Canada's draconian judicial system can strip elderly patients
of their human rights, forcing them to be confined to a nursing home against
their expressed wishes and against the wishes of their adult child who is
prepared to care for them.
Since our Infomail about
In his
ruling, Justice Harris dismissed tape recorded statements by Mrs. Palamarek
indicating she was unhappy with the nursing home:
Mrs.
Palamarek's daughter, Mrs. Lois Sampson has waged a 3-year battle with Broadmead
to gain her mother's freedom, maintaining that her mother wanted to leave the
nursing home, and has repeatedly expressed a wish to do so.
She was
assisted by her husband, elder care advocates, doctors, and pharmaceutical
experts. However the judge denied her petition, and rejected every one of the four
experts who testified on Mrs. Palamarek's behalf, agreeing that she could live
in a home-based care setting with essentially the same assurance of safety and
treatment that she would receive in an institution.
But Justice Harris rejected all those
opinions, basing his decision instead, on the opinion of a single doctor who
had an obvious conflict of interest –inasmuch as he worked for Broadmead Lodge
and it was his treatment regimen that was being questioned.
Even as Justice Harris accepted the fact that: "some of the
drugs prescribed to Mrs. Palamarek are known to be harmful and can cause death
in the elderly, particularly those suffering from dementia." However he ruled that "there was
insufficient evidence to determine that these drugs were actually harming Mrs.
Palamarek personally."
The judge
ruled that confidential attorney-client communications should be made public.
So much
for Canada's judicial system as a fair and just arbiter of human rights ! One has to wonder whose interests did Justice Harris serve?
By Ron Winter | Last updated May 5, 2011
British Columbia resident Kathleen Palamarek,
an elderly widow and patient in the Broadmead Lodge nursing home in Saanich,
a community in Greater Victoria on Vancouver Island, will remain there
indefinitely, after a Canadian judge ruled Tuesday that institutional confinement
trumps family living.
Mrs. Palamarek’s daughter, Lois
Sampson, has spent three years trying to free her mother from Broadmead, to no
avail. The ruling from B.C. Justice David Harris, coming more than two
months after the end of a trial in which Mrs. Sampson brought in myriad legal
and medical experts who questioned the quality of Mrs. Palamarek’s care and the
advisability of her continued residence at Broadmead apparently puts an end to
the case.
Among the issues raised by her
daughter was the drug regimen Mrs. Palamarek was administered in the
nursing home. Mrs. Sampson maintained, and expert witnesses testified, that
some of the drugs had harmful side effects, especially for elderly patients
including heart attacks or strokes.
BREAKING NEWS UPDATE: Kathleen
Palamarek has suffered what has been called a “severe cardiac event” at
Broadmead Lodge Wednesday, May 4. According to an email to Lois Sampson from
her brother, who maintains Power of Attorney over their mother’s affairs,
“Regularly scheduled family visits have been replaced with this new order
effective immediately.
There will be a Lodge Staff Member
with Mom at all times, even during family visits to ensure Mom’s medical needs
are met and to constantly monitor her condition. There should be no video
taping, audio taping or any picture taking of any kind allowed of Mom, in Mom’s
room, or any where else in the Lodge during family visits.
If there is a need for Doctor or Staff intervention to treat Mom, you
will be required to leave the room in order so that they can conduct their jobs
effectively.”
Mrs. Sampson, aided by her husband
Gil, elder care advocates, pharmaceutical experts and doctors, maintained that
her mother wanted to leave Broadmead, and has repeatedly expressed a wish to do
so. Justice Harris’s 70-page opinion, however, rejects every argument put forth
by Mrs. Sampson’s witnesses, deferring instead to medical testimony provided by
the Lodge, particularly on the types of drugs administered to Mrs. Palamarek,
the widow of a World War II veteran.
He avers that even if some of the
drugs prescribed to Mrs. Palamarek are known to be harmful and can cause death
in the elderly, particularly those suffering from dementia, there was
insufficient evidence to determine that these drugs were actually harming Mrs.
Palamarek personally.
Justice Harris said that he finds
the practice of over-medicating nursing home patients to keep them restrained
“reprehensible” but could not determine that the medications prescribed for
Mrs. Palamarek fell into that category. He claimed she had a history of
delusional behavior, suffers from progressive dementia and the attending
physician at Broadmead believed the drugs he prescribed were adequately
addressing that condition.
Justice Harris also noted that
Broadmead’s doctor instructed the nursing staff to monitor Mrs. Palamarek for
signs for side effects but that none were reported.
Justice Harris further opined that
Mrs. Palamarek may have said that she was unhappy living at Broadmead Lodge and
wanted to move out because she was “delusional.” But the evidence he cites as
valid came more from recent statements from Mrs. Palamarek who has demonstrably
been heavily medicated – to the point of necessitating a 911 call in February
and an ambulance trip to a nearby emergency room where she was administered an
antidote for narcotic poisoning – rather than her wishes as expressed three
years ago.
