LAW REVIEW: CASES AND OTHER LEGAL REVIEWS
1. In the Matter of the Health Care Consent Act, S.O. 1996, c. 2, Schedule A as amended and In the Matter of FF, a patient at Baycrest Hospital - Complex Continuing Care Toronto, Ontario - Consent and Capacity Board Reasons for Decisions - April 3, 2013
A panel of the Consent and Capacity Board (the "CCB') convened at the request of Dr. Cheryl Korn, a health practitioner, who proposed a treatment for FF and brought a Form D application to the Consent and Capacity Board under Section 35.1 of the Health Care Consent Act (the "HCCA") for directions of the CCB with respect to a wish expressed in a Power of Attorney for Personal Care signed by the grantor and patient, FF in a Power of Attorney document dated February 13, 2003. It is important to note that an application to the CCB under Section 35 of the HCCA to include an application to the CCB under Section 32 by FF with respect to her capacity to consent to treatment proposed by a health practitioner, unless that person's capacity to consent to such treatment has been determined by the CCB within the previous 6 months. The parties to the proceedings included FF, the patient, Dr. Korn, the health care practitioner, AF (FF's son), SF (FF's daughter), and DB (FF's daughter). The hearing was attended by Dr. Korn, AF and DB, SJ attending by teleconference and FF not attending. The panel members included a presiding lawyer member, a psychiatric member and a public member. FF was represented by counsel at the hearing as was Dr. Korn and AF, SJ and DB were represented by counsel as well.
The evidence at the hearing consisted of oral testimony of 7 witnesses, Dr. Korn, AF, SJ, DB, FF's former lawyer, FF's Rabbi and a Rabbi consulted by AF.
FF was an 86 year old widow with 3 children. Until January 24, 2012, FF had been living in the community with a full-time care giver.
On January 24, 2012, FF's condition dramatically changed when she choked on food and suffered cardiac arrest while in Florida, sustaining an anoxic brain injury, leaving her in a vegetative state.
FF was found incapable with respect to all treatments on January 24, 2012 and was subsequently transferred to Toronto Baycrest Hospital.
FF currently has a feeding tube, a tracheostomy and suffers from Alzheimer's, dementia, hypertension and hyperthyroidism.
Dr. Korn became FF's most responsible health practitioner at Baycrest Hospital.
Dr. Korn applied to the CCB primarily to determine whether FF had expressed a prior capable wish applicable to her current circumstances by a Power of Attorney for Personal Care signed May 13, 2003 appointing all 3 of her children as her attorneys for personal care.
FF 's Power of Attorney for Personal Care contained the following provision of concern:
"I hereby instruct that if there is no reasonable expectation of my recovery from physical or mental disability, I be allowed to die and not be kept alive by artificial or heroic measures. I do, however, instruct that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life".
The HCCA, 1996 states that a health practitioner who proposed a treatment for a person shall ensure that it is not administered unless he or she is of the opinion that the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and other person has given consent in accordance with the HCCA. The test for capacity applicable to the proceedings is set out in Section 4(1) of the HCCA, this also an issue before the CCB.
The plan of treatment referenced in the proceedings is set out at Section 2 of the HCCA. Wishes are set out at Section 5 of the HCCA. The provisions applicable to no treatment without consent under the HCCA are set out at Sections 10, 11, 12 and 13.
Those who may give or refuse consent to treatment are governed by the provisions of Sections 21, 35 and 37.1 of the HCCA.
While one of the issues before the Board was whether or not there was evidence that FF was unable to understand the information relevant to making a decision about the treatment in question and whether that evidence established that FF was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment in question, is not the issue I wish to review. Rather, Dr. Korn's application for directions mainly concerned her medical diagnosis of FF being described as in a persistent, vegetative state which could not be improved and that FF would not recover from the severe anoxic brain damage that she suffered as a result of lack of oxygen to her brain. Dr. Korn testified and gave evidence of FF's current condition that she described as showing no evidence of any awareness and required total nursing care. Dr. Korn said that she had no expectation FF would get better, that her brain damage was severe and that FF required suctioning, without which she would die because the brain injury FF suffered prevented her from clearing secretions. The doctor said that the tracheostomy tube allowed staff to suction and clear FF's airways which was required 3 to 4 times each 8 hour shift. The tube allowed FF to breathe more easily. Dr. Korn also testified that FF's feeding tube through her stomach provided FF with hydration and nutrition, without which she would die. The feeding tube and tracheostomy were procedures performed while FF was in hospital in Florida and prior to FF's admission to Baycrest Hospital.
