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Hull & Hull LLP will be posting our second 'health series' of blogs starting on Monday August 10th.  The series will run every Monday thereafter in the month of August, for a total of four blogs.  The following subjects will be featured:

• Polypharmacy and Seniors
• Multiple Attorneys for Personal Care
• Traumatic Brain Injury
• Palliative Care - an Overview

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

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Delirium and dementia – are they different? Indeed, delirium and dementia are very different and have different diagnostic criteria, although just to muddle the discussion, these syndromes can occur concurrently.

Delirium
The word ‘delirium’ is derived from the Latin term delirare meaning ‘off the track’. Delirium is not a disease, but rather a syndrome that manifests as a change in mental state. It is often referred to as an acute confusional state; ‘acute’, meaning of rapid onset and short duration. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and the Canadian Mental Health Association, symptoms include:

· Problems with attention, memory and thinking
· Disturbances in consciousness and perception
· Disorientation to time
· Disruption of the sleep-wake cycle

Delirium is considered a medical emergency and it is important that the cause is investigated thoroughly. Metabolic disorders (e.g. organ failure, diabetes, hyperthyroidism, dehydration and vitamin deficiencies) are the single most prevalent cause of delirium.

Statistics suggest that 15% of older persons admitted to hospital have delirium and over 50% of older persons may develop delirium while in hospital.

Dementia
Dementia is not a specific disease, but rather a clinical syndrome accompanying disorders that affect the brain. Unlike delirium, which occurs over the span of minutes or hours, dementia is a chronic, usually progressive, degenerative and often irreversible decline in mental status. Symptoms of dementia include:

· Loss of memory
· Confusion and disorientation
· Language impairment and problems with judgment and reasoning
· Disruptive and inappropriate behaviour

Dementia is an umbrella term. There are over 100 types of dementia, the most common of which is Alzheimer’s disease, which, according to the Alzheimer Society of Canada, accounts for over 64% of all dementias in Canada. Other related dementias are attributed to Parkinson’s disease, acquired brain injury, Huntington’s disease, multiple strokes, chronic drug use and long-term alcohol abuse.

Initial findings of the study, “Rising Tide: The Impact of Dementia on Canadian Society”  (Alzheimer Society, 2009) indicate that approximately 500,000 Canadians are living with dementia, 71,000 of whom are under the age of 65. The study estimates that within the next five years, an additional 250,000 Canadians could develop Alzheimer’s disease or a related dementia. The number of Canadians with dementia is expected to triple between 1991 and 2031. 
 

Jennifer Hartman, Guest Blogger

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There is a common misconception that strokes are almost formulaic in nature; sort of a one-size-fits-all approach to causes and outcomes. This is actually far from the truth. Here’s a quick anatomy refresher:

Strokes are either ‘ischemic’ in origin (i.e. caused by a blood clot), or ‘hemorrhagic’ (caused by uncontrollable bleeding in the brain). Outcomes of a stroke are dependent on the severity of the stroke and the location of the damage to the brain, both of which can be assessed in an emergency setting using either CT or MRI imaging techniques.

· The cerebrum is divided into the left hemisphere and the right hemisphere. Each hemisphere is divided into portions called ‘lobes’. The effects of a stroke in the cerebrum will be dependent on the lobe(s) affected:

· The frontal lobe is responsible for motor functions and ‘executive functions’, which include reasoning, planning and problem solving, as well as one’s social graces.
· The temporal lobe is involved in speech, memory and auditory perception.
· The parietal lobe is responsible for sensory activities, including receiving and interpreting information from other parts of the body.
· The occipital lobe is located at the back of the head and is responsible for visual processing.

· A stroke that occurs in the cerebellum affects coordination and balance, and often causes dizziness, nausea and vomiting.
· A brain stem stroke, while uncommon, is particularly devastating, since the brain stem controls our involuntary functions such as breathing and heart function, as well as swallowing.

It is important to further differentiate between a stroke and a transient ischemic attack (‘TIA’). A full-blown stroke can certainly be severe enough to render one incapable of making or changing a Will, although some recovery is possible, particularly if formal stroke rehabilitation is actively pursued. In contrast, a transient ischemic attack, as the name suggests, often fully resolves within minutes or hours, although incapacity may still be an issue during the attack. Both a stroke and a TIA are medical emergencies that require assessment and treatment in a medical facility.

