Wednesday, March 25, 2015

New Societies Act Introduced in British Columbia Legislative Assembly

The Government has introduced a new Societies Act in the Legislative Assembly. Bill 24 incorporates many of the recommendations made by the British Columbia Law Institute's Report on Proposals For a New Society Act, which can read here.

Tuesday, March 03, 2015

Court of Appeal Dismisses Appeal in Bentley v. Maplewood Seniors Care Society

In reasons for judgment released today in Bentley v.Maplewood Seniors Care Society, 2015 BCCA 91, The British Columbia Court of Appeal has upheld Mr. Justice Greyell’s decision dismissing a petition brought by Margaret Anne Bentley’s family seeking declarations requiring the care facility she was in to discontinue providing food and water to her.

I have written about Mr. Justice Greyell’s decision in greater depth in my previous post here, but in a nutshell Mrs. Bentley is suffering from the final stages of Alzheimer’s disease, and is incapable of communicating, walking, meeting her own care needs, or eating. She is offered nutrition by staff placing a spoon to her mouth. If she opens her mouth, she is given the food. If not, she is prompted a second time, but if she still does not accept the food, the staff do not attempt to force her to eat. Based on her communications at a time when she was clearly capable of making her own decisions, her family were of the view that she would not wish to be kept alive on this basis.

In the Supreme Court of British Columbia, Mr. Justice Greyell applied the presumption that a person is capable of making his or her own personal care decisions, and found that the family had not rebutted the presumption that Mrs. Bentley, despite her limitations, was capable of deciding whether to eat and drink when she either opened her mouth or kept her mouth closed when prompted.

Mr. Justice Greyell also considered whether British Columbia’s substitute decision making statutes authorized a substitute decision maker to make a decision to refuse personal care necessary to preserve life, and concluded, that in contrast to health care in some circumstances, the legislation did not allow a substitute decision maker to refuse personal care if doing so would cause the person to die.

The family members who had petitioned the Court appealed on the following grounds:

A.         The learned Chambers Judge erred in law by failing to address whether [Mrs. Bentley] had consented to the process of “prodding” and “prompting” that precedes her being fed by Maplewood.

B.         The learned Chambers Judge erred in law by placing the onus on [Mrs. Bentley] to prove a “clear refusal of consent”, rather than placing the onus on Maplewood to prove consent by [Mrs. Bentley] to being “prodded” and “prompted”.

C.        The learned Chambers Judge erred in law by failing to find that, in the absence of consent to the process described above, a battery is committed by Maplewood when it prods and prompts [Mrs. Bentley].

A person commits the tort of battery if he or she touches another in a non-trivial manner without the other’s consent.

Madam Justice Newbury for the Court of Appeal rejected all three grounds, finding that Mr. Justice Greyell did at least implicitly find that she was consenting, communicating her consent through her behaviour in accepting or not accepting nutrition. She also rejected the argument that the Mr. Justice Greyell placed the onus on the Petitioners to prove that Mrs. Bentley did not consent.

The Court of Appeal decided this case on the relatively narrow grounds that the evidence supported Mr. Justice Greyell’s finding that Mr. Bentley is consenting to the provision to her of food and water. The Court of Appeal did not expressly decide whether the balance of his reasons deciding that Mrs. Bentley’s family could not require the care facility to stop providing her with nutrition in this manner even if she were incapable of deciding whether to accept the provision of food and drink.

Madam Justice Newbury wrote at paragraph 18:

[18]        In closing, I emphasize again that the scope of this appeal was a narrow one and that none of the chambers judge’s conclusions regarding the documents executed by Mrs. Bentley, the applicability of the various statutes to them, or the determination of her wishes was appealed. I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes. It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada(Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the “clear consent” of the patient. (Para. 127.)

Sunday, March 01, 2015

Restrictions on Who May File a Notice of Dispute

One of the changes made to British Columbia’s rules governing probate procedures that came into effect on March 31, 2014, was the replacement of caveats with notices of dispute. One of the main purposes of both caveats under the former rules and notices of dispute under the new rules is to prevent the court from issuing a grant of probate of a will for a period of time to allow someone who wishes to challenge the validity of the will to do so.

