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Cases

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imissyou419's version from 2017-10-20 03:24

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R. v. J.(S.).a couple was charged with: aggravated assault; failing to provide the necessaries of life to their child in necessitous circumstances, and failing to provide the necessaries of life to their child thereby endangering his life;
child lived with his grandparents in India and brought back to Canada to live with his parents;
Admitted to the hospital after suffering a seizure at home.
Evidence was not conclusive regarding when the child had suffered the injuries that resulted in significant scarring and healed fractures so charges of aggravated assault had to be dropped. No sufficient evidence to prove the couple's failure to seek medical attention endangered the child's life. Doctors agreed when child entered hospital, he was malnourished and anemic, had vit C levels consistent with scury, 3 open wounds, skin condition that needed transfusions, scarring all over body;
couple convicted of failing to provide the necessaries of life to their child who was in necessitous circumstances b/c they failed to get their son obviously needed medical treatment in weeks between his arrival in Canada and his hospital admission
Neto v. KlukachMs. Neto was diagnosed in her teens are having bipolar disorder and had been on Lithium for many years
During her last hospital admission, Ms. Neto objected to the anti-psychotic drugs
Her doctor found her incapable of making treatment decisions. His conclusion was based on her refusal to acknowledge that she had bipolar disorder or was currently manic, and her delusional beliefs about Lithium CCB upheld doctor's decision.
Board found that while Ms. Neto was able to understand the information relevant to her treatment, she did not have the ability to appreciate the reasonably forseeable consequences of consenting or refusing consent
Court adopted 3 indicators:
1. while patient need not admit that they are mentally ill, they must be able to acknowledge that they are affected by manifestations of what others call a mental illness. Ms. Neto did not describe herself as mentally ill but acknowleged she was different and Lithium stabilized her symptoms
2. Patients must be able to assess how the proposed treatment and its alternatives, including no treatment, could affect their quality of life. Ms. Neto could assess the impact of her decision, which was based on her previous negative experiences
3. Patient's decision must not be "substantially" based on delusional thinking. Ms. Neto had delusional thoughts but this was not the basis of her objections to the medication. Ms. Neto had been given anti-psychotic medications that made her outwardly calmer and more coherent, she reiterated her opposition to the medication
Court concluded Ms. Neto had the ability to appreciate the consequences of her decision and granted her appeal
Park v ParkMrs. Park appointed her husband as her POA for personal care and 1 of her daughters as her POA for property
Next year, Mrs. Park moved out of matrimonial home to live with 1 of her other children
She commenced an action to sell the home and seek an accounting for the withdrawals that her POA made from her bank account and other assets
Mr. Park sought a court order to have his 77 year old wife declared mentally incapable and to have himself appointed as her guardian of personal care and property. He claimed she had been taken from the matrimonial home against her will and unable to make her own personal and financial decisions. Mrs. Park denied she was incapable and began divorce
Court stated that a person's right to make personal care and financial decisions should only be removed in the clearest of cases. Mrs. Park may have had health problems limited her capacity, no present evidence of such condition. 4/5 her children submitted affidavits attesting Mrs. Park's capacity as did the paralegal who prepared her new powers of attorney. Capacity assessor indicated Mrs. Park had shown a clear understanding of her financial decisions and an appreciation of why her decisions were correct
Re DueckTD, 13 year old boy, diagnosed with cancer. His physicians recommended chemotherapy and amputation of his leg - 65% recovery
TD's parents refused consent
Court order was issued finding T.D. to be a child in need of protection and granting the Minister of Social Services authority to make decisions on TD's behalf. Proposed chemotherapy treatments were initiated
TD told his doctor that he did not want any further chemotherapy or surgery
Minister of Social Services sought a court hearing to determine if the protection order should be extended or terminated
TD believed his father, who told him that God would heal him and there was a non-surgical treatment in Mexico with 90% cure rate - not medically recognized
Psychologists and psychiatrist indicated TD had no developmental impairments but he was less mature than average 13 year olds, his father was dominating authority figure
Court determined if TD was mature minor (i.e. competent) then his wishes would have to be respected
- Court considered TD's age and maturity, extent of TD's dependence on his parents, complexity of treatment
- given influence of TD's father and TD's misguided father in a non-existant cure, he was not able to understand the relevant medical information or appreciate the consequences of the proposed treatment
- TD was not a mature minor and an order was made extending Minister's authority to make medical decisions on his behalf
Cancer spread to TD's lung and further legal proceedings halted; parents took him to a Mexican clinic and he died returning to Canada
Janzen v. JanzenE.J. 43, fell into a persistent vegetative state after suffering sudden bout of severe angio edema
Doctors advised his wife and family that there was no prospect of recovery, recommended life support removal
EJ's wife of 12 years wanted to follow doctor's recommendations but EJ's sister wanted to temporarily delay the decision in homes his condition might improve
EJ's sister applied to the court to be appointed temporary guardian of personal care for 45 days, EJ's wife submitted counter application
Court
- acknowledged both had EJ's best interests at heart but wife's guardianship plan was more likely to achieve that goal
- Court defined term "well-being" to include the patient's quality of life
- Court noted wife's plan was in accordance with EJ's previously expressed wish not to have his life artificially prolonged if there was no prospect of recovery, no evidence that medical intervention would improve EJ's condition or quality of life, wife's approach was less intrusive and more comfortable for EJ
Hamilton Health Sciences Corp v. DHMother of 11 year old girl withdraw her from chemotherapy at Hamilton Health Sciences Centre to pursue an "alternate cancer treatment" in Florida
Girl incapable, her mother is her SDM
Doctor testified that she had 90-95% cure rate with continued chemotherapy, not aware of any child surviving leukemia without chemotherapy
Child's Aid Society refused to intervene, Hamilton Health Centre applied for protection order under Child and Family Services Act, declaring child to be a child in need of protection and requiring the Society to bring her to a place of safety
"child in need of protection" - situations in which a child's parent or guardians refuse consent to needed medical treatments for him/her

