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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Last Friday, the Ontario Ministry of Health announced plans to introduce legislation later this month that will allow the province to expand its drug database to track prescription drugs. The narcotics database will identify prescription ‘hot spots’ and alert officials when a patient attempts to fill prescriptions from multiple doctors at multiple pharmacies. Prescriptions under both public and private drug plans will be monitored. [Currently, the tracking system only tracks drugs prescribed under a provincial program that funds meds for seniors, welfare recipients and the disabled.] Provincial Health Minister Deb Matthews indicates that the plan will also work with regulatory groups like the College of Physicians and Surgeons of Ontario to create ‘better pain management strategies for its members’. The proposed narcotics strategy has received resounding support from both the Centre for Addiction and Mental Health (CAMH) and the Ontario Pharmacists’ Association.

Earlier this year, I blogged about the issue of ‘doctor shopping’, defined as the practice of visiting numerous doctors, dentists, or pharmacies to fraudulently obtain prescriptions for non-medicinal use. Of particular concern are narcotics and other controlled substances, including painkilling opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet, Oxycontin, and Fentanyl), stimulants (amphetamines such as Ritalin) and sedatives (such as Valium, Xanax, and Ativan).  Some stark statistics:
• In the past decade, prescriptions for oxycodone-containing drugs jumped 900% in Ontario. Last year, under the OHIP drug plan, the province spent over $150 million for narcotics, half of which was for Oxycontin.
• 18% of students (Grades 7 – 12) report using prescription opioids non-medicinally in the past year. The overwhelming source for the students’ opioids was not schools, or the street, but their own homes.
• Ontarians, per capita, use three times more prescribed narcotics than patients in other provinces.
• Last year, the Canadian Medical Association Journal reported that in Ontario, accidental deaths due to opioid use exceeded deaths from HIV.

As an aside, I am curious: In estate proceedings where testamentary capacity is in dispute, will the contents of the narcotics database be accessible pursuant to court-ordered production of “all relevant medical records”?
 

Jennifer Hartman, Guest Blogger
 

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In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:

• Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
• Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
• The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.

There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator's cognitive functioning, and serve as a tool for assessing the progression of the impairment.

Jennifer Hartman, guest blogger
 

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Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).

In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”

For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.

David Smith

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