I have already written about the new notice of dispute in Rule 25-10 of the Supreme Court Civil Rules, but I confess I had over looked a significant change. The new rule appears to contemplate that only those who are entitled to notice of an application for an estate grant may file a notice of dispute.
Subrule 25-10 (1) says:

Notice of dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

Although subrule (1) does not expressly say that only those who are entitled to notice under Rule 25-2(2) may file a notice of dispute, subrule (3) states that the notice of dispute must state that he or she is entitled to notice:

Contents of notice of dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

Who is entitled to notice under Rule 25-2 (2)? To apply for an estate for a will, the applicant must provide the notice to any other executor with an equal or prior right to apply, all of the beneficiaries of the will, and anyone who would receive a share of the estate of the will-maker had died without a valid will. Anyone who falls into one of those categories may file a notice of dispute if he or she does not think the will is valid.

But what if you are a beneficiary of a prior will, you believe that the will-maker did not have capacity to make a later will (or perhaps I should say alleged will), but you do not fall within one of the categories of people entitled to notice? It would appear that because of this restriction, you cannot simply file a notice of dispute, despite the fact that you have an interest in challenging the later will. This restriction was pointed out to me by my friend and colleague Michelle Rosser, who is also one of the lawyers in the case I will refer to shortly.

If you are not within a category of people entitled to notice, you may apply to court add you as a person entitled to notice under Rule 25-2 (14)(a), which says:

Court may alter or dispense with notice

On application, the court may do one or both of the following to avoid any prejudice that would otherwise result to the intended applicant, to another person or to the estate:
(a) vary the classes of persons to whom documents referred to in subrule (1) are to be delivered;

If the court makes the order, then as a person entitled to notice, you may then file a notice of dispute.

This is what Ms. Rosser and her client did in the first reported case dealing with this issue: Re Dow Estate, 2015 BCSC 292.

Dalton George Dow named Joanne Golos as a beneficiary in a will he made in February 2013, but not in a later will made in April 2014, which I will refer to as the 2014 Will. Ms. Golos questioned whether Mr. Dow had the necessary capacity to make the 2014 Will and whether he was unduly influenced by others to cut her out. She wished to file a notice of dispute so that she would have an opportunity to investigate the merits of her claim before the named executor of the 2014 Will received probate, and potentially distributed the estate, thereby defeating her claim.

But Ms. Golos was not an executor or beneficiary of the 2014 Will, nor would she receive a share of Mr. Dow’s estate if he had left no will.

Ms. Golos applied under Rule 25-2 (14)(a)to be added as a person to whom Mr. Cosar had to give notice so that she would have the right to file a notice of dispute. Mr. Cosar argued that there was no merit to her claim, and that the effect of allowing her to file a notice of dispute was to tie up the estate for up to a year or longer.

Master Harper heard the application, and granted the order adding Ms. Golos as a person to whom Mr. Cosar had to give notice of his application to probate the 2014 Will, thereby allowing her to file a notice of dispute. Master Harper held that it was not appropriate to consider the merits of Ms. Golos’ claim. The issue was whether there was prejudice to Ms. Galos if she were not added as a person to whom notice had to be given. The Master found that there would be prejudice to Ms. Golos if she did not make the order. Master Harper wrote at paragraph 15:

[15]         The applicant has met the threshold required by Rule 25-2(14). There is a risk that if she is not included in the class of persons entitled to receive information about the estate and to file a notice of dispute, she will be prejudiced. The prejudice is the risk that Mr. Cosar will be granted probate and the estate will be distributed before the applicant’s claim can be assessed. That prejudice outweighs the possible delay in the distribution of the estate.

This decision is surely correct, but begs the question, why was this restriction on notice of disputes made in the first place? Before the rule changed, any person with an interest in the question of whether a will was valid could file a caveat. Now someone in Ms. Golos position must first make an application to court, significantly adding to the expense of disputing the will.

What if Ms. Golos had not been successful, and probate issued? She could still have applied to court to revoke the grant of probate on the grounds that Mr. Dow did not have capacity or that he was unduly influenced. Once the application is filed, the executor would be required to return the original grant to the court registry pursuant to Rule 25-5 (5)(b). The executor would have been put through the cost of applying for the grant, only to have to return it, pending resolution of the litigation. The result would be further costs, and delay.

