

Are there advantages to a presumed consent regime? Don Mills, CEO of Corporate Research Associates summed it aptly: “Most people, if you ask them directly to become an organ donor, they probably will. But if you make them work for it, they’re probably not going to pay too much attention.”  A 2006 U.S. meta-analysis concluded that indeed, opt-out programs had a ‘positive and sizeable effect on organ donation rates’.  Nonetheless, in 2007, the Citizens Panel on Increasing Organ and Tissue Donation rejected a presumed consent framework as a means by which donation rates in Ontario could be boosted, and referred to such a framework as ‘too passive a method to be a clear statement of an individual’s intent.’

Canada’s donation rate (14.4 donors per million population) is one of the lowest in the developing world, and a report released by the Canadian Institute for Health Information earlier this year showed that across the nation, living and deceased donor rates have stagnated since 2006.  30% of people waiting for an organ transplant in Canada die on the waiting list.  Organ donation is a hot topic at present, particularly in the wake of double-lung recipient Hélène Campbell’s herculean efforts in the social media arena to engage both public discussion and personal reflection. This conversation is clearly long overdue.  Will P.E.I.'s voice lead the way?

Jennifer Hartman, guest blogger

[In the spirit of full disclosure, the author's father-in-law is a member of the Health P.E.I. Board.]

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80 percent of Canadians do not have a Living Will to express what types of care they would and would not accept to prolong their lives, according to a national poll. Less than 50 percent have discussed the issue with their loved ones, and only 9 percent have discussed their wishes with their doctor.  Less than 50 percent have chosen who would act as their substitute decision maker if they became incapacitated.

Canadians, as a whole, wait until it is too late to make end-of-life treatment decisions, according to Dr. Daren Heyland, professor of medicine at Queen's University, as quoted by the Vancouver Sun.  "We're harming people at the end of life when we should be celebrating their lives and providing them with dignified comfort measures."

Dr. Heyland and his colleagues interviewed elderly patients at the end of their lives and asked them what types of medical intervention they would want. They found that only 1/3 of the patients' wishes corresponded with the "code status" on their charts.

Dr. Robert Fowler, an associate professor in medicine and critical care at the University of Toronto said, "the expectation today is that every illness can be cured, and that there is always hope. We're going to have to come to terms with the notion that death is inevitable. Clearly, for all of us, there is ultimately going to be something that can't be cured."

While people are well, they should make decisions about the types of invasive care they would want, because once they are in the intensive care unit, it may be too late to make critical decisions that may increase their pain and suffering, diminish their quality of life, and may only prolong their death.

Holly LeValliant

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"How we help our aging population is one of the ways we measure success as a nation, and measure success as a collective humanity," stated McMaster president Patrick Deane, upon accepting a private donation of 10 million dollars to fund research of "optimal aging."

The generous donation was made by Suzanne Labarge, a McMaster alumnae who retired as the Vice-Chairman and Chief Risk Manager of the Royal Bank of Canada.  The Globe and Mail reports that Ms. Labarge was motivated to make the donation because, as she says, "it's a national priority. I hope the donation will help us answer the right questions."

So far, projects that have been granted funding from the donation include research as how to improve car designs for older drivers and a study on the effects of yoga on older women with arthritis.

Holly LeValliant

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Money, heirlooms and other property are not the only items one can leave behind on death. Much time and attention is spent on making arrangements for burial and on other aspects of estate planning. However, often overlooked during the estate planning process are the most valuable gifts a person has to give – their organs. Although an emotionally charged and deeply personal subject, the decision to donate or not to donate organs ought to be considered when planning ahead for what happens when we die. 

The regime for organ donation in Ontario is governed by the Trillium Gift of Life Network Act. The Act sets out who may give consent to donate organs for implantation, for medical education, or for scientific research. Consent can be given by the donor in writing at any time, so long as he or she is over the age of sixteen. Consent can also be given verbally, but verbal consent is only valid if it is given during the donor's last illness, and in the presence of two witnesses. An organ donor card may be helpful as it may constitute written consent. However, if the card is not immediately available at the time of death, it may not be discovered until it is too late.

Many difficult end-of-life decisions can be dealt with by way of a power of attorney for personal care such as to what extent extraordinary life-extending measures may be taken. This can save loved ones from having to make these agonizing decisions under such trying circumstances. Unfortunately, this is not the case when it comes to organ donation. A power of attorney ceases to operate on death. The Substitute Decisions Act at section 66(14), read together with section 67, specifically exempts "[t]he removal of regenerative or non-regenerative tissue for implantation in another person's body" from the ambit of the Act, and therefore the powers that can be granted under a power of attorney. 

