Webcast archive: 18/02/09

In this episode of Euthanasia & Disability, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:

  • Capacity and Undue Influence – Part 2
  • Ontario’s accessibility law under review

Please note that this text is only a script and that our webcast contains additional commentary.

CAPACITY AND UNDUE INFLUENCE – PART 2

  • Welcome to the second part of our series on capacity and “undue influence”.  To review a couple of points from last week, we said that, to be eligible for assisted suicide and euthanasia (AS/E), a person must have “capacity” to make the medical decision to ask for it, and their consent must be voluntary and informed.
  • The person is capable to make a medical decision if they can:
    • Understand information about their condition generally (understanding);
    • Apply that information to their own situation specifically (appreciation);
    • Think through the information, weighing the benefits and drawbacks of treatment options to come up with a decision (reasoning);
    • State that choice clearly once it’s made (expression);
  • To be eligible for AS/E, the person must give “voluntary, informed consent,” meaning they:
    • Have made a stable, settled decision (being sure and not wavering);
    • Are free from external pressure;
    • Are fully informed about:
      • Their illness;
      • The purpose of the treatment;
      • Alternative options to the treatment;
      • The risks and benefits of receiving or not receiving the treatment.
  • Today we’re going to talk about some ideas that come from the area of law that deals with wills and gifts, (called “probate”).  Over the centuries, courts have established a rule that a person cannot inherit from someone they kill; it’s called the “forfeiture rule.” It’s also the plot of a ton of mystery novels.  The niece murders the elderly uncle and tries to make it look like a natural death, so she can inherit the uncle’s fortune.  It’s up to the clever detective to find the real cause of death, and the person who did the murder.
  • So far, courts have said the forfeiture rule applies in cases of assisted suicide; if you help someone kill themselves, you can’t inherit anything from them.  But now that AS/E have become legal in many places, what happens if the heir helps the person to kill himself?  After all, section 241(5) of Canada’s AS/E law says “No person commits an offence … if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed … as part of the provision of medical assist­ance in dying.”
  • Canada’s AS/E law doesn’t mention the forfeiture rule, but in New Zealand, the forfeiture rule is not applied to assisted suicides.
  • We come next to the idea of “undue influence,” weaving its way through the questions of capacity and voluntariness.  This idea came out of a desire to protect people from fraud and abuse that might affect how their property is distributed after they die.
  • Even though it’s been around for a long time, “undue influence” is not well-defined in the law; courts are still coming up with new ways to explain what it is, test for it, and prove it.  One court said you could tell if something is “undue influence” if it doesn’t pass the “smell test.”
  • In general, “undue influence” means to put pressure on someone to do some act that doesn’t reflect their true wishes; in other words, coercion.  It comes up most often in the law related to wills, gifts and contracts.
  • When a will is challenged in court, the person defending the will has to assure the court that the person who wrote the will knew what it said, meant for it to give their property to the people who received it, and that the person was competent to make the will.
  • The person challenging the will then has to show that there was a problem in how the will was made.  They can try to show “suspicious circumstances,” that can lead to a finding of undue influence.  In Vout v. Hay, the Supreme Court said to look for: “(1) suspicious circumstances raised by events surrounding the preparation of the will; (2) events tending to call into question the capacity of the testator (author of the will); and (3) coercion or fraud.”
  • Undue influence requires three elements:
    • The author of the will and the influencer are in a relationship of trust or dependence;
    • The author of the will, for some reason, doesn’t have the energy or strength to resist pressure from the influencer (one court called it a “sufficiently independent operating mind to withstand competing influences”);
    • The influencer uses the relationship to influence the author of the will.
  • “Undue influence” goes beyond trying to convince someone, or even begging.  If someone’s niece says she will be out on the street if her uncle doesn’t give her any money, that’s not “undue influence.”  But if the niece threatens that she will put the uncle out on the street if he doesn’t give her any money, that’s “undue influence.”
  • The influencer doesn’t have to gain a direct or instant benefit for a court to find that undue influence was used.  Courts will look at the facts of the situation, including whether the person being influenced is vulnerable, or is dependent on the influencer.  Other indicators of undue influence include:
    • The person is socially isolated, or moves to a different city where he doesn’t have friends or relatives;
    • The person is elderly, or their competence is questionable;
    • There has been recent family conflict;
    • The person has suffered a major loss;
    • The person has made a new will that is different from earlier wills (especially if it leaves everything to one person, a new friend or spouse or a “long-lost” relative);
    • The person holds back information or doesn’t explain why they changed the will and left out people who would usually inherit property, e.g. children, grandchildren.
    • The person has recently become ill or disabled, especially if the condition or treatment could affect cognitive ability or general outlook;
    • The person speaks another language, or has a learning disability;
    • The person uses a lawyer suggested by the influencer;
    • The person makes several wills over a short period of time;
    • The influencer told the lawyer what to do, or approved the will before it was signed;
    • The person is depressed or lonely;
    • There is evidence that the person was afraid of the influencer.
  • As you can see, there’s a lot of overlap between “suspicious circumstances,” vulnerability, and the elements of “undue influence.”  As well, some of these (“medical conditions” “disabilities” and suffering”) are eligibility criteria for assisted suicide and euthanasia.
  • This sets up a situation where the same fact can be used to prove two opposite ideas; “suffering” makes a person eligible for AS/E in Canada and Europe, but it’s also evidence that the choice is not voluntary because of “undue influence.”  One judge stated that “if [a] patient is in pain, depressed or tired or being treated with drugs, he or she is less likely to resist the influence of others.”  Yet those conditions may add up to “suffering” which would add to the person’s eligibility for AS/E.
  • The idea of “undue influence” in medical decisions has so far been used mostly in situations where someone refused treatment, either for religious reasons, or because they were convinced to use some alternative treatment.  No one has challenged the AS/E laws because the person’s request was subject to “undue influence.”
  • In the Carter decisions, the trial court said, and the Supreme Court agreed, that doctors would be able to assess capacity and voluntariness, including whether there was “undue influence.”  If you remember from last week, the court told Parliament to set up a “stringently limited, carefully monitored system of exceptions” That raises the question: if courts are still trying to decide what “undue influence” means, how are doctors supposed to figure it out?
    • Doctors don’t have to provide “evidence” that the person meets the eligibility criteria, they only have to “be of the opinion” that it’s true.
    • The law doesn’t use the term “undue influence,” choosing instead the term “external pressure” which is never defined, and hasn’t been applied in any court cases.
  • In using the term “external pressure,” maybe Parliament wanted to create a new legal idea, that combined the “undue influence” by a person with the social and political forces that prompt people to ask for AS/E:
    • The fear of being put in a nursing home because there aren’t adequate home-based services available;
    • Lack of services, adaptive equipment, and accessible transportation to enable them to do activities they enjoy;
    • Not having access to effective palliative care;
    • Having to live below the poverty line;
    • Being bombarded with messages from medical staff, the media and the public that their quality of life is lower, and their lives are less valuable, than non-disabled people.
  • … Or maybe not.