I note that restricting the right to file a notice of dispute to those entitled to notice of the probate application was not one of the recommendations made in the British Columbia Law Institute Report on New Probate Rules, on which many of the new rules were modeled. I assume someone in government thought this restriction a good idea, but I cannot see any benefit to this restriction, and the Rule should be amended to allow anyone with an interest under a previous will to file a notice of dispute, whether or not he or she would be entitled to notice of the application for an estate grant.

Sunday, February 22, 2015

British Columbia Law Institute Report on Terminating a Strata

The British Columbia Law Institute  has just published its Report on Terminating a Strata recommending reform of the Strata Property Act provisions allowing a strata to wind up its strata corporation and cancel the strata plan.

Under current legislation, there are very stringent requirements that must be met before a strata may be terminated. The Strata Property Act requires a unanimous vote to terminate a strata, which effectively requires that all owners consent. On an application authorized by three-quarters of the votes, the court may allow a termination in very limited circumstances despite dissenting votes. Pursuant to section 52 of the Strata Property Act, if a strata corporation is comprised of 10 or more strata lots, and the vote in respect of one strata lot, or if more than one strata lot, “the court may, if satisfied that the passage of the resolution is in the best interests of the strata corporation and would not unfairly prejudice the dissenting voter or voters, make an order providing that the vote proceed as if the dissenting voter or voters had no vote.”

For most termination applications, the consent of the mortgagees and other registered charge holders is also required.

Why would the owners want to terminate their strata? One of the reasons is that as buildings age, they may become obsolete. The cost of repairs and maintenance of apartments and other buildings may become disproportionately high in comparison to what the owners might be able to receive if the strata is terminated and the property sold for redevelopment.

If the threshold for terminating a strata is too high, there is a risk that a small minority may unreasonably withhold consent to termination in circumstances where it is clearly in the best interest of the owners as a whole to terminate.

On the other hand, too low a threshold may be unfair to those who disagree with the majority, particularly for the owners of residential strata lots who occupy their units, for whom termination will require finding a new residence.

In the Report, the Strata Property Law (Phase Two) Project Committee, chaired by Patrick Williams of the law firm Clark Wilson LLP, sought to balance the collective interests of a strata, with the need to provide safeguards for minority dissenting owners and charge holders.

The Report recommends that the threshold for terminating a strata be lowered to 80% of the eligible votes. The consents of charge-holders would not be required. On the other hand, unless the strata consists of fewer than five strata lots (in which case the 80% threshold would effectively require unanimity), the strata corporation would also require court approval to terminate the strata. The requirement for court approval would give any dissenting owners, and holders of charges registered against the land the opportunity to oppose the termination. The court would then have to determine whether the termination is in the best interests of the strata corporation.

The Report contains a detailed analysis of the relevant provisions of the Strata Property Act and earlier British Columbia legislation, a comparison of the law in other jurisdictions, a discussion of the policy implications, and 21 specific recommendations. 

Friday, February 13, 2015

Estate of Young: Curative Provisions of Wills, Estates and Succession Act.

We now have a reported case applying the new British Columbia legislation allowing the court to give effect to a document or other record as a will even though it does not comply with the formal signing and witnessing requirements for a valid will. This curative provision is section 58 of the new Wills, Estates and Succession Act, and I have written about it before.

The case is Estate of Young, 2015 BCSC 182, and Madam Justice Dickson released her reasons for judgment on February 6, 2015. It is significant because it is the first precedent in British Columbia, and the approach Madam Justice Dickson took to section 58 will likely influence future cases.

Sharone Young made her will on March 2, 2009, in which she appointed The Canada Trust Company as her executor. One clause in the will instructed the executor to dispose of articles of personal, domestic and household use or ornament in accordance with a memorandum that she would leave with her will.

The March 2, 2009 will was properly signed and witnessed, and there was no question about the validity of it. But The Canada Trust Company, through its lawyer John Bilawich, asked the court whether two later documents represented her testamentary intentions, and should be given effect as though they were part of her will.

Madam Justice Dickson described the first document as follows:

[9]             The June 17 Documents has two pages.  The first page is headed "Sharone Young" and "June 17, 2013", followed by the words:

Distribution of furniture, art, antiques, jewelry, sculptures, First Nation masks etc. This is being prepared if I have not sold, given in advance of death.

Thereafter, six people, described as beneficiaries, are named and, under each name, several items of personal property are listed.  The final words on the first page are:

If items not taken buy any of the beneficiaries provide to sell - Maynards Auction, Consignment shops in West Vancouvers including antiques and designer clothes, mink coat.  Maynards would be good resource for items they do not sell for auction.

