All About Estates

Third Party Appeals of Healthcare Decisions

As reported in the media[i] [ii] [iii], Nova Scotia’s appeals court recently heard a case involving a woman who is trying to stop her husband from receiving medical assistance in dying (MAiD). The woman is appealing a lower court decision that rejected her request for an interlocutory injunction against her husband until the full case can be heard on its merits. The man’s request for MAiD was clinically approved and originally scheduled for July.

The couple are in their 80s and have been married 48 years. While the man says he is suffering and near the end of his life due to advanced chronic obstructive pulmonary disease (COPD), his wife says his request for MAiD is a consequence of anxiety and delusions. They have subsequently separated and are not speaking.

The man was assessed by two nurse practitioners, a respirologist and four physicians, including one psychiatrist, between April and July as part of his request for MAID. The healthcare professionals agreed the man suffers from COPD, depression, anxiety and dementia. All four licensed physicians agreed he was frail and ill enough to qualify for MAID and that he was capable to consent, although there was no consensus on his prognosis. One nurse practitioner and a respirologist said they were not convinced that his COPD would cause a reasonably foreseeable death, a requirement for MAiD. The same nurse practitioner said he was not capable to consent as a result of dementia.

The wife lost her motion to stop her husband from moving forward with his plans for MAiD. The wife has appealed the decision.

In my experience with the Consent and Capacity Board in Ontario, there is no means for a third-party to appeal a finding of intact capacity to consent. The clinical situation that typically results in such a desire is in relation to capacity to consent to long-term care (LTC) placement. For example, a patient with dementia in hospital is found capable to consent for LTC placement and chooses to not apply, much to the chagrin of the substitute decision-maker (SDM) who refuses to accept an alternative discharge plan. The contrary situation is the capable patient in LTC requests a discharge from LTC, once again to the chagrin of the SDM who also refuses to accept an alternative discharge plan. The common element in each case is the dispute between patient and SDM over a finding of intact capacity to consent, similar to the case in Nova Scotia over MAiD.

In my experience, the standard for capacity evaluation remains open to variability and unreliability. There remains a need for improved standardization of capacity evaluation. This is particularly so for the exceptional patient who tends to be elderly with both physical and mental illness intertwined. In such clinical scenarios, the golden rule recommendation is to pursue the expert clinical opinion of a Geriatric Psychiatrist[v]; doctors of exceptional patients.

[i] https://www.cbc.ca/news/canada/nova-scotia/nova-scotia-medical-assistance-in-dying-supreme-court-injunction-1.5691456

[ii] https://torontosun.com/news/national/n-s-woman-in-appeals-court-to-prevent-husband-from-receiving-medical-aid-in-dying/wcm/08c66b43-137a-4ed0-a827-f1746b837411/

[iii] https://www.cbc.ca/news/canada/nova-scotia/nova-scotia-medical-assistance-in-dying-bridgewater-couple-court-1.5700203

[iv] https://marcomm.mccarthy.ca/pubs/ Interlocutory_Injuctions_Practical_Considerations.pdf

[v] Jacoby, R., Steer, P. How to assess capacity to make a will. BMJ 2007; 335:155-7.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: Richard.Shulman@thp.ca

2 Comments

  1. Robert Stewart

    September 1, 2020 - 2:24 pm
    Reply

    Getting one assessed, is a tough decision but it come down to the relationship between the parties. The key question, is what is in the best interest of the individual. This discussion is developed over time. Having gone thru this with my mother, I can understand the torment that she is going thru. I was lucky as my mom had faith in me along with my wide (x ER Nurse) to make the right decision in the best interest of her

  2. Cathy Williams

    September 1, 2020 - 2:57 pm
    Reply

    This is just so heartbreaking and I’m sure we are going to see so much more of this. I was the SDM for my mother and it was so emotionally difficult even once her dementia progressed and I became the primary DM. Now I am dealing with my brother who has schizophrenia but is still considered mentally competent. I know this one will be a very long and challenging journey. Thank you so much for this article.

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