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. 

There are specific criteria to be eligible for a liver transplant when suffering from an alcohol-related liver disease

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:

  1. All therapeutic options have been exhausted, beyond liver transplant;
  2. There are no contraindications for the transplant (in other words, there are no reasons that the transplant is not the solution for the particular patient);
  3. The patient is more than 60 percent likely to survive five years after the transplant occurs.

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:

  1. The patient does not meet the criteria for moderate to severe alcohol use disorder (“AUD”) likely to result in a return to problematic drinking in the post-transplant period;
  2. The patient is willing to commit to abstinence from alcohol;
  3. The patient is willing to commit to AUD treatment pre-and post-transplant;
  4. The patient has a history of no more than one previously failed AUD treatment;
  5. Absence of comorbid active substance use disorder, excluding cannabis and tobacco;
  6. Absence of untreated and refractory severe psychiatric comorbidity likely to interfere with treatment adherence;
  7. Other than in relation to alcohol use, no history of recurrent problems with adherence to medical treatment and repeated inability to follow up with or contact the patient; and
  8. The patient has a dedicated support person available to assist them through the process and has steady housing.

The deceased’s wife challenged the constitutionality of the programs

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:

  1. Can a representative of the deceased’s estate bring proceedings on his behalf?
  2. Was the application judge wrong to conclude that the six-month wait period in the first program imposed on the deceased was moot?
  3. Was the application judge wrong to include that the criteria in the second program were constitutional?

Can a representative of the estate bring an action on the deceased’s behalf?

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:

  1. The respondents had not objected to the representation at the initial hearing, nor in the lead-up to the appeal;
  2. The deceased’s wife was not acting on behalf of beneficiaries of the estate seeking money; and
  3. The deceased’s wife had high-quality arguments and supporting materials in bringing the claim.

For these reasons, the court was okay with not complying with the Rules of Civil Procedure strictly in respect to self-represented clients.

The first program’s constitutionality is moot as it is no longer operative

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 criteria of the second program were based on expert input

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.

A representative of an estate can represent the deceased in certain circumstances

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.

Contact the Estate Lawyers at NULaw in Toronto for Help Administering an Estate

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.

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