There are items not named that could be the choice of named beneficiaries.

[10]         The first page of the June 17 Document is signed by Ms. Young.

[11]         The second page of the June 17 Document begins with the words "Beneficiary Contacts Information".  Thereafter, the following words appear:

For physical items in home or safety deposit box (jewelry for Kelly Young)) Bank of Montreal, Main and Mountain Hwy, North Vacouver, BC.  It is my intention to give before my passing.

[ list of names and contact information ]
Money for estate to provide through Will:

[ list of names of individuals and organisations ]

This is being provided as a caution.  Zach and Faren can be responsible, with help, once old enough to be responsible.

On that same day, Ms. Young showed an unsigned copy of the June 17 Document and asked her to help assist with distributing items to people who wanted them, and find places for the remaining items.

With respect to the second document:

[13]         The October 15 Document has one page.  Ms. Young's address and the date appear at the top of the page, followed by these words:


This will serve to confirm, I have requested Nancy Sunderland of 1920 Riverside Dr., North Vancouver, BC to distribute to named beneficiaries household effects including art, all antiques, all furniture.  Specific items have been identified for specific beneficiaries.  As well, beneficiaries may also choose other items not named for them for the rest.

Because Zach and Faren Cross-Nadeau are the youngest, they may have first choice of unnamed items.  Jefferey Young and then the others based upon age for fairness.  Items not taken by all beneficiaries are to be consigned, sold or auctioned on behalf of the estate.

Ms. Young did not sign the October 15 Document.

If finding that the June 17 Document, but not the October 15 Document, represented Ms. Young’s testamentary intentions and should be given effect, Madam Justice Dickson applied the approach of the leading Manitoba Court of Appeal case on Manitoba’s curative legislation, George v. Daily (1997), 143 D.L.R. (4th) 273, a case I wrote about here.

Madam Justice Dickson summarized the approach as follows:

[34]         As is apparent from the foregoing, a determination of whether to exercise the court's curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.  Two principal issues for consideration emerge from the post-1995 Manitoba authorities.  The first in an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased's testamentary intentions, as that concept was explained in George.

[35]         In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death.  A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker.  Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]         The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky [v. Sawatzky, 2009 MBQB 222] at para. 21; Kuszak [v. Smoley, [1986] M.J. No. 670 (Q.B.)] at para. 7; Martineau [v. Myers Estate, [1993] M.J. No. 339 (Q.B.)] at para. 21.

[37]         While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention:  George at para. 81.

The factors that lead Madam Justice Dickson to conclude that the June 17 Document represented Ms. Young’s testamentary intentions were that the language conveyed “an air of finality,” that it was generally consistent with the provisions of her will, that she signed it and left it on her dining room table where it could be found by others, and that she showed an unsigned copy to her neighbour and sought her assistance in carrying out Ms. Young’s wishes.

In contrast, the October 15 Document did not constitute a disposition, but contained an expression of Ms. Young’s non-binding wishes. She did not sign it, nor was there evidence that she showed it to anyone. 

Saturday, February 07, 2015

Supreme Court of Canada Holds Absolute Prohibition of Physician-assisted Dying Unconsitituional

In a unanimous decision released yesterday, in Carter v.Canada (Attorney General), 2015 SCC 5, the Supreme Court of Canada held “that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” 

The Supreme Court of Canada suspended the declaration of invalidity for 12 months in order to give the federal and provincial governments time to regulate physician-assisted deaths.

The case was brought be several plaintiffs, including Gloria Taylor who “was diagnosed with a fatal neurodegenerative disease, amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness.  ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe.” She did not want to die a slow, painful, death, nor did she want to take her own life violently, while she was still physically capable of doing so, but before she wanted to die. She set out her wishes as follows: 

I do not want my life to end violently.  I do not want my mode of death to be traumatic for my family members.  I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.

I know that I am dying, but I am far from depressed.  I have some down time - that is part and parcel of the experience of knowing that you are terminal.  But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy.  I will not waste any of my remaining time being depressed.  I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality.  There will come a point when I will know that enough is enough.  I cannot say precisely when that time will be.  It is not a question of “when I can’t walk” or “when I can’t talk.”  There is no pre‑set trigger moment.  I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile.”  When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good‑bye and obtain final closure - for me and for them.