“Her more recent views, to the
extent they are reliable, are more probative of the issue before me than what
she said or did in 2008.” Well, if Mrs. Palamarek is in fact suffering from
progressive dementia wouldn’t it make sense that she would have had a clearer
mind three or four years ago than now?
So, why the contradictions?
The decision also states that during
the trial it was discovered that the first lawyer retained to represent Kathleen
Palamarek in the three year legal battle, had in his files two audio recordings
Mrs. Palamarek made in July and August 2008 in which she clearly stated that
she was unhappy living in Broadmead Lodge and wanted to leave.
That was four months before she left
the lodge on Oct. 27, 2008 for three days of freedom before a squad of police,
ambulance attendants and health authority personnel forcibly removed her from
Lois Sampson’s condominium in downtown Victoria, under British Columbia’ mental
health act, eventually returning her to Broadmead.
Justice Harris wrote that “Mrs.
Sampson submitted that those recordings not only disclose Mrs. Palamarek’s
strong desire to leave the Lodge and live with her, but also belie the opinions
expressed by the experts (testifying for Broadmead Lodge) that Mrs. Palamarek
was not oriented to time and place and was incapable of expressing reliable
opinions about her medical care and who should look after her.”
Further Justice Harris states that
while “in those recordings Mrs. Palamarek certainly expresses her unhappiness
living at the Lodge … the audio recordings do not assist me in concluding that
Mrs. Palamarek’s wishes, as stated in those discussions, are reliable and
should be given weight.”
Justice Harris uses for rationale in
this part of his decision the fact that Mrs. Palamarek brought hand-written
notes to the meeting with her lawyer to help her keep on point, and that Mrs.
Sampson apparently helped her write one of them before Mrs. Palamarek went to
the meeting with her lawyer.
Justice Harris says this is evidence
that Mrs. Sampson manipulated Mrs. Palamarek. There was no evidence that this
was the case but Justice Harris opted not to use the absence of evidence as
absence of an action, as he did in ruling in favor of the Lodge in other parts
of the decision.
Progressing through the 70-page
decision it is obvious that Justice Harris doesn’t like Lois Sampson and
rejects out of hand every expert witness she provided. Justice Harris also
relates statements from other family members who wanted to keep Mrs. Palamarek
confined, that Lois Sampson is “controlling.”
But Justice Harris relied on other
information to develop that opinion too – notes and other documents
detailing what in the US would be privileged communications between Lois
Sampson and her lawyer!
Justice Harris ruled during the
trial that the entire file on the case maintained by the first lawyer who
represented Lois Sampson should be released! That included many
communications, including emails between Lois Sampson and her attorney
discussing possible strategies, and handwritten notes made by the lawyer during
his conversations with Mrs. Palamarek that Justice Harris used to impeach his
later testimony.
Call me uniformed if you will, but I
always thought that Canadian and American legal systems, having a common origin
in the English law going back to the Magna Carta, included similar protections.
I absolutely did not know that there is no lawyer-client privilege in
Canada! (Sarcasm intended if not understood.)
I wonder how many Canadian citizens
sit down with their barristers thinking that their conversations are between
them only. I wonder how much they would tell their lawyers if they knew their
words could be used against them in court. Apparently there is no Fifth
Amendment protection against self-incrimination in Canada either. (More
sarcasm.)
This is a shocking revelation,
especially since there are ongoing efforts to “harmonize” or meld Canadian laws
with US laws, including or should I say, especially, those concerning elder
abuse.
In the US we are constantly told
that if we don’t agree with one doctor’s opinion or treatment to “get a second
opinion.” Lois Sampson got second, third and fourth opinions, all of which
agree to one degree or another that Kathleen Palamarek could live in a
home-based care setting with essentially the same assurance of safety and
treatment that she would receive in an institution.
But Justice Harris rejected those
opinions, instead basing his decision on the opinion of a single doctor who had
the biggest conflict of interest of all – he worked for Broadmead Lodge and it
was his treatment regimen that was being questioned.
And Justice Harris rejected an
equally valid second medical opinion because the doctor who rendered it did his
own work in interviewing Kathleen Palamarek and reading her records. Justice
Harris faulted him, however, because he didn’t interview Broadmead’s doctor to
determine the factors he used in reaching his decision.
Has anyone in the US ever been told
that they should get a second opinion but for that opinion to be valid it has
to be cleared with the doctor who issued the first opinion?
Lois Sampson’s response to the
ruling was straightforward: “Weep for my Mom. The judgment contains
errors of basic fact, but most stunning is that he took pains to ignore all of
the concrete evidence presented in court … and he carefully cherry-picked
highly suspect, unsubstantiated statements by others … and treated them as
Gospel. It’s still possible for us to be shocked at the corruption here.”
It is clear from this case that the
United States is a far better country in which to live than Canada in terms of
quality of life and freedoms, particularly in terms of our medical systems. Maybe
I reached this conclusion because I believe in the sanctity of the family over
bureaucrats and the rights of individual over the state.
But is also is crystal clear when
one views the case of Kathleen Palamarek that individual rights and freedoms
still rate very high in the USA.
But in Canada, not so much, eh?
