Alcohol-related liver disease is a long-term illness that your loved one may develop over time when they drink too much. Alcoholism, which is the chronic consumption of alcohol, damages many organs and systems in the body—including the liver. If your loved one is an alcoholic with alcohol-related liver disease, you may wonder what can be done to reverse their condition or at least change the outcome if they pass on.
The Ontario Court of Appeal recently considered a case where the wife of a late alcohol-related liver disease patient challenged the constitutionality of programs that limited the deceased’s ability to obtain a liver transplant. In Selkirk v Ontario (Health and Long-Term Care), the deceased passed away in 2010 as a result of alcohol-related liver disease. His surviving spouse brought an application challenging three different transplant regimes that had been in force between 2010 to 2020.
The first program challenged was the one that was operative at the time of the deceased’s death. Under this program, the deceased was ineligible for a transplant because of his continued alcohol use. The program required that alcohol-related liver disease patients not consume alcohol for a period of six months before being eligible to be placed on the waitlist.
The second program, which applies today, was put in place in November 2020. Under this program, there are three requirements to be considered to receive a liver transplant:
Additionally, the second program requires that alcohol-related liver disease patients must be assessed to consider their risk of returning to problematic alcohol abuse. The following are the criteria addressed by the transplant team:
The deceased’s wife appealed the decision of the application judge, who determined that the constitutional challenges were either moot or not infringing on the deceased’s rights. The Court of Appeal considered some of the following issues:
The Court of Appeal acknowledged the possibility that there was potentially a problem with the deceased’s wife acting as a representative for herself and her spouse’s estate. Ultimately, however, the court outlined three reasons why it was not a problem:
For these reasons, the court was okay with not complying with the Rules of Civil Procedure strictly in respect to self-represented clients.
The Ontario Court of Appeal was in agreement with the application judge with respect to the constitutionality of the six-month wait imposed on the deceased under the first program. The Court quoted the application judge’s reasoning, which is as follows:
I agree with the respondents that the question of the constitutionality of the six-month rule, as it existed prior to the Criteria, is moot. It would not affect any of the rights of any of the parties were the court to resolve it, nor would it impact the rights of the public because the six-month rule is no longer applied as it was in the past.
I also conclude that I should not exercise my discretion to hear it, because, as with the issues around Mr. Selkirk’s rights, it is outside the role of the court to make pronouncements that would be nothing more than an academic exercise.
The appellant opined that patients with alcohol-related liver disease are vulnerable and often subjected to stereotypes, social prejudice, and marginalization due to their extreme alcohol use. The criteria in the second program, she contended, only perpetuate those effects.
The Court of Appeal did not agree with the appellant’s submission. The appellant suggested that the criteria was arbitrary and grossly disproportionate to their objective, but this was found not to be the case. The criteria were made by experts and informed by research on alcohol use.
This case is helpful to representatives of estates who may wish to bring an action on behalf of the deceased. This case suggests that you may have standing, depending on the facts of the case, to self-represent in those cases. Regardless, it is worthwhile to consult with a lawyer to ensure your matter is taken care of with ease that an experienced professional can provide.
If your loved one has affairs that need to be taken care of on their behalf, or if you are an executor who is administering an estate, the estate lawyers at NULaw in Toronto can help you. We will help you weigh your options and develop a strategic path forward. We will take the time to help you understand what legal rights are at stake and will identify any risks and costs to be anticipated. We also help executors defend wills against challenges from dissatisfied beneficiaries or would-be beneficiaries.NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of estate law issues and regularly provide honest and practical legal advice on these matters. Contact us online or at 416-481-5604 to book a consultation.