{"id":2544,"date":"2018-02-09T15:01:54","date_gmt":"2018-02-09T15:01:54","guid":{"rendered":"http:\/\/tvndy.ca\/?p=2544\/"},"modified":"2019-01-16T03:09:57","modified_gmt":"2019-01-16T03:09:57","slug":"webcast-archive-capacity-and-undue-influence-part-2","status":"publish","type":"post","link":"https:\/\/tvndy.ca\/en\/2018\/02\/webcast-archive-capacity-and-undue-influence-part-2\/","title":{"rendered":"Webcast archive: Capacity and Undue Influence \u2013 Part 2"},"content":{"rendered":"<p><iframe loading=\"lazy\" width=\"1180\" height=\"664\" src=\"https:\/\/www.youtube.com\/embed\/xh8EtzjJzXI?feature=oembed\" frameborder=\"0\" allow=\"autoplay; encrypted-media\" allowfullscreen><\/iframe><\/p>\n<p>In this episode of\u00a0<em>Euthanasia &amp; Disability<\/em>, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:<\/p>\n<ul>\n<li>Capacity and Undue Influence \u2013 Part 2<\/li>\n<li>Ontario\u2019s accessibility law under review<\/li>\n<\/ul>\n<p>Please note that this text is only a script and that our webcast contains additional commentary.<\/p>\n<p><strong>CAPACITY AND UNDUE INFLUENCE \u2013 PART 2<\/strong><\/p>\n<ul>\n<li>Welcome to the second part of our series on capacity and \u201cundue influence&#8221;.\u00a0 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 \u201ccapacity\u201d to make the medical decision to ask for it, and their consent must be voluntary and informed.<\/li>\n<li>The person is capable to make a medical decision if they can:\n<ul>\n<li>Understand information about their condition generally (understanding);<\/li>\n<li>Apply that information to their own situation specifically (appreciation);<\/li>\n<li>Think through the information, weighing the benefits and drawbacks of treatment options to come up with a decision (reasoning);<\/li>\n<li>State that choice clearly once it\u2019s made (expression);<\/li>\n<\/ul>\n<\/li>\n<li>To be eligible for AS\/E, the person must give \u201cvoluntary, informed consent,\u201d meaning they:\n<ul>\n<li>Have made a stable, settled decision (being sure and not wavering);<\/li>\n<li>Are free from external pressure;<\/li>\n<li>Are fully informed about:\n<ul>\n<li>Their illness;<\/li>\n<li>The purpose of the treatment;<\/li>\n<li>Alternative options to the treatment;<\/li>\n<li>The risks and benefits of receiving or not receiving the treatment.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<li>Today we\u2019re going to talk about some ideas that come from the area of law that deals with wills and gifts, (called \u201cprobate\u201d).\u00a0 Over the centuries, courts have established a rule that a person cannot inherit from someone they kill; it\u2019s called the \u201cforfeiture rule.\u201d It\u2019s also the plot of a ton of mystery novels.\u00a0 The niece murders the elderly uncle and tries to make it look like a natural death, so she can inherit the uncle\u2019s fortune.\u00a0 It\u2019s up to the clever detective to find the real cause of death, and the person who did the murder.<\/li>\n<li>So far, courts have said the forfeiture rule applies in cases of assisted suicide; if you help someone kill themselves, you can\u2019t inherit anything from them.\u00a0 But now that AS\/E have become legal in many places, what happens if the heir helps the person to kill himself?\u00a0 After all, section 241(5) of Canada\u2019s AS\/E law says \u201cNo person commits an offence \u2026 if they do anything, at another person\u2019s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed \u2026 as part of the provision of medical assist\u00adance in dying.\u201d<\/li>\n<li>Canada\u2019s AS\/E law doesn\u2019t mention the forfeiture rule, but in New Zealand, the forfeiture rule is not applied to assisted suicides.<\/li>\n<li>We come next to the idea of \u201cundue influence,\u201d weaving its way through the questions of capacity and voluntariness.\u00a0 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.<\/li>\n<li>Even though it\u2019s been around for a long time, \u201cundue influence\u201d 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.\u00a0 One court said you could tell if something is \u201cundue influence\u201d if it doesn\u2019t pass the \u201csmell test.\u201d<\/li>\n<li>In general, \u201cundue influence\u201d means to put pressure on someone to do some act that doesn\u2019t reflect their true wishes; in other words, coercion.\u00a0 It comes up most often in the law related to wills, gifts and contracts.