If there is no consent from the potential donor, this difficult decision is left in the hands of the grieving family. The person's spouse, if available, will be forced to decide during one of the most difficult times of his or her life. If there is no spouse or if the spouse is unavailable, the responsibility will fall to the person's children, then parents, then siblings, then next of kin, and finally to the person in legal possession of the body, in that order. 

It is very important, therefore, that your wishes with respect to organ donation are made known in advance to your loved ones or to whoever may be at your bedside at the time of death. While not an easy conversation to initiate, it is a very important one to have. The issue should be given some attention when preparing a will or estate plan, giving a power of attorney, or before undergoing a risky medical procedure. 

The most effective way to ensure that your wishes are followed at the time of death is to register with the Trillium Gift of Life Network. The Network allows you to register your consent in a secure database that will only be accessed in the event of your death or imminent death after all life-saving efforts have failed. It is a sure and secure way to make known your wishes either to donate or not to donate. Online registration is available here. 

The Trillium Gift of Life Network is a great resource for information on organ donation. Whether you would prefer to preserve the integrity of your body on death, or to give a potentially life-saving gift, it is important to take the proper steps in advance to ensure that your most important testamentary wishes are followed.

Ian M. Hull

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As of last night, the parents of Junior Seau, who are from the island of Aunu’u, American Samoa, were meeting with Samoan elders to discuss how to respond to requests by researchers for the opportunity to study Seau’s brain. Last Wednesday, Seau, former linebacker for the San Diego Chargers, was found dead in his Oceanside, California home. His death was ruled a suicide. The media is saturated this week with discussion of whether Seau’s NFL career played a role in his early death. There are a number of indisputable facts, between which one can interpolate:

• Seau took his own life by shooting himself in the chest. Fifteen months ago, former NFL safety Dave Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note asking for his brain to be donated for research. The Boston University School of Medicine Center for the Study of Traumatic Encephalopathy determined that Duerson’s brain indeed showed signs of CTE, the progressive, degenerative disease associated with repetitive closed head injuries.

• Up until April 19, 2012, Former Atlanta Falcons safety Ray Easterling was the lead plaintiff in a class action lawsuit against the NFL over concussion-related injuries. Since his death last month, by suicide, his widow has vowed to continue to fight the lawsuit her husband started after 20 years of suffering from symptoms of repetitive head trauma including memory loss, mood changes and depression.

• According to a 2011 study conducted by the Matthew A. Gfeller Sport-Related Traumatic Brain Injury Research Center at the University of North Carolina, the average life expectancy of a retired NFL player is 55 years. Some insurance providers have indicated that this is actually an overestimation, and that in fact the average age is somewhere closer to 51 years. For comparison purposes, the average male life expectancy in the United States is 78.2 years. [Note: If you played for the San Diego Chargers in 1994’s Super Bowl XXIX, then the odds against you are significantly grimmer. Eight of those teammates are dead, all before reaching the age of 45; a statistical anomaly since the 8 deaths lacked common cause.]

• The same UNC study  suggested that retired NFL players suffer from dementia at a 37% higher rate than average.

• A 2006 report in the St. Petersburg Times found that the more games and practices an NFL player survives, the quicker he dies. In his first 14 pro seasons, Seau missed only 9 games.

If Seau’s parents decide not to donate his brain for research, we may never know with certainty whether he suffered from Chronic Traumatic Encephalopathy. One thing is for sure, there’s something about playing in the NFL that doesn’t bode well for one’s life trajectory. Are repeated head hits causing organic damage to the brain, after which depression is the next domino to fall? Or perhaps, as in Easterling's case, organic brain damage brings on intolerable shifts in personality and cognitive functioning, but in an unkind twist, leaves one with just enough insight to see what lies ahead. Roger Goodell has made great strides since becoming NFL commissioner in 2006, introducing preseason baseline concussion testing, for example, not to mention the unprecedented smackdown of the Saints players implicated in the bounty scandal earlier this month.  His work is far from finished.

Jennifer Hartman, guest blogger

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Add former Washington Redskins quarterback Mark Rypien and 125 other former professional football players to the list of people now suing the NFL. On March 23, a class-action lawsuit in which Rypien is the lead plaintiff was filed in the U.S. District Court of the Eastern District of Pennsylvania. According to court documents, the lawsuit alleges that the NFL “deliberately ignored and actively concealed” the dangers and risks of “repetitive traumatic brain injuries and concussions for decades”.