My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives.  I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. . . .
[. . .]
 . . .  What I fear is a death that negates, as opposed to concludes, my life.  I do not want to die slowly, piece by piece.  I do not want to waste away unconscious in a hospital bed.  I do not want to die wracked with pain.

The Criminal Code of Canada prohibits a physician, or anyone else, from assisting a person to commit suicide. The key provisions are section 14 and section 241, which read as follows:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

241. Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Ms. Taylor, and the other plaintiffs, Lee Carter, Hollis Johnson, Dr. William Shoichet, and The British Columbia Civil Liberties Association brought a claim in the Supreme Court of British Columbia, challenging the prohibition on physician-assisted dying.

One of the difficulties the plaintiffs faced was that in 1993, the Supreme Court of Canada in a majority decision rejected a constitutional challenge to section 241(b) of the Criminal Code brought by a lady who also suffered from ALS. The decision is Rodriguezv. British Columbia (Attorney General), [1993] 3 S.C.R. 519. A decision of the Supreme Court of Canada is binding on all other Canadian courts.

Madam Justice Lynn Smith, in the Supreme Court of British Columbia held that it was open to her to reach a different conclusion than in Rodriguez for two reasons. First, in subsequent decisions, the Supreme Court of Canada modified the approach to be taken in determining whether a law offends a key provision, section 7, of the Canadian Charter of Rights and Freedoms. Secondly, there was a great deal more evidence about physician-assisted dying before her than had been available in Rodriguez, including evidence about regulations and safeguards from abuse in other jurisdictions that do permit physician-assisted dying, notably Washington and Oregon, Netherlands, Belgium, Switzerland, Luxembourg and Columbia.

After considering a great deal of evidence on physician-assisted dying, Madam Justice Smith held that the prohibitions were unconstitutional. Her reasons for judgment are at 2012 BCSC 886.

The majority of the British Columbia Court of Appeal (Chief Justice Finch dissenting) allowed the appeal, holding that Rodriguez was binding authority. The Court of Appeal decision is at 2013 BCCA 435.

The Supreme Court of Canada disagreed with the majority in the British Columbia Court of Appeal and held that it was open to Madam Justice Smith to reconsider Rodriguez because of the change in the Supreme Court of Canada’s conception of section 7 of the Charter, and also the difference in the evidence of the social and legislative facts before the Court in Carter.

The Supreme Court of Canada held that the prohibition violates section 7 of the Charter, which reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In analyzing section 7, the Court first considered whether the prohibition impinges “life, liberty and security of the person.” The second question is whether the impingement is “in accordance with the principles of fundamental judgment.”

The Supreme Court of Canada agreed with Madam Justice Smith that the prohibition impinges on life because it had the effect of forcing some people to take their own lives prematurely while they were still physically capable.

The Supreme Court of Canada also agreed that the prohibition on physician-assisted dying also limited liberty and security of the person:

[66]                          We agree with the trial judge.  An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy.  The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying.  This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty.  And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.

Having found that the prohibition impinges life, liberty and security of the person, the Supreme Court of Canada then looked at whether it did so in accordance with the principles of fundamental justice. There are of course limitations on life, liberty and security of the person that are constitutional, as long as those limits are in accordance with the principles of fundamental justice.

The principles of fundamental justice require that “laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.” The Supreme Court of Canada again agreed with Madam Justice Smith that the object of the prohibition on assisted dying was “to protect vulnerable persons from being induced to commit suicide at a time of weakness….”

In this case, the Supreme Court of Canada held that the prohibition, while not arbitrary, is overbroad. The question is whether the law “goes too far by denying the rights of some individuals in a way that bears no relation to the object….” The prohibition is overbroad in infringing on the rights of people who are not vulnerable.

[86]                          Applying this approach, we conclude that the prohibition on assisted dying is overbroad.  The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness.  Canada conceded at trial that the law catches people outside this class:  “It is recognized that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives” (trial reasons, at para. 1136).  The trial judge accepted that Ms. Taylor was such a person — competent, fully-informed, and free from coercion or duress (para. 16).  It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons.  The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.