<\/li>\n<li>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.<\/li>\n<li>The person challenging the will then has to show that there was a problem in how the will was made.\u00a0 They can try to show \u201csuspicious circumstances,\u201d that can lead to a finding of undue influence.\u00a0 In\u00a0<em>Vout v. Hay<\/em>, the Supreme Court said to look for: \u201c(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.\u201d<\/li>\n<li>Undue influence requires three elements:\n<ul>\n<li>The author of the will and the influencer are in a relationship of trust or dependence;<\/li>\n<li>The author of the will, for some reason, doesn\u2019t have the energy or strength to resist pressure from the influencer (one court called it a \u201csufficiently independent operating mind to withstand competing influences\u201d);<\/li>\n<li>The influencer\u00a0<em>uses<\/em>\u00a0the relationship to influence the author of the will.<\/li>\n<\/ul>\n<\/li>\n<li>\u201cUndue influence\u201d goes beyond trying to convince someone, or even begging.\u00a0 If someone\u2019s niece says she will be out on the street if her uncle doesn\u2019t give her any money, that\u2019s not \u201cundue influence.\u201d\u00a0 But if the niece threatens that she will put the uncle out on the street if he doesn\u2019t give her any money, that\u2019s \u201cundue influence.&#8221;<\/li>\n<li>The influencer doesn\u2019t have to gain a direct or instant benefit for a court to find that undue influence was used.\u00a0 Courts will look at the facts of the situation, including whether the person being influenced is vulnerable, or is dependent on the influencer.\u00a0 Other indicators of undue influence include:\n<ul>\n<li>The person is socially isolated, or moves to a different city where he doesn\u2019t have friends or relatives;<\/li>\n<li>The person is elderly, or their competence is questionable;<\/li>\n<li>There has been recent family conflict;<\/li>\n<li>The person has suffered a major loss;<\/li>\n<li>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 \u201clong-lost\u201d relative);<\/li>\n<li>The person holds back information or doesn\u2019t explain why they changed the will and left out people who would usually inherit property, e.g. children, grandchildren.<\/li>\n<li>The person has recently become ill or disabled, especially if the condition or treatment could affect cognitive ability or general outlook;<\/li>\n<li>The person speaks another language, or has a learning disability;<\/li>\n<li>The person uses a lawyer suggested by the influencer;<\/li>\n<li>The person makes several wills over a short period of time;<\/li>\n<li>The influencer told the lawyer what to do, or approved the will before it was signed;<\/li>\n<li>The person is depressed or lonely;<\/li>\n<li>There is evidence that the person was afraid of the influencer.<\/li>\n<\/ul>\n<\/li>\n<li>As you can see, there\u2019s a lot of overlap between \u201csuspicious circumstances,\u201d vulnerability, and the elements of \u201cundue influence.\u201d\u00a0 As well, some of these (\u201cmedical conditions\u201d \u201cdisabilities\u201d and suffering\u201d) are eligibility criteria for assisted suicide and euthanasia.<\/li>\n<li>This sets up a situation where the same fact can be used to prove two opposite ideas; \u201csuffering\u201d makes a person eligible for AS\/E in Canada and Europe, but it\u2019s also evidence that the choice is not voluntary because of \u201cundue influence.\u201d\u00a0 One judge stated that \u201cif [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.\u201d\u00a0 Yet those conditions may add up to \u201csuffering\u201d which would\u00a0<em>add to<\/em>\u00a0the person\u2019s eligibility for AS\/E.<\/li>\n<li>The idea of \u201cundue influence\u201d 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.\u00a0 No one has challenged the AS\/E laws because the person\u2019s request was subject to \u201cundue influence.\u201d<\/li>\n<li>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 \u201cundue influence.\u201d\u00a0 If you remember from last week, the court told Parliament to set up a \u201cstringently limited, carefully monitored system of exceptions\u201d That raises the question: if courts are still trying to decide what \u201cundue influence\u201d means, how are doctors supposed to figure it out?