Statistics indicate that of every 100 people who suffer a stroke, 10 will recover completely, 15 will die, 25 will recover with a minor impairment and 50 will have a moderate to severe disability, some requiring long term care.

For more information, visit the Heart and Stroke Foundation online.

Jennifer Hartman, Guest Blogger

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Hull & Hull LLP will be posting a 'health series' on our blog platform starting on Monday February 2nd.  The series will run every Monday in the month of February, for a total of four blogs.  As a nod to those subscribers who are estates and trusts practitioners, as well as to those subscribers who are clients of the same, the following subjects will be featured:

• Strokes; an overview
• Delirium vs. dementia; a quick reference guide
• The Mini-Mental Status Examination
• Mental illness

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

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There are three kinds of lies: lies, damned lies, and statistics. – Benjamin Disraeli, British Politician, (1804-1881)

Have you ever been completely overwhelmed while reading the morning paper? 1 in 6 American men will be diagnosed with prostate cancer during his lifetime (American Cancer Society, October 2008). Studies estimate that CT scans account for as much as 2 percent of all cancers (as reported by Reuters, December 2008). People who sleep less than seven hours a night are three times more likely to develop a cold than people who sleep eight hours or more a night (Carnegie Mellon University, January 2009). Mouthwash linked with increased cancer risk (Australian Dental Journal, January 2009). How are we to interpret and digest all of this information? Data about relative risks and absolute risks – heck, it’s 6:30 a.m. and I’m lucky if I can focus long enough to read the back of the Wheaties box.

According to a January 11, 2009 article in the Sacramento Bee, ‘Risk percentages, drug benefit numbers and survival rates can be manipulated as deftly as a chiropractor cracking a back.’ An article published the same day in the Chicago Tribune cited a group of physicians at Dartmouth Medical School as saying that ‘taking time to understand the often-confusing statistics used in the medical industry, is key to making smarter decisions about your individual healthcare.’

Here are some tips to remember when wading through the 11 o’clock news:

· Differentiate between a lifetime risk and an annual risk. An annual risk is the number diagnosed each year in a population, usually expressed as a number per 1,000 or 100,000 individuals in the population. The lifetime risk is the sum of the risk of developing that disease each year, and thus sounds far more ominous.
· Where possible, re-frame the statistic. Yes, colon cancer strikes 150,000 Americans, but there are 300 million Americans, which means you only really have a 0.05 percent chance. Don’t you feel better already?
· Know your starting risk. If a drug company says their drug will result in 50% fewer deaths, then you need to ask: what was the starting risk of death? As the Chicago Tribune article so beautifully analogized: a 50% off coupon applied to a 50-cent pack of gum reaps different savings than when applied to a $35 turkey. So did you start with the gum or the turkey?
· Check to see if the study involved people similar to you in terms of age, gender, risk factors and family history. While you’re at it, double check to make sure the study referenced human subjects, as opposed to rodents.

Above all, remember that getting a disease does not, by a long shot, mean dying of it.

Intrigued? Try perusing “Know Your Chances: Understanding Health Statistics”, S. Woloshin, L.M. Schwartz, and H.G. Welch, University of California Press, November 2008. My favourite: “Struck By Lightning: The Curious World of Probabilities”, J.S. Rosenthal, HarperCollins Canada, September 2005. 

Jennifer Hartman, Guest Blogger
 

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You've heard the expression, "A little knowledge can be a dangerous thing".

A few weeks ago, my husband (he begged me not to name him) was washing the dishes when he suddenly cried out in pain.  He had, by the strangest of circumstances, somehow managed to drive an uncooked spaghetti noodle under his thumbnail.  Ow, indeed.  Since I couldn't actually see the noodle under the nail, I figured the noodle was now somewhere in the middle of the meat of his thumb, and therefore suggested he go see his doctor the next day and get on a course of prophylactic antibiotics before things got worse.  He ignored my advice, at which point I suggested that maybe he should soak it in hot water.  Say, for 8 to 9 minutes.  Until al dente.

Two nights later, at 3 a.m., I awoke to the glow of his blackberry as he lay there in the dark, frantically googling 'nail bed infection'.  He was in his doctor's office hours later.