Canadian-born Rypien, now 49, quarterbacked for the Redskins from 1986 until 1993. The suit alleges that Rypien suffered multiple concussions and head injuries during his time with the Redskins, and as a result, he now suffers from “various neurological conditions and symptoms”. The plaintiffs are seeking “medical monitoring, as well as compensation and financial recovery” for the long-term and chronic “injuries, financial losses, expenses and intangible losses”.

This class-action lawsuit is not an aberration; NFLConcussionLitigation.com lists 51 suits against the NFL, representing more than 1,000 former players. Just six weeks ago, the family of former Chicago Bears star Dave Duerson filed a wrongful death suit against the NFL claiming the league did not do enough to prevent or treat the concussions that severely damaged Duerson’s brain. In February 2011, Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note pleading to have his brain donated to researchers at the Boston University School of Medicine Center for the Study of Traumatic Encephalopathy. The attorney representing Duerson’s family said the NFL should have been a leader in educating current and former players about head injuries.

Rypien’s lawsuit comes on the heels of the NFL’s investigation of allegations that the New Orleans Saints and other teams had ‘bounty programs’ which offered cash bonuses to players for injuring specific opponents. In response, NFL Commissioner Roger Goodell suspended Saints coach Sean Payton for one year, without pay.  General Manager Mickey Loomis was suspended for eight games, assistant coach Joe Vitt was suspended for six games and former defensive coach Gregg Williams (who left the Saints to join the St. Louis Rams) has been suspended indefinitely.  On Friday, Loomis, Vitt and Payton announced that they are appealing their suspensions.  The NFL has indicated that as many as 27 players may have been involved in the bounty scandal, although at the time of publication, none have been sanctioned.

Jennifer Hartman, guest blogger 

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OxyContin was developed in the 1990s for the purpose of providing around-the-clock relief from moderate to severe acute pain, chronic pain or pain associated with cancer or other terminal conditions. OxyContin contains the opioid drug oxycodone (other opioid drugs include morphine, codeine, heroin and methadone). OxyContin, with its time-release properties, was billed as an improvement on the decades-old Percocet, which contained 5 mg of oxycodone and gave pain relief for only about 5 hours. One 80mg OxyContin pill contains the same amount of oxycodone as 16 Percocets, and therein lies the fly in the proverbial ointment. Addicts quickly discovered that there was an amplified bang for their buck to take an OxyContin pill and crush it down in order to nullify the time-release coating. Once crushed, the OxyContin could then be chewed, snorted or dissolved in water and injected to produce a heroin-like euphoria. The risk to the abuser is significant and well-known: overdose and death.

OxyContin was first introduced to the U.S. market in 1996. By 2001 OxyContin was leading the non-generic narcotic pain reliever segment and by 2008, U.S. sales topped $2.5 billion (roughly a half billion tablets). According to IMS-Brogan (which tracks drug trends), sales in Canada rose from $3 million in 1998 to $243 million in 2010. North Americans now consume more OxyContin than all other countries of the world combined. And somewhere along that timeline, OxyContin morphed from the panacea for terminal cancer patients into what is commonly referred to as “hillbilly heroin”. Each year in Ontario, there are more deaths due to OxyContin overdoses than due to drowning.

At the end of this month, the manufacturer is removing the brand OxyContin from the Canadian market.  At the same time, as a result of a third party review of the Ontario Drug Benefit claims data looking at the use of oxycodone long-acting tablets, the Ontario Health Ministry is delisting OxyContin from the Ontario Drug Benefit (ODB) formulary.  In addition, the Ministry will make it more difficult to access OxyContin's replacement, OxyNEO, which comes on the market March 1. OxyNEO will also contain oxycodone and offer the same effectiveness of OxyContin, but will be harder to crush, and will turn into a thick gel-like substance when 'cooked' or mixed with water for intravenous injection.  OxyNEO will be funded through the province's Exceptional Access Program, which means the drug will be more tightly controlled.  In order to obtain a prescription for a drug under the EAP, the patient's physician must submit a request to the Health Ministry providing the clinical rationale for requesting the unlisted drug.  According to the Ministry's website, an EAP approval may take up to three months to process, from the date of the application request.

While the phasing out of funding of OxyContin under the ODB is to be loudly applauded, questions remain:  How will communities, particularly those that are remote and have limited access to treatment options, respond to the acute surge of cases of oxycodone withdrawal? Will OxyContin addicts turn to heroin, cocaine or another opioid to fill the abyss, or will the limited supply on the streets simply drive up the price per pill (currently just shy of $80 for an 80mg dose) and set the scene for an explosion in crime rates?  For addicts, March may indeed "come in like a lion".