Dr. Korn's position was that a feeding tube and tracheostomy in this case were both artificial and heroic measures and supports.
The doctor said that in her medical opinion, FF had no reasonable expectation of recovery from physical or mental disability.
The doctor testified that if she had known in the beginning about the wishes expressed by FF in her Power of Attorney for Personal Care, she would have considered the current treatments as contrary to FF's wishes.
Dr. Korn acknowledged there was no standard medical definition for "heroic" measures. The doctor said that at times feeding tubes were routinely used and were not always considered heroic measures.
In this case, the doctor's position was that she required direction from the CCB in light of FF's wish in her Power of Attorney and the family's belief that based on FF's religious beliefs as a devote Orthodox Jew, that maybe FF's wishes as set out in the Power of Attorney were not her wishes after all.
Dr. Korn's opinion was that if the tracheostomy tube was removed, FF would die within the day. However, if left in place, it could treat FF palliatively.
The doctor noted that the feeding tube was an artificial measure without which FF would starve to death.
Dr. Korn said that in her medical opinion, FF was suffering from both the physical and mental disability and had no reasonable expectation of recovery and that if the current treatment was not maintained, she would die.
FF's lawyer was a specialist in Trusts and Estates and drew up Powers of Attorney for FF and her husband, originally in December 2001 and thereafter in May 2003 following the death of FF's husband.
FF's lawyer testified that she had no specific recollection of discussion with FF and her husband about the Powers of Attorney documents.
FF's solicitor was able to speak about her usual practice in going through the provisions of the documents with her clients.
FF's lawyer stated that she advised her clients to speak to their doctors about "extreme measures".
Moreover, FF's lawyer said it was not her common practice to discuss religion and she would have noted any discussions about religion. In fact, the lawyer had no such notes about religion.
Though the lawyer had no specific memory of the POA's, she gave evidence that she would have gone through the POA in detail, "clause-by-clause" to ensure that FF understood what was in the document, both in 2001 and 2003.
The lawyer testified that she was certain that before FF executed either Power of Attorney document, she would have gone through them with FF.
As to what the lawyer would have said about an end of life provision in the Power of Attorney, the lawyer said she would tell a client that it was an expression of your wishes and that attorneys would have to apply the wish to a particular circumstance.
The children named as attorneys under the Power of Attorney documents gave evidence of their parent's difficult life in Europe prior to World War II and of their devote Orthodox Jewish beliefs and traditions.
DB, one of the children, expressed shock that her father had the same Power of Attorney for Personal Care as she considered her father definitely a careful man that would have read the Power of Attorney document before signing it.
The children acknowledged during the period of 2001 to 2003 that FF remained a bright woman and independent.
The children noted they were not consulted, nor did they have advance knowledge of their parent's POA documents.
The children consulted their Rabbi and believed that full treatment should be continued for their mother who they saw as stable and not in the final stages of her life.
According to the Rabbi witness, Orthodox Judaism was more adherent to traditions and described FF and her husband as very complete and devoted Jews, totally observant in synagogue and ethics, and that it would be against "the grain" for FF to contravene the tenets of her faith.
The Rabbi said that from an Orthodox Jewish perspective, there was no obligation to prolong life. The Rabbi said that the Orthodox Jewish view was that science was in the service of humanity and that "pulling the plug" was tantamount to taking life, which was not permitted. Moreover, he acknowledged that there were contrary more lenient views in Orthodox Judaism, but that his view was the same as the overwhelming opinion of superior Orthodox Jewish scholars that removing a tracheostomy was akin to taking a life. The Rabbi said in his view, the provision in the POA was such that it left him questioning if FF knew what she was writing and whether or not those were her wishes.
The children questioned the validity of FF's wishes on the basis that the wish as expressed in the Power of Attorney for Personal Care went against the teachings of Orthodox Judaism.
The panel's view was that it was critical to determine whether FF's wishes as expressed in the POA for Personal Care were her wishes and if so, to then determine if the wishes were applicable to FF's current circumstances.