After the Court found that the prohibition infringed on section 7 of the Charter, the Supreme Court of Canada considered whether the prohibition was saved by section 1 of the Charter which reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Court set out the tests as follows:

[94]                          In order to justify the infringement of the appellants’ s. 7  rights under s. 1  of the Charter , Canada must show that the law has a pressing and substantial object and that the means chosen are proportional to that object.  A law is proportionate if  (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law:  R. v. Oakes, [1986] 1 S.C.R. 103.

Although the prohibition is rationally connected to the object of protecting vulnerable persons from being induced to commit suicide at a time of weakness, the Supreme Court of Canada held that it failed the test of minimally impairing the rights to life, liberty and security of the person. The decision is based on Madam Justice Smith’s findings of facts that vulnerable persons could be protected without the need of an absolute prohibition on physician-assisted dying. I quote again from the Supreme Court of Canada decision:

[104]                      This question lies at the heart of this case and was the focus of much of the evidence at trial.  In assessing minimal impairment, the trial judge heard evidence from scientists, medical practitioners, and others who were familiar with end-of-life decision-making in Canada and abroad.  She also heard extensive evidence from each of the jurisdictions where physician-assisted dying is legal or regulated.  In the trial judge’s view, an absolute prohibition would have been necessary if the evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients; that physicians fail to understand or apply the informed consent requirement for medical treatment; or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope, leading to the casual termination of life (paras. 1365-66).

[105]                      The trial judge, however, expressly rejected these possibilities.  After reviewing the evidence, she concluded that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error.  While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them:

My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced. [para. 883]

[106]                      The trial judge found that it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process (paras. 795-98, 815, 837 and 843).  In reaching this conclusion, she particularly relied on the evidence on the application of the informed consent standard in other medical decision-making in Canada, including end-of-life decision-making (para. 1368).  She concluded that it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity (para. 831).

Twelve months from now, physician-assisted dying will be permitted in Canada for competent adults, who clearly consent, and “who have a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” 

Gloria Taylor passed away before the Supreme Court of Canada’s decision.

Sunday, February 01, 2015

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers

Lawyers are required to make assessments of their clients’ capacity to make legal decisions, and sign legal documents. This is especially true in a wills and estates practice, which will often include incapacity planning, such as making enduring powers of attorney, and applications to court for guardianship of adults.

In my experience, assessing capacity is one of the most difficult challenges estate-planning lawyers face. Few of us lawyers have any training in medicine, psychiatry or psychology. We may often fail to identify significant cognitive or other disability, or fail to understand the implications of signs of diminished capacity. On the other hand, lawyers can’t delegate the decision about whether or how to proceed with a legal transaction to those who do have clinical training and experience. The criteria for capacity are legal, and few physicians or psychologists have legal training. Furthermore, in the end, it is the lawyer who has to exercise his or her judgment. For example, the lawyer must decide whether to draft and witness the will if the lawyer has questions about the client’s capacity.

I have just finished reading Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, published by the American Bar Association Commission on Law and Aging and the American Psychological Association in 2005. It is a useful resource for Canadian estate-planning lawyers as well as American. The Handbook is available online here.

The Handbook offers practical guidance for lawyers faced with questions about clients’ capacity. The Handbook considers the following questions:

1.   What are legal standards of diminished capacity?
2.   What are clinical models of capacity?
3.   What signs of diminished capacity should a lawyer be observing?
4.   What mitigating factors should a lawyer take into account?
5.   What legal elements should a lawyer consider?
6.   What factors from ethical rules should lawyer consider?
7.   How might a lawyer categorize judgments about client capacity?
8.   Should a lawyer use formal clinical assessment instruments?
9.   What techniques can lawyers use to enhance client capacity?
10. What are the pros and cons of seeking an opinion of a clinician?
11. What if the client’s ability to consent to a referral is unclear?
12. What are the benefits for the lawyer of a private consultation with a clinician?
13. How can a lawyer identify an appropriate clinician to make a capacity assessment?
14. What information should a lawyer provide to a clinician in making a referral?
15. What information should the lawyer look for in an assessment report?
16. How does a clinical capacity evaluation relate to the lawyer’s judgment of capacity?

The appendices include a capacity assessment algorithm for lawyers, two case studies, a guide to psychological and neuropsychological instruments, and an overview of dementia.

The American Bar Association Commission on Law and Aging and the American Psychological Association has also published a companion paper (which I have not read) entitled, Assessment of Older Adults with DiminishedCapacity: A Handbook for Psychologist.