There's a name for it.  Cyberchondria.  According to a recent Globe and Mail article, cyberchondria is 'hypochondria on metaphorical steroids, its effects amplified by the staggering number of disastrous outcomes the Web can provide.'  In a Microsoft study released in late November, researchers discovered that after typing 'headache' into a search engine, 'caffeine withdrawal' and 'brain tumour' came up with the same frequency.  As the article suggests, the Internet truly is the hypochondriac's perfect storm.

Needless to say, it is the physician who bears the brunt of this ignorant and undiscerning application of "Dr. Google's" expertise.  You've seen them; the ones in the waiting room with their printouts clutched in their hands, ready to storm their doctor's office with a proclamation of impending death.  They're the real reason your GP is running behind today.

My husband is on antibiotics now, but still has tenderness and numbness in that thumb.  Which should at least slow down his Google searches for a few more days...

Jennifer Hartman, guest blogger

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The administration of drug therapy in the elderly is a complex undertaking.  As a person ages, they undergo physiological changes; changes in body composition, gastrointestinal, liver and/or renal function that can alter both the therapeutic and toxic effects of drugs.  Created in 1991, and most recently updated in 2003, the Beers List includes drugs that 'are either ineffective in the elderly or put seniors at an unnecessarily high risk when safer alternatives are available' (CBC News, September 2007).  The list, compiled by a group of American experts led by Dr. Mark Beers, was created to determine which drugs should be used in nursing homes, since seniors are known to be particularly at risk for adverse side effects, including falls (see blog of November 28, 2008), depression, and even death.

Last year, the Canadian Institute for Health Information reported that the Beers List has resulted in a reduction in use of the listed drugs, as well as a reduction in the number of adverse side effects linked to these prescription medications.  It is, however, not all good news across the board.  According to CIHI, 25% of seniors are still receiving at least one drug on the Beers List.  Further, a 2005 CBC investigation found that in spite of making up only 13% of the population, seniors accounted for over 44% of all deaths reported to Health Canada's adverse drug reaction database between 1999 and 2003.

With families gathering this month for various holiday celebrations, it may be an appropriate opportunity to suggest a 'brown bag review' for mum or dad.  Just like the name suggests, a pharmacist or geriatrician can review all of mum's medications (both prescription and non-prescription, including herbal products) and check for correct dosage, frequency, duplication of drug therapy, discontinued products, and potential interactions.  It goes without saying that changes to a drug regimen should only ever take place under the direction of one's physician.

Note:  In 2007, CBC News 'Canadianized' the Beers List to reflect only those drugs available here in Canada, and also took the liberty of adding a number of benzodiazepines (medications that are prescribed for the treatment of anxiety and sleep disorders and have been found to increase the likelihood of a fall four-fold) that are available here, but not in the States.  Click here to access the modified version.

Stay tuned Thursday for a much lighter-hearted healthcare blog.

Jennifer Hartman, guest blogger

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Listen to the Health Care Consent Act.

This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

The Golubchuk Case and the Health Care Consent Act - Hull on Estates Podcast #123

Posted on August 12^th, 2008 by Hull & Hull LLP

Megan Connolly:  Hello and welcome to Hull on Estates. You’re listening to Episode #123 on Tuesday, August 12^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.

Megan Connolly:  Hi and welcome to another episode of Hull on Estates. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham.

Megan Connolly:  If you want to be heard on Hull on Estates, you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address which is hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Sean Graham: Hi Megan, how are you?

Megan Connolly: I’m fine, how are you?

Sean Graham: Pretty good thanks. Well we thought we’d start off today by speaking about the Golubchuk case out of Manitoba and then segway into discussion of the Health Care Consent Act of Ontario which would have applied in the Golubchuk case had it been an Ontario case, but of course, it was Manitoba. So maybe Megan, if you can just sketch out the Golubchuk case it might be helpful.

Megan Connolly: Sure. The case arose at the end of 2007 in November, where an elderly man was admitted to the hospital and was severely ill. At the time he was admitted he couldn’t breathe on his own, he was on a ventilator, there was a tube down his throat, his brain was functioning but not very well; he couldn’t walk, he couldn’t speak and as a result of a cardiac condition, his heart wouldn’t beat properly.

