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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This week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.

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.

Posted on March 18^th, 2008 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to Episode #102 on Tuesday, March 18^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.

Paul Trudelle:  Hi, I’m Paul Trudelle.

Allan Socken: Hi, and I’m Allan Socken.

Paul Trudelle:  Hi Allen, how are you today?

Allan Socken:  I’m good, thank you. How are you Paul?

Paul Trudelle: Good, withstanding the winter?

Allan Socken: Yeah, hopefully it’s close to an end.

Paul Trudelle:  The end is in sight, we’re almost there. With respect to our podcast today and we’re now up into the triple digits, we thought we’d talk a bit about the deemed undertaking rule. The deemed undertaking rule is a rule that applies in litigation, it’s a common law rule, that talks about the use of evidence, and it’s now codified in the Rules of Civil Procedure.

Allan Socken:  I think it’s also just important to make mention that while this appears to be standard practice in all jurisdictions in Canada, it’s interesting to note that only P.E.I. and Ontario have this codified within our Rules of Practice.

Paul Trudelle:  Yeah, that is a bit strange, but we have it codified in Ontario and that’s the system that we’re working under, so we’re going to talk a bit about the rule as it applies in Ontario.  However, it should be noted that it probably applies to the same effect in other jurisdictions as well, being a common law rule that is now codified.

With respect to the purpose of the rule, it basically… the rule is set to limit the use that one can make use of when obtaining evidence in the litigation process.  And there’s a very good quote from the Ontario Court of Appeal decision of Goodman v. Rosi that talks about the basis upon which the rule exists or why it exists.

Allan Socken:  It basically says the principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the Court. The necessary corollary is that this intrusion should not be allowed for any purpose, other than that of securing justice in the proceeding in which the discovery takes place.

Paul Trudelle:  Right, and I think that’s a great quote and I think it summarizes the purpose of the rule quite well and quite succinctly … I guess, put another way or restated, if you’re going to be forced to the litigation table by someone and you’re forced to disclose your documents, the documents only need to be disclosed for that limited purpose and they shouldn’t be disclosed for the whole world to see or they shouldn’t be used in some other proceeding and come back to bite you that way.

Allan Socken:  I think also to point out, I think the purpose of the deemed undertaking rule as is set out in Rule 30.1.01 sub 1, is that you can only use evidentiary documents that relate to the discovery and inspection of property, medical examination and the like. That’s what the rule tries to capture. So, for example, if you are in Court and there’s evidence given, then that probably isn’t captured under the deemed undertaking rule.

Paul Trudelle:  That’s right. The principle of the rule is if you’re forced to disclose information in the litigation process before it gets to open Court, it’s that information that’s going to be protected by the deemed undertaking rule. And the rule sets out that the rule applies to evidence obtained under the rules relating to documentary discovery, Examination for Discovery, that’s of the parties and of witnesses as well, inspection of property, medical examination, written interrogatories if they are used, and even as far as examinations in aid of execution after judgment is obtained. So it is of limited application, however, in the context of litigation, it seems to protect most evidence that you are able to obtain from the other party or from the witnesses.

Allan Socken:  For example, for Will challenges, a lot of the time, it’s very standard to ask for complete disclosure of medical, financial and legal information.  And especially in the case of legal materials, when you do a Will challenge, it may be necessary or it may be an option for the client subsequent to the Will challenge or during the Will challenge, to want to pursue a negligence claim against the solicitor in certain circumstances.

Paul Trudelle:  That’s right, Allen. And I think that that’s very important from an estate point of view. The only way we are able to obtain evidence, usually from medical practitioners, and perhaps more importantly from solicitors, is through the litigation process. If that evidence is protected by the deemed undertaking rule, that’s going to have a significant impact on the rights of the parties to pursue those types of claims, and we’ll talk about that in a minute.

The substance of the rule, I think we should mention briefly, we talked about what evidence it applies to. With respect to the substance, that’s set out in the rule itself.  And the rule states that all parties and their counsel are deemed to undertake not to use evidence or information to which the rule applies, and we talked about that, for any purposes other than those of the proceeding in which the evidence was obtained. So that’s very limiting.  You can’t use it for any other purpose other than the purpose of the very litigation that’s before the Court. And that’s quite restrictive. Having said that, there are exceptions to that rule and perhaps we can talk about some of the exceptions that are set out in the rule itself.

Allan Socken:  Sure. Some of the exceptions are that the deemed undertaking rule does not apply to evidence that is filed with the Court. Similarly, it doesn’t apply to evidence that is given or referred to during the hearing, as well as information obtained from evidence regarding the evidence filed within the Court, or evidence that is given or referred to in the hearing.

Paul Trudelle:  That’s right. So once the material is aired in an open Court, then its open game and the parties are able to … the protection no longer applies. Similarly, if you obtain some information and it’s disclosed in open Court that leads to other information, that information isn’t protected either. There’s another exception that deals with using evidence to which the parties consent. So if you get the consent of the person with respect to the evidence that’s disclosed, then it can be used for another purpose.  Although if you’re going to be suing that person, it’s probably not likely you’re going to be getting their consent.

Allan Socken:  And I think another exception is the deemed undertaking rule doesn’t apply when the interests of justice outweigh the prejudices of the parties. I think that’s kind of an interesting exception, simply because it’s such a broad exception and it could probably capture a number of situations.

