Law & Orderlies 2

Okay, I have a confession to make: I can be the impatient guy tapping his feet when the older gentleman in line in front of me in the drug store is counting out his change to pay for cough candy and tissues. I hope that doesn’t make me a bad person?

For a good part of my life I didn’t have much interaction with the elderly. We emigrated and settled in Ontario when I was quite young, so I didn’t have the experience of growing up with grandparents or even older aunts and uncles. I don’t think I was a jerk to older people, just not very aware.

Over time though, I have developed a growing wonderment at the powers of older people. I’m not sure what the seminal moment was, but I do remember this:

Our first son was born during an extremely hot July. We had just moved into a house on a quiet street on the Hamilton Mountain and though we were integrating well, it was still new to us. I recall this being a very challenging time, particularly because the delivery was not an easy one-though I survived it well! I was also in the middle of some personal transitions at work and was doing far more traveling than I should have been at the time.

Coming home one day, there was a basket on the front porch. It was food. Real food. Home made food.

On the basket was a very brief note and someone’s name. It took me a second. Is this from the Old Lady across the street? It was. But she was 90 (I’m serious, she was in her 90s).

The food was great and we learned a lot more about her and her accomplishments and abilities over the next few years. It was nice to get the food, but the inspiration and learning has stayed with me.

Not too many years later, she passed away. She stayed in her house to the end. One day she went to the hospital because she was not feeling well and she died the next day. In her house, she had a list-she was supposed to get her hair done that day.

What I have learned from this and many other experiences is that older people can and do contribute a ton. Maybe not all the time, people have good days and bad-increasingly good moments and bad-but enough to make a real difference in our communities.

Yet many of us, including me at times, marginalize them and define them by their declining abilities. In our personal relationships, this can be very difficult because we knew the height of their powers once, making the decline all the more stark and worrying.

It may be this-love for those who are declining in our eyes- that pushes us into the role of protector, looking out for the best interests of those we perceive can no longer look after themselves or may no longer have the ability to make the best decisions for themselves if those decisions don’t square with us.

My neighbour spent her entire life in her house and contributed to her community right to the end. I have also worked within a long term care (LTC) setting and this is clearly the best choice for some. There are was to contribute and participate in that environment as well.

When it comes to care for the elderly, who makes the decisions on where a person should receive care?

In a prior entry, I talked about creating directives. In that case, the directive would have been interpreted by the decision maker named in the Power of Attorney for Personal Care due to an obvious incapacity brought on by an acute medical crisis.

In most people, changes in mental capacity are not abrupt or acute. They take place over time and are characterized by peaks and valleys and not as gradual as we once thought.

So what happens if the person in this condition of decline actively expresses wishes that are contrary to the wishes or recommendations of caregivers? This likely happens often where well meaning family and health professionals make recommendations that the person’s best interests would be served by taking up residence in a LTC facility. Our law is pretty clear on this- people who have the capacity to do so are entitled to make their own decisions. The declining family member’s voice must be listened to and respected. This is their decision.

Now, what is the situation should a health professional believe that the person does not have the ability to make the care admission decision? Again, pretty simple-the legal substitute makes the decision for them.

Where things get a bit squishy is when the person disagrees with the incapacity decision of the health professional. The rules governing the professions require the health professional to advise the person of the decision. In Ontario, the Health Care Consent Act provides a mechanism for a formal review of that decision should the person make an application. The legal issues at the review are these: does the person have the ability to understand the relevant information and; does the person have the ability to understand the risks and/or consequences of making or not making the decision.

An interesting case recently came up for review. An elderly woman (let’s call her ‘K’) was living at home. She had care giver support from family as well as formal support arranged through the CCAC. The family support and health professional were concerned for K and there was evidence of risks in the home setting. The recommendation was made that K should transition to LTC, however, K did not consent. In this case a health professional made a finding that K was not capable of making the admission to care decision herself. K asked for a review of the decision.

K gave evidence on her own behalf. Generally put, she acknowledged that she had good days and bad days and her plan was to ‘hope for the best’.

The hearing officer decided in favour of K. Though there were clearly risks identified should K remain at home and it may have objectively been in K’s best interest to transition to LTC, that is not the test. K was required to have the ability to understand the risks and/or consequences of staying at home. The hearing officer felt that she did.

K’s decision may not have been a cautious one and it was not what her caregivers wanted for her. However, declining as she may be she remained capable of making this decision, so it was her decision to make.

At this point I don’t know what’s become of K, but for her, I hope she is having more good days than bad, is contributing to her community and maybe even leaving perogies on someone’s front porch.

The expressions here are not intended to be relied upon as legal advice.

Paul is a lawyer in Ontario and has been a member of the Ontario Bar for 25 years. He has worked in the health sciences industry and law has a decade of experience working with healthcare stakeholders building community healthcare partnerships.
Paul can be reached at or at Paul Riddles Law, 75 Young St., Hamilton, ON, L8N 1V4