The CCB was satisfied on the evidence including from FF's children and FF's lawyer that FF understood what she was doing through her POA, that she knew and approved of its contents and effects and therefore found that by her POA, FF expressed wishes with respect to treatment as required by Section 5 of the HCCA.
The CCB found there was no evidence of incapacity to execute a Power of Attorney for Personal Care.
The CCB found that FF's lawyer, in terms of drawing up the POA, provided clear, cogent and compelling evidence that FF remained capable with respect to her decision making when her Power of Attorney for Personal Care was drawn up, that FF knew of and approved of the contents of her POA and that the treatment being provided constituted "artificial or heroic measures".
The CCB found FF's instructions and wishes were clear and unambiguous and in spite of the evidence put forward by FF's children and the Rabbis, this did not prevail over FF's express wishes in her Power of Attorney. Finding that FF was incapable of making her own treatment decisions and of feeding herself that FF was being kept alive by artificial measures.
In its conclusion, the CCB found FF was not capable with respect to all treatment and that she expressed a clear and prior capable wish in her Power of Attorney for Personal Care applicable to FF's current circumstances.
The Reasons for Decision were rendered by Michael Newman, Vice-Chair, presiding lawyer member on June 14, 2012.
The Reasons for Decision were appealed to the Ontario Superior Court of Justice and heard by the Honourable Justice Carole J. Brown who rendered her Reasons for Decision on January 11, 2013.
2. Friedberg et al v. Korn, 2013 ONSC 960, Court File No. : 03-58/12, 20130403
The appellants were the 3 children and attorneys for personal care of Mrs. Friedberg.
The decision appealed was the finding by the CCB that Mrs. Friedberg's Power of Attorney for Personal Care dated May 13, 2003 expressed a clear, prior, capable wish applicable to Mrs. Friedberg's current circumstances which required her attorneys to withdraw the treatments then being administered.
The Court reviewed the evidence before the CCB including the evidence of the lawyer summarized at paragraph 21 as follows:
- The end of life clause in the PAPC was the standard boilerplate clause included in her firm's precedent, which was automatically presented to clients seeking a PAPC, as a ninety-nine out of one hundred clients want this clause;
- It was her general practice to draw the client's attention to the end of life clause, although it was not her practice to provide examples to clients respecting the different medical scenarios to which the end of life clause might apply, In the same vein, it was up to their named attorneys for personal care to interpret the ''very general language" in the end of life clause in a particular situation; while she had no independent memory and no notes in this regard concerning Mr. and Mrs. Friedberg, she was certain that she brought the "no heroic measures" provision to the attention of Mr. and Mrs. Friedberg in 2001 and certain that she did the same for Mrs. Friedberg in 2003;
- There were no notes regarding any discussion with Mrs. Friedberg about the end of life clause in either 2001 or 2003. In this regard, the lawyer testified that "I don't have any notes dealing with such a discussion therefore... I would not have had those discussions".
- It was not her practice to canvass her clients' religious beliefs;
- She did not explain to Mrs. Friedberg that the end of life clause would tie the hands of her attorneys or remove their general discretion to make personal care decisions respecting the cessation or continuation of treatment in an end of life scenario; she explained that "this is an expression of your wishes that they will then have to apply to the particular circumstances";
- There were no notes on the end of life clause itself (either in 2001 or 2003), and the bulk of her handwritten notes in 2003 addressed changes made to Mrs. Friedberg's will;
- She did not have any difficulty communicating in English with Mrs. Friedberg; and
- "She testified that heroic" and "artificial" are not legal terms. Rather, they are medical terms that she encouraged her clients to discuss with their physicians.
The lawyer testified that her general practice was to draw her clients' attention particularly to the end-of-life clause in order to ensure that it was what they wanted. The lawyer testified that her general practice would be to explain the provision as being a "wish that no extreme measures be taken, heroic or artificial measures, but that medication be administered to be comfortable". The lawyer also indicated that it would be up to the attorney to interpret the clause in the particular situation.
The lawyer further gave evidence that she would encourage her clients to consult the doctor to explain the impact of the term and the myriad of medical situations in which it might become relevant. The drafting solicitor was clear that it was not her general practice to explain the types of scenarios in which an end-of-life clause might become relevant.
