Nova Scotia (Health and Wellness) v. M.O., 2021 NSSC 302

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Health and Wellness) v. M.O. , 2021 NSSC 302 Date: 20211021 Docket: Sydney No. 114710 Registry: Sydney Between: Minister of Health and Wellness Province of Nova Scotia Applicant v. M.O. Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: September 13 & 14, 2021, in Sydney, Nova Scotia Written Release: October 21, 2021 Counsel: Joseph Wall for the Applicant Alan Stanwick for the Respondent Cassandra Lilley for the Litigation Guardian By the Court: [ 1 ] M.O. is 56 years of age.

He currently resides in a nursing home facility in Glace Bay. He has extensive medical needs. [ 2 ] The Minister filed a notice of adult protection application on June 7, 2019. An interim order was granted on June 24, 2019. Having considered the best interests of M.O., I authorized the Minister to provide services, including placement. A litigation guardian was also appointed. [ 3 ] The order was renewed on several occasions since June, 2019. However, M.O. now contests the Minister’s position that he is an adult in need of protective services.

BACKGROUND [ 4 ] A hospital social worker made the referral leading to the Minister’s involvement in 2019. At the time, M.O. was a patient in the hospital I.C.U. [ 5 ] M.O.’s attending physicians were concerned that he did not understand, or appreciate, the risks that he faced at home without proper care. M.O. admitted to the Minister’s social worker that he didn’t always take medication as prescribed, but he expressed the view that he could take care of himself. He denied that his condition was serious enough to merit care in a long-term care facility.

He did concede that he needed to take better care of himself in future. [ 6 ] At the time of M.O.’s admission to the hospital, he was displaying a decreased level of consciousness, which was attributed to his blood sugar levels. [ 7 ] In hospital, M.O. was independent for his own personal care, aside from administration of medication. The initial plan was to discharge M.O. to his home, but after considering the social side of M.O.’s care needs, the decision was made to place a referral with the Minister. [ 8 ] Dr.

Christopher Latta completed a psychiatric assessment on May 24, 2019 and concluded that M.O. suffers from a mental disorder; that he is likely to suffer serious physical impairment or serious mental deterioration, or both; and that M.O. “lacks memory, judgement and capacity to make medical decisions”. [ 9 ] Dr. Ali also completed a psychiatric assessment on M.O. He concluded that M.O. did not seem to have cognizance of the serious nature of his condition, nor the obvious perils that his medical maladies could cause. He concluded that:

Based on clinical evidence, he is incapable of living independently, safety being a major concern. He has been neglecting himself, unable to cater for his mundane needs. He is also incompetent to make safe decisions given the severe variations in his blood sugar levels. His needs will be best served in a supervised setting. [ 10 ] Dr. Thomas Law completed an adult protection medical observation form on June 4, 2019, in which he noted that M.O. had been neglecting himself, had poor insight into his medical condition, and exhibited poor diabetic control. Dr.

Law concluded that M.O. did not have the mental capacity to understand and appreciate the consequences of the risks he was facing. Those risks include “brittle” diabetes and a foot ulcer requiring treatment to prevent sepsis. [ 11 ] A review of M.O.’s hospital record reveals a number of prior admissions, due to M.O.’s diabetes and related health concerns. Many of the health care providers expressed concern about his lack of insight into the severity of his illness, and the fact that he continually discharged himself from hospital against medical advice.

There was concern that he would lose his foot to amputation because of his failure to follow medical advice. Cognition issues were also raised by numerous health care providers. [ 12 ] When M.O. was eventually stabilized and discharged in 2019, under the Interim Order, he was placed in a nursing home an hour outside of Sydney. Even there, under regular supervision and medical care, his sugar levels continued to fluctuate due to con- compliance with his diet.

In fact, he was taken to hospital in September, 2019 because staff could not bring his blood sugars back up after a significant drop. [ 13 ] The nursing home notes confirm that M.O. was able to check his own sugars and self-administer his insulin, though he required prompting to do so, and his injection had to be supervised. Problems arose because M.O. wanted to check his sugars on his own schedule, rather than as recommended by physicians. He slept and ate on an irregular

schedule and consumed inappropriate foods. [ 14 ] M.O. also required wound care twice a day, but he would refuse wound care from time to time, and on occasion he would delay it for hours. [ 15 ] Various mental status exams had been completed on M.O. by that time. His last scores were: 23/30 on an M.M.S.E. and 16/30 on the Montreal Cognitive Assessment. [ 16 ] M.O. was assessed by geriatric psychiatrist Dr. Jean Ferguson on January 6, 2020. In her testing, M.O. scored 28/30 on the M.M.S.E. and 24/30 on the Montreal Cognitive Assessment.

