Since our Infomail about government- sanctioned elder abuse (April 8, 2011) the medical condition and life circumstances of 88-year old, Kathleen Palamarek, who was forcibly abducted by Canadian police and ambulance attendants from her daughter and son-in-law and returned to a Broadmead Lodge nursing home, where she was prescribed massive doses of narcotics, have greatly worsened.
On May 3, a Canadian judge sealed her fate–denying her the fundamental human right of self-determination –by ruling that institutional confinement trumps her stated wishes and the wishes of her daughter who is prepared to care for her.
On May 4, Mrs. Palamarek suffered a "severe cardiac event."
In his ruling, Justice Harris dismissed tape recorded statements by Mrs. Palamarek indicating she was unhappy with the nursing home:
“in those recordings Mrs. Palamarek certainly expresses her unhappiness living at the Lodge …[however] 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.”
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.
Lois Sampson’s response to the ruling: “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.”
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?
Vera Hassner Sharav
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?