Paul Trudelle:  That’s right.  And to deal with that exception, you’d need to get an order of the Court allowing you to use that evidence for the ulterior purpose or for the purpose of the other proceeding. What you would need to do is show the Court that, just as the rule states, that the interests of justice outweigh any prejudice that would result to a party. That is often a sort of a way of saving yourself or allowing you to proceed with the action after the fact. If you obtain evidence through the examination process or the discovery process and there is no other way to get that, you may be able to argue that you have a legitimate interest in using that evidence for the purpose of the subsequent proceeding.

Allan Socken:  From your experience, Paul, is it easy to get that kind of order?

Paul Trudelle:  I think that that’s a very tough thing to do because I think that we have to look at the overriding purpose and the intrusive nature of the disclosure process. People are dragged to the table and forced to disclose their evidence, their documents.  And to allow that sort of fishing expedition to be used to commence another proceeding against another party, I think, is something that the Courts are not going to do lightly. Having said that, if there was no other way to get that evidence, or it’s clear that the evidence ought not to be protected, then the Court, I think, will make that type of an order and allow it to proceed. I think that’s still a very tough order to get, though.

Allan Socken:  Absolutely. I mean, because, I think, in most matters, certainly a Court would be very careful before it goes ahead and grants a rule or grants an order which basically prejudices a party in a certain way.

Paul Trudelle:  That’s right. With respect to the exceptions, there’s another exception.  You can use that evidence to impeach someone’s testimony in another proceeding. So the evidence, if it’s... documents are given in one proceeding, they can be used in another proceeding to impeach testimony. And that’s another exception as set out in the rules.

We were talking, or you mentioned before, the estates context and I think that’s what we should maybe touch on before we wrap up. In the estates context, we usually get an order in a Will challenge, that would allow the parties to obtain evidence on examination or through witnesses. That may be, for example, the evidence of a solicitor who prepared the Will and the instructions that were given to that solicitor. That information may be protected by the rule and it may preclude a party from bringing an action as against a solicitor. There was a case back in 1998 that’s an unreported decision of Giamanco and Zahora that dealt with that very issue. And there, the Court was faced with a motion to consolidate proceedings. There was a Will challenge, there was an action against a solicitor and there was a motion to consolidate.  The solicitor resisted that, as did the parties to the other lawsuit, on the basis that the deemed undertaking rule was breached.  And the Court there dealt with the issue of the deemed undertaking rule.

Allan Socken:  And what’s also interesting about that case was, it cited a decision known as Orfis Realty and D.J. Jewellery of Canada Ltd., which basically says that if you try to use evidence from one proceeding to another, notwithstanding the deemed undertaking rule, that a contempt order can be issued against the party who tries to do that. And notwithstanding that ruling, Justice Mossep in the Giamanco decision did not proceed to make a contempt order in the Giamanco decision.  But the Justice did make mention of the fact that the solicitor, the defendant, could go ahead and try to stay the proceedings. But what’s interesting about it is Justice Mossep didn’t, on its on volition, try to stay the proceeding.

Paul Trudelle:  That’s right.  I think she left it open to the party to bring the appropriate motion in the second proceeding to have it stayed. And I think that’s maybe something we can touch on before we wrap up, which is the remedies where there is a breach of the deemed undertaking rule. You mentioned that contempt was one of them.  And the other was a motion or a staying of the second proceeding or perhaps even a dismissal of that. You think that might be a fair conclusion?

Allan Socken:  Absolutely.

Paul Trudelle:  Okay.  Now how do we, as parties to a litigation, when we’re going to be getting evidence from solicitors, how do we protect the right to pursue an action, if one is advisable, as against the third parties or those people who are giving evidence?

Allan Socken:  Well generally, when we do a Will challenge, in that kind of situation, when we proceed with the order giving direction, which basically sets out the procedure for the litigation, we’ll specifically ask the Court within that order to ensure that this rule, the deemed undertaking rule, doesn’t apply for that litigation.

Paul Trudelle:  And the Court can make an order that the deemed undertaking rule doesn’t apply. Often, in estate matters, we seek that in the order giving directions, usually on the basis that there’s no other way to get that information. The solicitor is…the information that he has can only be produced on a Court order in this proceeding because the person who gave the instructions is deceased. In effect, the parties are stepping into the shoes of that deceased person to get the information.  And on that reasoning, we would argue that the deemed undertaking rule shouldn’t apply and that evidence shouldn’t be protected from an action, if it turns out that such an action is warranted.

Okay, well I think that’s a good, initial discussion with respect to the deemed undertaking rule, and when it can be invoked and the considerations to be taken into account. Thank you very much, Allan.

Allan Socken:  Thanks Paul.

Paul Trudelle:  And just before we go, we welcome your comments and we ask for your comments. You can send us an e-mail at hull.lawyers@gmail.com and send in any comments, your questions or suggestions that you might have.

Allan Socken:  And be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law.

Paul Trudelle:  And we also have a comment line.  You can call us at 206-350-6636, and give us your comments and you might even end up on the air, on our podcast, if you leave a comment.

Well, thanks a lot Allan, that was very good.  It was a pleasure blogging with you this week.

Allan Socken:  Likewise, Paul.

Paul Trudelle:  Podcasting with you, and I look forward to doing this again, thank you.

Allan Socken:  Thanks.

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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