She noted that with good nursing care, his cognitive testing had improved to some extent, but he suffered from mild to moderate cognitive impairment which impairs his judgment. She concluded that he lacks insight into his situation, particularly the risks and benefits of complying with recommended treatment; he is at high risk of serious illness and even death as a result.

She concluded: “Regretfully, this gentleman does not appear to have the capacity to make personal care decisions”. [ 17 ] Throughout the Minister’s involvement, it’s been generally agreed among health-care providers that M.O. was not capable of living independently. When he expressed a desire to leave long-term care, the Minister encouraged M.O. to develop an alternative care plan. Until recently, he was not able to do so. [ 18 ] M.O. lived with his brother J.O. and his family for approximately three months in 2018, immediately prior to obtaining his last apartment.

Since M.O.’s placement, his younger brother J.O. has acted as his substitute decision maker. [ 19 ] After seeing how distraught his brother was living away from the local area, J.O. advised the Minister that he was prepared to take M.O. into his home to live with his family again. However, at the same time, J.O. advised that he would not permit people to come into his home to provide care to M.O. He insisted that he would do it himself. [ 20 ] This raised concerns with staff at the long-term care home and with the Minister’s social worker. J.O.’s involvement had been inconsistent to that point.

The nursing file shows that he expressed concern about his brother’s medical issues from time to time, but at other times he indicated a desire to stop acting as his brother’s substitute decision maker. [ 21 ] In June, 2021 M.O. was hospitalized again, and then transferred to the Cape Breton Regional Hospital. The wound on his foot was worsening, with swelling in the leg, drainage, and increased pain. Doctors prescribed medication which unfortunately caused kidney failure, leading to the need for dialysis.

That additional medical need complicated M.O.’s care to a considerable degree. [ 22 ] M.O. was eventually placed in a local long-term care home on July 2, 2021. He was only there a brief period before being hospitalized due to sepsis in his foot. In the days prior, J.O. had taken M.O to his home for a visit, during which time M.O. refused to use a wheelchair and walked around, despite medical advice to the contrary. [ 23 ] Dr. Jean Ferguson assessed M.O. again at the Minister’s request on August 16, 2021.

She relates that his brother J.O. was interviewed, and J.O. reported that he wasn’t satisfied with M.O.’s quality of life in long-term care. However, he was not aware that M.O. had been advised against walking on the injured foot, that he is unable to climb stairs, or that he now requires nursing care three times daily. [ 24 ] Dr. Ferguson’s report indicates that J.O. told her: his brother’s judgement is “poor”; M.O. is very stubborn; a “compromise” might be necessary; and he agrees that M.O. needs some form of institutional care.

The report also indicates that J.O asked about outings to allow M.O. to enjoy a more normal life outside of the facility, if he remained in long-term care. [ 25 ] Dr. Ferguson’s report concludes that “[M.O] displays mild cognitive impairment that would not in itself preclude independent living.

However, he appears to have longstanding lack of insight into the life-threatening nature of his illness, particularly with osteomyelitis. … This long-standing lack of insight appears to be preventing [M.O.] from making decisions tat will protect his health and regretfully in my opinion he lacks capacity to make personal care decisions.” ISSUES:

1. Is M.O. an adult in need of protective services? (

a) Does he meet the definition? (

b) Is an order in his best interests? ISSUE 1(a): IS M.O. AN ADULT IN NEED OF PROTECTIVE SERVICES? [ 26 ] In determining this question, I have considered the purpose of the Adult Protection Act , R.S.N.S. 1989, c.2 , as stated at

section 2 : 2 The purpose of this Act is to provide a means whereby adults who lack the ability to care and fend adequately for themselves can be protected from abuse and neglect by providing them with access to services which will enhance their ability to care and fend for themselves or which will protect them from abuse or neglect. [ 27 ] I then turn to the

interpretation

section of the A.P.A .

Section 3 provides the following

definitions: 3 In this Act, (a) "adult" means a person who is or is apparently sixteen years of age or older; (b) "adult in need of protection" means an adult who, in the premises where he resides, ... (ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention; [ 28 ] M.O. is clearly an adult. However, he argues that he’s NOT an adult in need of protection under s.3(b)(ii).