ONTARIO’S ACCESSIBILITY LAW UNDER REVIEW

  • The Ontario government has appointed former Lieutenant Governor David Onley – the first person with a disability to occupy that position – to conduct the third review of the Accessibility for Ontarians with Disabilities Act, also known as the AODA. The Act requires review of its “effectiveness” every three years.
  • The AODA is designed to remove barriers by creating standards for government departments and businesses in a few major areas. Requirements for customer service, information and communications, employment, transportation and the design of public spaces are currently in place. Accessibility standards for health care and education – two crucial domains in the lives of people with disabilities – are still in progress.
  • Mr. Onley is responsible for “(consulting) with the public and (analyzing) accessibility progress made in other jurisdictions.” His review will be completed by the end of this year. We expect that, when he compares Ontario’s law to its equivalents across Canada, he’ll find plenty of areas where the province needs to improve.
  • Although Mr. Onley has also been asked to “consider the evolution of the (law), and its goals for an accessible Ontario by 2025 and beyond,” there is still a lot of work to be done. Only some of the recommendations from the second review have been implemented, including the appointment of a Minister Responsible for Accessibility, Tracy MacCharles.  The last evaluation was done by Mayo Moran, Provost and Vice-Chancellor of Trinity College at the University of Toronto, in 2015.
  • To sum it all up … although the review is much needed, we’re not sure how much it will accomplish.