Jennifer Hartman, guest blogger

* photo from Narconon International
 

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A controversial article written by retired physician Ken Murray entitled "How Doctors Die" has people talking about advance directives - also known as Living Wills.

Advance directives are legal documents which express a person's wishes with respect to the kind of health care they want to receive in the event they become unable to make medical decisions for themsleves.  Legislation in Ontario requires that advance directives be considered when others make health care decisions on your behalf. 

Pursuant to section 21(2) of the Health Care Consent Act:

"A person who gives or refuses consent to a treatment on an incapable person's behalf shall do so inaccordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests."

A recent study found that about 67% of physicians prepare advance directives - while less than half of lay severly or termanilly-ill patients do.  Those who did prepare advance directives were three and a half times more likely to refuse certain types of medical intervention, including "rescue care" such as CPR. 

Ken Murray's article highlights the irony of a system where most physicians make the personal choice to refuse the very same procedures they perform on patients everyday.  In his article, he suggests that physicians are adverse to "futile care" because they know from experience that such procedures often merely prolong and exacerbate suffering, especially when performed on unhealthy elderly and/or chronically ill patients.

So, whether your instructions are to avoid so-called heroic measures, or to encourage the use of any means possible to elongate your life, advance directives are an excellent way to clarify your views with respect to your health care plan.  They also assist your substitute-decision maker in making difficult choices consistent with your wishes. 

Moira Visoiu - Click here for more information on Moira Visoiu. 

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A ‘controlled substance’ is any type of drug whose manufacture, possession or use is tightly regulated by a government because of the higher-than-average potential for abuse or addiction. In Canada, controlled substances fall under the parameters of the Controlled Drugs and Substances Act (S.C. 1996, c.19).  How is it, then, that hundreds of thousands of doses of OxyContin, morphine and other prescription narcotics are ‘robbed, pilfered or otherwise lost’ from the supply chain each year in this country?

On January 23, the National Post’s Tom Blackwell published some startling statistics about the not-so-slow leak of prescription narcotics from the supply chain. According to the Post’s research (based on Health Canada statistics), only 64% of the loss and theft of oxycodone (the active ingredient in OxyContin) is attributable to theft from, or robbery of pharmacies. Suppliers higher up the chain (e.g. manufacturers and importers) are also losing significant volumes of product, accounting for the other 36% of total loss. What scale of loss are we talking about here? If we just look at oxycodone, the combined black-market value of losses from pharmacies and ‘licensed dealers’ (producers, distributors, wholesalers) in 2010 was just over $18 million. That’s roughly a half million tablets.  Professor Benedikt Fischer, an addictions expert at Simon Fraser University summed it thusly: “This isn’t some trivial problem. We’re now looking at a problem that is a major source of disease and death. These drugs are killing a lot of people.”

The volume of drugs taken from wholesalers and distributors has also increased substantially in the past five years.  It is difficult to put a finger on any single cause.  Blackwell's article presented some prime suspects for consideration, including cutbacks in the number of controlled substance inspectors and the bare fact that a trend of increasing prescription rates for opioids translates into more opioids being in the proverbial pipeline.

It is critical that Health Canada gets to the root of the supply chain leaks.  Fischer's "these drugs are killing a lot of people" was no overstatement.  Indeed, as discussed in an earlier blog, accidental deaths in Ontario due to opioid use exceed deaths from HIV.  And from the Globe and Mail (January 6, 2012): the same number of people die from opioid-related deaths in Ontario each year as they do from motor vehicle accidents.  

Jennifer Hartman, guest blogger

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Nursing homes in Ontario select healthier patients over those who require more care, according to an expert in Ontario. This leads to backlogs in hospitals while patients with high needs wait for a nursing home that will accept them.

According to Healthzone, Dr. David Walker commented on the plight of an elderly woman who was threatened with a bill of $1,300 a day if she refused to vacate her bed at Toronto East General. The 84 year old patient suffered a stroke two months before and now requires a feeding tube to eat, but there are a limited number of nursing homes with the ability to care for her. 

“If she were walking around the floor of Toronto East General, looking forward to being able to go to a nursing home where she would be able to feed herself and play cards, she would be gone in a flash,” Walker said.

“The incentive at the moment is that you fill up your nursing homes with the healthiest people and our health system ends up burdened with all sorts of people with high needs,” he added.