Sean Graham: And it seems that the doctors, or some of the doctors at least, seem to have been pretty sure that Mr. Golubchuk was not going to recover and that continued life support measures, or extraordinary measures, whatever term you want to use, were not benefitting him and it seems as though the doctors, most of them at least, were of the view that life support should be discontinued. On the other side, it looks as though some of Mr. Golubchuk’s children felt differently and wanted to prolong his life.

Megan Connolly: Right. So what the doctors wanted to do, as you said, was remove the patient from the ventilator which isn’t an unusual thing to do when doctors have decided the person is not going to get better and, of course, when the family agrees. Now in this case, the elderly man’s children said first of all, that the removal of the ventilator or the withdrawal of the life support would require the consent of the children, that the removal of the ventilator or life support by the doctors would constitute assault and would constitute battery, in that it would, at a minimum, hasten the elderly man’s death. Another issue that was raised was the fact that the withdrawal of the life support would seem to contravene the man’s religious beliefs. He was an Orthodox Jew, and the analogy they used was imposing blood transfusion on a Jehovah’s Witness. I guess the religious belief for Jehovah’s Witnesses would preclude the use of a blood transfusion.

Sean Graham: So I understand that it looks as though the hospital was of the view that the family did not understand adequately at least, the seriousness of Mr. Golubchuk’s condition, that the conclusions reached by the doctors were acceptable and conformed to the standards the doctors felt themselves needed to apply, that the withdrawal of the medical treatment could well be in Mr. Golubchuk’s best interest, even if it meant that he would succumb to his illnesses, and that the decision to withdraw medical treatment is that of the physician and not that of the patient or the Courts. And so it was quite an argument that was set up in this case between the family and the medical professionals.

Megan Connolly: Now, in November 2007, the family won a Court injunction preventing the doctors from withdrawing life support and a few weeks later the Court ordered that the matter be set down for trial. Now, while this took a toll on the family, it also took its toll on some of the doctors at the hospital. A number of them resigned, saying that their personal conscience and their professional ethics prevented them from continuing to provide medical interventions that, in their mind, would harm a patient without any prospect for future benefit. 

Sean Graham: Even though the matter was set down for trial, it never made it to trial because Mr Golubchuk died. And so the delays we often encounter in the trial system in this case really meant that there was a tremendous amount of controversy and difficulty and stress, and in fact that the system did not end up giving the parties the chance to argue the matter and find out what the Court would have believed at the end of legal arguments.

Megan Connolly: Now the family had originally brought a law suit against the hospital, although last week I saw an article saying that they’d since abandoned the law suit.  So I guess with respect to this matter, nothing further is going to happen in the Court system.

Sean Graham: Yeah, it looks that way. And I think it’s helpful to turn to the Act in force in Ontario that would cover some of these issues, and that’s called the Health Care Consent Act. And Section 10 of the Health Care Consent Act talks about needing consent before treating a patient.

Megan Connolly: And what that Act says, is that when a doctor, or I guess a health care practitioner, proposes treatment for someone, they can’t administer their treatment unless the person consents to it.

Sean Graham: Now the question, of course, is what’s consent?

Megan Connolly: Um hm.

Sean Graham: And so the Act helps us out there also by stating out the elements of the consent, and there’s four elements. I’ll just go through them. The first is that the consent must relate to the treatment, so that’s fairly self-explanatory. The second is that the consent must be informed so the patient must have some understanding of exactly what they’re getting into. Third, and this is kind of obvious I think, but it’s there anyway, the consent must be given voluntarily.  And then finally, which is also obvious, the consent must not be obtained through misrepresentation or fraud.

Megan Connolly: And this goes into, I guess, the next aspect of consent, which means it has to be informed consent. Now the issue of informed consent has given rise to enough litigation although it’s probably the purview for today, but I guess, basically put, the patient needs to be provided with sufficient information about the treatment so that they can, in a knowledgeable and informed way, consent to it.

Sean Graham: And the statute goes into a little bit more of a definition stating that the consent is only informed if, before giving it, the person consenting received the following information, and there’s a list in subsection 11(3) of the Health Care Consent Act. There’s six items. The first is that the person needs to know sufficient information about the nature of the treatment; (2) is the expected benefits of the treatment; (3) the material risks of the treatment; (4) the material side effects of the treatment; (5) alternative courses of action; and then (6) the likely consequences of not having the treatment. 