He says that he is (and always was) able to adequately care for himself. M.O. disputes the Minister’s claim that he is incapable of caring adequately for himself by reason of mental infirmity, or that he refuses, delays, or is unable to make provision for his own care and attention. [ 29 ] As a preliminary matter, the Minister points out that a series of orders has already been granted, finding M.O. an adult in need of protection. Those orders are deemed to be correct.

The Minister seems to suggest that M.O. bears the burden of showing that there’s been a change of circumstances, such that he no longer meets the definition. [ 30 ] I disagree. The Minister bears the onus of proving that M.O. is an adult in need of protective services each time it seeks a new (or renewed) order (see Nova Scotia (Minister of Health) v.

R.G ., 2005 NSCA 59 ) [ 31 ] In R.G. ( supra ), the Court of Appeal clarified that the phrase “…in the premises where he resides” can mean the home where the adult lived before the Minister became involved, or the home where they plan to live if the Minister’s order is terminated. [ 32 ] M.O.’s plan is to live with his brother, but if the Minister’s order is not renewed, he would be free to change his mind and acquire his own apartment. So, I’ve considered both possibilities. [ 33 ] At the time of his admission to hospital in 2019, M.O.’s circumstances were dire.

He was admitted to intensive care because his condition had deteriorated so greatly. He’d been living alone in his own apartment, doing his own glucose testing, administration of medication, and wound care. [ 34 ] M.O. was clearly not receiving adequate care and attention. He was unable to adequately care for himself, and he was unable (and possibly refused due to lack of insight) to make provision for his own care. I’m satisfied that if M.O. was permitted to return to his own apartment, the same outcome can be expected. [ 35 ] I turn next to M.O.’s plan to live with his brother.

M.O. previously lived with J.O. and his family for three months, albeit in a different home outside of Sydney. J.O. now resides in Sydney in a two-level home. [ 36 ] In his affidavit, J.O. says that he’s prepared to have M.O. live with him, and that there’s a spare bedroom upstairs that’s available for his use.

He testified that there’s a family bathroom across the hall from M.O.’s room. [ 37 ] When challenged about the requirement to use a flight of stairs to reach the bedroom and bathroom, J.O. added that there’s a couch downstairs where M.O. can sleep, as well as a half-bath on the main level. [ 38 ] On further questioning from the court, J.O. confirmed that, in order for M.O. to shower or bathe, he would have to go upstairs. J.O. says that there’s a railing on the stairs, but that if M.O. cannot navigate the stairs himself, J.O. would lift him. However, J.O. is off work on a disability.

It’s unlikely that he would be able to lift. M.O. up a flight of stairs safely. His suggestion that his wife could do so is even less likely. [ 39 ] J.O. testified that he’s prepared to accept help in caring for M.O. This contradicts what he told the social worker. It also appears to contradict what he told Dr. Ferguson. [ 40 ] J.O. was initially reluctant to testify. When he did, his evidence was exaggerated and defensive. He alleged that the social worker was lying about the discussion where he said he’d refuse help in the home. He says that Dr. Ferguson is lying too.

[ 41 ] I accept the evidence of the social worker and Dr. Ferguson. They are impartial professionals with no motivation to lie or exaggerate. J.O. is not disinterested, nor a professional required to accurately record the details of a conversation. [ 42 ] According to the nursing notes, J.O.’s desire to be involved in M.O.’s care vacillates.

He clearly feels obliged to support his brother’s plan to leave long-term care, but it’s equally clear that the plan is not well conceived, and that it evolved under cross- examination. [ 43 ] I am sure that J.O. means well, but I am not satisfied that the plan for M.O. to live with him would ensure that M.O will receive adequate care and attention for his longstanding, severe health problems. J.O. appears to have limited insight into his brother’s health problems, and he clearly defers to M.O.

That is a dangerous combination in these circumstances. [ 44 ] Further, I find that even if J.O. is prepared to permit help into the home, it’s unlikely that M.O. would accept assistance. I find that he left his brother’s home in 2018 due to conflict with (and likely his belligerent attitude towards) J.O.’s wife. The nursing notes confirm that M.O. resists the assistance of nursing staff and delays care.

If the VON schedules a visit with M.O. and he refuses care, they don’t have the flexibility to drop back in at M.O.’s convenience. [ 45 ] Further, M.O. testified that he has always completed his own self care, testing and medication without supervision or direction in the nursing home. This is contradicted by the nursing notes. It’s clear that M.O. is a “stubborn dude” (a description used by J.O.).

It’s also clear that he believes that he can provide adequate self-care, and that he’s willing to say anything necessary to convince the court that he can live without the Minister’s involvement. [ 46 ] His evidence illustrates the lack of insight identified by the physicians involved in his care. It’s unlikely that M.O. will change his ways.