\n<ul>\n<li>Doctors don\u2019t have to provide \u201cevidence\u201d that the person meets the eligibility criteria, they only have to \u201cbe of the opinion\u201d that it\u2019s true.<\/li>\n<li>The law doesn\u2019t use the term \u201cundue influence,\u201d choosing instead the term \u201cexternal pressure\u201d which is never defined, and hasn\u2019t been applied in any court cases.<\/li>\n<\/ul>\n<\/li>\n<li>In using the term \u201cexternal pressure,\u201d maybe Parliament wanted to create a new legal idea, that combined the \u201cundue influence\u201d by a person with the social and political forces that prompt people to ask for AS\/E:\n<ul>\n<li>The fear of being put in a nursing home because there aren\u2019t adequate home-based services available;<\/li>\n<li>Lack of services, adaptive equipment, and accessible transportation to enable them to do activities they enjoy;<\/li>\n<li>Not having access to effective palliative care;<\/li>\n<li>Having to live below the poverty line;<\/li>\n<li>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.<\/li>\n<\/ul>\n<\/li>\n<li>\u2026 Or maybe not.<\/li>\n<\/ul>\n<p><strong>ONTARIO\u2019S ACCESSIBILITY LAW UNDER REVIEW<\/strong><\/p>\n<ul>\n<li>The Ontario government has appointed former Lieutenant Governor David Onley \u2013 the first person with a disability to occupy that position \u2013 to conduct the third review of the Accessibility for Ontarians with Disabilities Act, also known as the AODA. The Act requires review of its \u201ceffectiveness\u201d every three years.<\/li>\n<li>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 \u2013 two crucial domains in the lives of people with disabilities \u2013 are still in progress.<\/li>\n<li>Mr. Onley is responsible for \u201c(consulting) with the public and (analyzing) accessibility progress made in other jurisdictions.\u201d His review will be completed by the end of this year. We expect that, when he compares Ontario\u2019s law to its equivalents across Canada, he\u2019ll find plenty of areas where the province needs to improve.<\/li>\n<li>Although Mr. Onley has also been asked to \u201cconsider the evolution of the (law), and its goals for an accessible Ontario by 2025 and beyond,\u201d there is still a lot of work to be done.\u00a0<em>Only some<\/em>\u00a0of the recommendations from the second review have been implemented, including the appointment of a Minister Responsible for Accessibility, Tracy MacCharles. \u00a0The last evaluation was done by Mayo Moran, Provost and Vice-Chancellor of Trinity College at the University of Toronto, in 2015.<\/li>\n<li>To sum it all up \u2026 although the review is much needed, we\u2019re not sure how much it will accomplish.<\/li>\n<\/ul>\n   ","protected":false},"excerpt":{"rendered":"<div class=\"entry-summary\">\n<div class=\"entry-summary\">\nThis week, we continue discussing the idea of &#8220;capacity,&#8221; and its connection to assisted suicide.\n<\/div>\n<div class=\"link-more\"><a href=\"https:\/\/tvndy.ca\/en\/2018\/02\/webcast-archive-capacity-and-undue-influence-part-2\/\" class=\"more-link\">Continue reading<span class=\"screen-reader-text\"> &ldquo;Webcast archive: Capacity and Undue Influence \u2013 Part 2&rdquo;<\/span>&hellip;<\/a><\/div>\n<\/div>\n<div class=\"link-more\"><a href=\"https:\/\/tvndy.ca\/en\/2018\/02\/webcast-archive-capacity-and-undue-influence-part-2\/\" class=\"more-link\">Continue reading<span class=\"screen-reader-text\"> &ldquo;Webcast archive: Capacity and Undue Influence \u2013 Part 2&rdquo;<\/span>&hellip;<\/a><\/div>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[92],"tags":[215,121,118],"class_list":["post-2544","post","type-post","status-publish","format-standard","hentry","category-webcast-archive","tag-capacity","tag-euthanasia-disability","tag-webcast","entry"],"_links":{"self":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/2544","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/comments?post=2544"}],"version-history":[{"count":11,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/2544\/revisions"}],"predecessor-version":[{"id":4050,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/2544\/revisions\/4050"}],"wp:attachment":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/media?parent=2544"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/categories?post=2544"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/tags?post=2544"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}