Court
- refused to issue requested order
- stated the girl was not in need of protection b/c her mother was a "caring loving parent" and was acting in accordance with her culture and beliefs as a Six Nations Band member, mother's decisions was protected under Constitutions Act which recognized and affirms Aboriginal and treaty rights

Issues with decision:
- alternative cancer treatment in Florida not based on traditional Aboriginal beliefs and there was no basis for believing it would be of any meidcal or other benefit
- SCC unamimously held that treatment decisions must be made exclusively in an incapable patient's best interests and the interests of others not to be considered; Mother's cultural heritage and beliefs were irrelevant in making treatment decisions for the child
- "caring loving parent" did not alter the fact that her continued refusal to consent to chemotherapy for her daughter would result in her death

When her daughter's cancer returned, the mother decided to resume chemotherapy in "conjunction" with traditional native medicine.
In an attempt to clarify the initial ruling, the parties made a joint submission recognizing that the child's best interests were paramount and the aboriginal rights to use traditional medicine was one of the factors that had to be considered in that determination.
The parties agreed given the collaborative approach, daughter was NOT in need of protection
Court adopted the joint submission as an addendum to the original decision.
R v MabiorThe accused had sexual intercourse with several women without informing them that he was HIV positive. He had a low viral load and used conditions on some occasions.
The Court of Appeal held that the use of condition OR having a low viral load could reduce the risk of transmission, and thus the risk of serious bodily harm, the point where accused's fraud would not negate the complaint's consent.
Appeal Court acquitted the accused on 4/6 aggravated sexual assault charges. Crown appealed the 4 acquittals.
Supreme Court stated that the significant risk of serious bodily harm test requires disclosure of one's HIV status if there is a "realistic possibility" of transmission. Standard was justified as being consistent with the Charter values of equality and autonomy, as setting an approperiate threshold for criminal liability. The Court then held that, as a general matter, there would be no realistic possibility of transmission if the accused's viral load was low when the sexual intercourse occurred AND a condom was used. It was noted that this proposition would not necessarily apply if relevant advances were made in HIV treatment or if different risk factors applied to the sexual acts in question
Supreme Court restored Mabior's conviction on 3 of the charges and upheld his acquittal on the 4th charge based on his low viral load and use of condom

SCC held that fraud as to the possible harmful consequences of an act will negate consent if the fraud resulted in physical harm to the complaint or exposed him to significant risk of serious bodily harm
Re Ba patient who was being kept alive by a ventilator sought a court order requiring the staff to shut off the ventilator upon her demand
The court granted the order, stating that the competent patient's right to cease treatment superseded the staff's view of the wisdom of the decision. If the doctors were unwilling to comply with the patient's instructions, they had a duty to find another doctor who would.
But s14 of criminal code percluded a doctor who compiled with a patient's demand to turn off a ventilator from raising the patient's consent as a defence to a murder charge but court dismissed this liability issue
Cuthbertson v. RasouliMr. Rasouli's physician at Sunnybrooke Health Centre wanted to take him off of a respirator and provide only palliative care b/c he was in persistent vegetative state with no prospect of regaining consciousness
While life support was prolonging his life, it was intrusive, harmful, no medical benefit
Rasouli's wife, SDM, refused to agree based on Rasouli's religious beliefs and her view that he was not in a persistent vegetative state.
She sought an injunction to prevent the withdrawal of life support without her consent
Physician argued that they did not need her consent, as the withdrawal of life support did not constitute treatment. The trial judge granted the injunction and the hospital appealed.
Court of Appeal stated the physicians do not generally require consent to withhold unnecessary or futile treatment, noting that patients cannot demand treatment
However, court held that withdrawing life support and immediately providing palliative care constituted a "treatment package" under the HCCA, for which the patient's consent is required
If the hospital believed that Rasouli's wife was refusing consent in violation of HCCA, it could apply to CCB to overturn her refusal. Court acknowledged that the current law was not ideal. Hospital appealed.
Majority of Supreme Court of Canada also broadly interpreted the word "treatment" and upheld the Court of Appeal's decision that consent was required to withdraw life support
The majority stated the HCCA was a "carefully tailored statute" that appropriately balanced the parties' competing interests. The majority brushed aside the physician's arguments that they would be put in the untenable ethnical position of having to continue futile care that was contrary to Rasouli's best interests
Majority stated solutions to avert any ethnical conflicts: challenge the decision of Rasouli's wife as not being in his best interests, transfer Rasouli to another hospital, alter the staffing arrangements for Rasouli's care, or find physicians who would not be ethnically opposed to providing Rasouli with futile treatment
2 dissenting judges argued common law, and not HCCA, governs disputes about withholding and withdrawing life support. Justices states that the HCCA was never designed to resolve issues related to medically futile treament; the definition of treatment in act does not include withholding and withdrawing treatment; and withdrawing treatment and providing palliative care are separate acts. Neither the HCCA nor the common law require a patient's consent to withhold or withdraw treatment
dissenting justices noted that even when the courts intervened to prevent doctors from unilaterally withdrawing life support, they did not conclude the patient consent was necessary. Rather, the courts granted an injunction pending trial on the substantive issues. In other cases, the courts have expressly stated that consent is not required for withdrawing treatment. In concluding, the dissenting judges stated that the continuation of life is not an absolute value and physicians should not be required to breach the accepted standards of care and ethnical duties of their profession
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