Now in Mr. Golubchuk’s case, I’m not sure that would have ever been possible for Mr. Golubchuk.  It’s not clear to me whether he had any chance really, before he was in the position that led to this case, whether he had any chance to obtain treatment.  But certainly by the time this case came to the forefront, he did not have capacity and so a different section of the Act, which is entitled “Consent on Incapable Person’s Behalf” would have applied, and maybe you can just take us through that, Megan.

Megan Connolly: Right, so as you said, I mean it’s great for someone to consent, but it’s not unusual for someone to just not be able to consent, and in this case I think the man was in a coma and couldn’t speak and didn’t really understand what was going on around him.  So you can’t have informed consent, but obviously it doesn’t make sense to say, well we’re just not going to treat someone if they can’t consent. So when somebody is incapable of consenting to treatment, and that doesn’t mean they won’t consent to it because they don’t want to but they’re mentally or physically incapable of providing that consent, the Act provides for a list of people who can give or refuse consent on the person’s behalf. There are eight different people, starting with the person’s guardian of the person or their attorney for personal care, if they have one. They don’t always have one. The next person to be able to give consent is somebody who has been appointed as the incapable person’s representative by the Consent and Capacity Board.  After that it would be the incapable person’s spouse or partner.  Next it would be the children or parents of the incapable person.

Sean Graham: And if there is the Children’s Aid Society or it’s a situation where the Children’s Aid Society has lawful authority to give that consent, they can stand in the place of the parent. And it’s noteworthy that this paragraph does not include a parent who has only a right of access.  So this could have family law ramifications as well if spouses are in the course of or have completed matrimonial litigation.

Megan Connolly: So the parent who only does have a right of access may have the right to give the consent to treatment on the person’s behalf but not if there’s a parent who, I guess, has custodial rights.  And after that it’s a brother or sister, then any other relative. Now like I said, this is a rank order, so number one is the person’s guardian of the person and then you go down the list if no one else can provide consent.

Sean Graham: Now one aspect I found that was interesting in this is that the meaning of spouse is defined, and it makes a certain amount of sense because it needs to be clear that a spouse making this choice has to be a spouse under an ongoing relationship. Subsection 8 of Section 20 states that “two people are not spouses for the purposes of this section if they are living separate and apart as a result of the breakdown of their relationship”. I think it’s pretty clear why that section is in there.

Megan Connolly: Now when it comes to giving or refusing consent, the person just can’t do it arbitrarily. There are certain principles that they have to take into consideration when making a decision.

Sean Graham: Now that’s someone appointed under this section.

Megan Connolly: Yeah.

Sean Graham: An individual deciding on their own, my understanding is as long as they are capable, they in fact, could be arbitrary.

Megan Connolly: Right.

Sean Graham: But, a substitute decision-maker is a different kettle of fish.

Megan Connolly: So the first thing they have to take into account is whether they are aware of any wish the person has made previously that would deal with situations where consent had to be given.  So when capable, had they always been clear that if they were incredibly ill and weren’t going to recover, maybe they’ve stated while capable that they’d want support withdrawn. Alternatively, maybe they’ve said the opposite.

Sean Graham: There’s a list in Section 21 of the Act that sets out the factors to go into this. I think that, for the purpose of wrapping up, I think that maybe one of the best principles to come out of this is to be very careful in choosing an attorney for personal care because that is really the only way that someone can exercise any kind of control in planning for a situation where someone else is going to have to make the decision for them. I guess you can tell your family members but you’re not really sure who’s going to be around and who’s going to be making that decision.  So it seems to me the best way to try to have some control over these types of decisions is to appoint an attorney for personal care to make them on your behalf and then have a long heart-to-heart with that person, maybe more than one, as the years go on, in order that they will have some background in order to help them make that decision.

Megan Connolly: Right. So thank you very much. It’s been nice talking to you, as always, Sean.

Sean Graham: Yeah, thanks a lot, Megan. It was certainly a pleasure and I look forward to podcasting with you again soon.

Megan Connolly: Well I think that brings us to the end of this week’s discussion. Thank you for listening and thanks for joining me today. And we look forward to hearing from our listeners, so you can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull and the and is a-n-d not ampersand .com where you’ll find even more information and discussion on today’s practice of estates law. We hope you enjoyed the show. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham, until next week, so long.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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