Particularly with his cognitive impairments, his behaviour is likely to deteriorate, rather than improve. [ 47 ] The evidence satisfies me, on balance of probabilities, that absent a court order authorizing placement in a long-term care home, M.O.’s health would deteriorate rapidly, leaving him at risk of further hospitalization or even death. [ 48 ] Without nursing staff monitoring his meals, glucose testing, intake of insulin, and doing his wound care, I am not satisfied that M.O. would make adequate arrangements for his own healthcare.

The possibility of his foot developing sepsis again, combined with the “brittle” nature of his diabetes, exacerbated by his dietary choices, his refusal to accept help, and his refusal to take direction, makes for a potentially lethal combination. [ 49 ] I therefore find that M.O. continues to meet the definition of an adult in need of protective services. I further find that he is not mentally competent to decide whether to accept the Minister’s assistance.

ISSUE 1(b): IS AN ORDER IN M.O.’S BEST INTERESTS? [ 50 ] Section 9(3) of the A.P.A. states: 9(3) Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either (

a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or (

b) is refusing the assistance by reason of duress, the court shall so declare and may, where it appears to the court to be in the best interest of that person, (

c) make an order authorizing the Minister to provide the adult with services, including placement in a facility approved by the Minister, which will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect. [ 51 ]

Section 12 of the A.P.A . states: 12 In any proceeding taken pursuant to this Act the court or judge shall apply the principle that the welfare of the adult in need of protection is the paramount consideration. [ 52 ] Having determined that M.O. is not mentally competent to decide whether or not to accept the Minister’s assistance, I must consider whether it is in M.O.’s best interests to grant an order permitting the Minister to provide services, including placement.

The caselaw has recognized that these are intrusive orders, and so they must be granted only in circumstances where an adult’s best interests require it. [ 53 ] M.O. argues that adults are entitled to make poor choices, and that lack of insight does not equate to lack of capacity. He cites the example of a lung cancer patient who refuses to stop smoking or refuses treatment. The present situation is not the same.

A cancer patient may choose to continue smoking, or opt out of chemotherapy treatment, despite the recommendation of physicians, because the patient has weighed the pros and cons of their actions and choices. The patient would likely consider their prognosis, their quality of life, the duration and nature of treatment, their age, family wishes, and many other personal reasons. [ 54 ] Such individuals are given that choice because they are competent to make an informed healthcare decision.

Vulnerable adults with cognitive impairments, and whose insight into their condition is limited, cannot make the same informed decision (see Nova Scotia (Minister of Health) v. V.S. (Litigation Guardian of), 2006 NSCA 122 and 2015 NSSC 9 (per Jollimore, J.)). [ 55 ] J.O. is aware that if his brother chooses not to comply with medical recommendations, his life could be at risk. However, he is philosophical about it.

He says that if M.O. is released from the Minister’s care and then only gets to live another six months, during which time he is independent and gets to see his children, then he should be allowed to do so. [ 56 ] M.O.’s counsel argues that his plan to live with his brother demonstrates insight into his condition and the risks he faces. I

disagree. M.O.’s initial plan (as outlined in J.O.’s affidavit) actually demonstrates a lack of insight. It includes a second storey bedroom in a home with people he couldn’t previously live with for longer than three months. [ 57 ] M.O. is effectively asking for the right to live independently, whether or not it kills him. He is not capable of making that decision. The A.P.A. is a remedial piece of legislation aimed at protecting vulnerable adults. Its aim is to protect people like M.O. from abuse and neglect ( Nova Scotia (Minister of Health) v.

J.K.D., 2010 NSCA 25 ) . [ 58 ] I am satisfied that it’s in M.O.’s best interests to renew the order. An order which allows the Minister to provide services, including placement, may limit M.O.’s independence, but it is in his best interests to ensure that he receives adequate care for his complicated medical needs, and possibly prolong his life. [ 59 ] M.O. has teenaged children. He’s now living closer to their home. Although they haven’t visited much since his move, there’s a better chance of them visiting now than in his prior placement.

And with proper medical care and supervision, there’s a better chance that M.O. will live long enough to see them become adults. CONCLUSION [ 60 ] I conclude that M.O. is an adult in need of protective services and that it is in his best interests to grant an order authorizing the Minister to provide him with services, including placement, to protect his physical and mental well being. I’m satisfied that the Minister’s plan addresses M.O.’s needs and best interests. MacLeod-Archer, J.