The Court reviewed all of the evidence of the appellants and the Rabbis as well as the CCB's decision.
At paragraph 35, the Court referenced the CCB application of the analysis in Barbulov v Cirone (2009) 176 A.C.W.S. (3d) 1157 (Ont. S.C.J.) (Barbulov), where they held that on reviewing the evidence of the appellants and the lawyer, Mrs. Friedberg understood what she was doing through her POA, that she knew and approved of its contents and effects and that the instructions in the POAPC were clear and unambiguous.
Given that we are awaiting the Supreme Court of Canada decision likely to be released next month in Rasouli (Litigation Guardian of ) v Sunnybrook Health Sciences Centre, 2011 ONCA 482, leave to appeal to SCC granted, 431 N.R. 397 (Rasouli), Justice Brown addressed whether or not it would be preferable to await the pending decision, yet in the undecided though the facts of the two cases were similar that the two cases were sufficiently different such that the ultimate decision by the Supreme Court of Canada in Rezuli will not have any effect on the Friedberg case.
Notably Mrs. Friedberg was represented by counsel before the CCB pursuant to Section 81 of the HCCA.
The issues on appeal were in part jurisdictional concerning the standard of review, and substantively whether the Board erred in holding that Mrs. Friedberg had expressed a clear, prior, capable wish in her Power of Attorney for Personal Care and whether the Board erred in holding that such expressed wish was applicable in her current circumstances.
At paragraph 73, the Court referenced again the case of Barbulov v. Cirone as guidance in assisting the Court to determine the issues before it. The evidence before the CCB in Justice Brown's opinion raised significant doubt as to the reasonableness of the Board's findings. The Court found there was substantial evidence causing doubt that Mrs. Friedberg understood what she was doing through her POAPC and likewise doubt that she knew and approved of the POAPC. The substantive analysis by Justice Brown commences at paragraph 75 of the decision. At paragraphs 80 through 89, the Court addresses the drafting solicitor's evidence pertaining to the end-of-life clause.
At paragraph 88, Justice Brown states as follows in reference to the drafting solicitor's notes:
"She had no notes with respect to any discussions regarding the PAPC, except for the names of those Mrs. Friedberg wished to designate as her powers of attorney. Her evidence regarding her note-taking indicates that if there were no notes, there would have been no discussion. Her only evidence with respect to her meetings with Mrs, Friedberg, particularly with respect to the PAPC and the end of life clause are based on her "general practice". Based on her general practice, she stated that she "would have" discussed the PAPC and the end of life clause when it was first drafted in 2001 and again when it was being signed in 2003. She further stated that her usual practice would be to explain what the document was in detail and that she does not always note that. She testified that the general discussion is a standard discussion and that her notes indicate the final conclusion of the discussion, She admitted that, in this case, the final conclusion, as noted in her file, was simply who would be appointed as powers of attorney. Even if the lawyer adequately drew the end of clause provision to Mrs. Friedberg's attention, there is little or no evidence to suggest that Mrs. Friedberg understood the ramifications of the provision. Indeed, based on her evidence at paragraph 22-24, I find it probable that Mrs. Friedberg would have been left with the impression that her attorneys retained discretion to make all end of life decisions."
In this regard, given the evidence and the drafting solicitor's lack of notes and recollection, Justice Brown found that the CCB erred in placing significant weight on this general practice evidenced and based thereon concluding that the drafting solicitor's evidence was clear, cogent and compelling that Mrs. Friedberg knew of the contents of her POAPC.
Justice Brown's conclusions are as follows:
 While each of these pieces of evidence, viewed individually, may be insufficient to support a finding that the Board erred in law and fact and that its conclusion was unreasonable in result in holding that Mrs. Friedberg expressed a prior capable wish in accordance with the PAPC, I am of the view that all of this evidence, considered together, is sufficiently compelling to raise significant doubt that Mrs. Friedberg knew, understood and approved of the contents and effects of the end of life clause contained in the PAPC. I find that the evidence, taken as a whole, was sufficiently compelling to rebut the presumption (as set out in Barbulov, supra, para. 45) that Mrs. Friedberg knew and approved of the end of life clause contained in that PAPC. I find, having considered all of the evidence, that the Board's finding to the contrary was an error in law and fact and unreasonable in result.
[I00] While the Board acknowledged the existence of some of the important extrinsic evidence relevant to ascertaining whether Mrs. Friedberg expressed a prior capable wish, I find that the Board erred in failing to properly consider and appreciate its contextual importance to the ultimate issue, leading to a decision that fails to "fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, supra, para. 47.
 The Board did not sufficiently consider the possibility that the presumption created by an end of life provision can. be overborne by other compelling evidence, and did not adequately recognize the enhanced level of certainty required in the current circumstances given the grave consequences of its decision on Mrs. Friedberg (Starson v. Swayze, supra, para. 77; Stetler, supra). Simply put, the written wishes communicated in a PAPC do not automatically prevail (as stated by the Board); rather, they create a presumption that those are the wishes of the grantor, which can be rebutted by compelling extrinsic evidence to the contrary.
 Accordingly, I find that the Board erred in its conclusion, based on its assessment of the whole of the evidence before it, that the PAPC, and the end of life clause contained therein, expressed Mrs. Friedberg's prior capable wish applicable to the circumstances. I find that the Board's decision was unreasonable. I find that the presumption of validity arising from the existence of the end of life clause in the PAPC and Mrs. Friedberg's opportunity to read the PAPC and her signature thereon, is displaced or overborne by the significant evidence before the Board which causes me to conclude that it was unreasonable for the Board to conclude, from the whole of the evidence before it" that the PAPC signed by Mrs. Friedberg expressed her prior capable wish as applicable to the circumstances.
Whether the Board Erred In Concluding That Such Expressed Wish in the PAPC Was Applicable in Mrs. Friedberg Current Circumstances
 Given the above regarding the Board's finding, it is unnecessary to determine the applicability to Mrs. Friedberg's circumstances at the time of the hearing.
 I will, nevertheless, provide my decision in this regard. I find that the Board also erred in law and fact and was unreasonable in result in determining that the prior capable wish in Mrs. Friedbe1's PAPC was applicable to her circumstances at the time of the hearing.
 Dr. Korn's recommendation was to maintain the tracheostomy and feeding tubes because their removal would trigger Mrs. Friedberg's painful and difficult demise and that these measures, including the antibiotics, which were given as necessary, were not heroic or artificial. While Dr. Korn admitted that the measures were "heroic" and "artificial, when they were initially inserted into Mrs. Friedberg in Florida, it was her evidence that maintaining the current measures is not "heroic", or "'artificial".
 Although Dr. Korn admitted that the medical definition of "artificial or heroic measures" is subjective and that different doctors consider different measures "artificial'' or ''heroic" in different circumstances, the Board erred in dismissing Dr. Korn's views and replacing them with a dictionary definition of "artificial". For the reasons set forth herein and above, at paragraphs 78-82, I find that, in this regard, the Board erred.
 Accordingly, based on all of the foregoing, I order that the decision of the Board be quashed and that, in its place, this Court finds that Mrs. Friedberg did not express a prior capable wish in the PAPC and, therefore, that there was no prior capable wish applicable to her circumstances.
Arguably the standard of care for lawyers drafting and taking instructions for Powers of Attorney for Personal Care could be expanded as a result of this case. We will have to wait and see in future cases as to whether or not this is the case. The CCB accepted the lawyer's standard practice as evidence that she must have brought the no heroic or artificial measures provision to the attention of the client drafter. However the judge summarized the evidence of her religious beliefs and Mrs. Friedberg's lack of facility with English as sufficient to rebut the Barbulov per above presumption that the grantor knew what was in it.
Mrs. Friedberg's religious values summarized by Justice Brown at paragraphs 90 through 95 in which Justice Brown opines the evidence raises doubt as to Mrs. Friedberg's understanding of the contents and effects of the end-of-life clause.
What is ever apparent is the importance of carefully expressing wishes in Power of Attorney for Personal Care documents or other care plans as well as making sure that one's appointed attorneys understand what the wishes of the grantor are, such that the attorneys may carry out such wishes.
For further comment, analysis and drafting tips, see above-referenced article by Mark Handelman, entitled: "End of Life Decisions: What do Lawyers Owe Their Clients?" Link to article