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Chapter 1 Federal and Provincial Jurisdiction & Spending ......................................................... 4
Canada Health Act ....................................................................................................................... 5
Rombaut v NB 2001 CA, Cameron v NS (1999) NSCA; CUPE v Canada (2004)............................ 5
Health Council of Canada Progress Report (2011) ............................................................................. 6
Reference re Assisted Human Reproduction Act (2010, SCC), Insite .............................................. 6
Chapter 2: Self-Regulation ............................................................................................................... 6
A. Regulated Health Professions Act (RHPA) ................................................................................ 6
B. Administrative Law Overview ....................................................................................................7
Standard of Review at Judicial Review Level (Dunsmuir) .............................................................. 7
Deference to the Discipline Committee ........................................................................................ 7
C. Complaints ....................................................................................................................................7
HPPC: Health Professions Procedural Code .................................................................................. 7
Complaints Process ...................................................................................................................... 7
Legal Requirements of a complaint process........................................................................................ 7
ADR S.25.1 ................................................................................................................................... 8
HPARB S.29: Review of ICRC decision ........................................................................................... 8
Judicial Review of Referral to Discipline Committee – S.70 .......................................................... 8
Procedural Fairness .......................................................................................................................... 8
Duty of Fairness Depends on Several Factors ............................................................................... 8
Botros v. Beadle ON Div, Walker v Health Professions Appeal and Review Board [2008] ............. 8
Scope of Investigation S.75 .......................................................................................................... 8
Katzman v ON College of Pharmacists [2002] OCA, Stanley v ON (Health Professions Appeal
and Review Board) [2003] ................................................................................................................. 8
Gore v College of Physicians and Surgeons of Ontario [2008] ........................................................ 9
S.37 Interim Suspensions ............................................................................................................. 9
Liberman v College of Physicians and Surgeons of Ontario ON Div [2010] ................................... 9
D. Discipline Process: Professional Misconduct ............................................................................. 9
Discipline Process: Standard of Proof ........................................................................................... 9
F.H. v. McDougall, SCC 2008 ........................................................................................................... 9
1. Standard of Review for Professional Misconduct ..................................................................... 9
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2. Written Standards of Practice of the Profession ........................................................................ 9
Misconduct is written in Law, Standards for Confidentiality......................................................... 9
Re Shulman and the College (1980) ON div court ............................................................................ 9
Misconduct is caught under Basket clauses Medicine Act S.33, 34 ............................................... 9
Davies et al v Ontario College of Pharmacists ON Div Ct [2003] .................................................. 10
3. Other Methods Establishing Standards of Practice in Discipline Proceedings .......................... 10
How standards become legally binding ............................................................................................ 10
Re Brett et al. v Board of Directors of Physiotherapy ..................................................................... 10
4. Conflict of Interest ................................................................................................................. 10
Re Cox and College of Optometrists of Ontario ON div [1988] ...................................................... 10
CPSO Policy on disclosing harm ...................................................................................................... 10
5. Sexual Abuse of Patients ........................................................................................................ 10
Professional misconduct penalties for sexual abuse S.51(5) ............................................................. 11
Sexual Abuse: Zero Tolerance Regime (Rosenberg v CPSO, 2006, ONCA) ................................... 11
Leering v. College of Chiropractors (2010) On.C.A. ...................................................................... 11
6. Expertise of Disciplinary Committee (Limitations) .................................................................. 11
Re Huerto and College of Physicians and Surgeons of Saskatchewan .......................................... 11
Wilson and College of Physicians and Surgeons of Ontario ON Div (2003) ................................. 11
7. Judicial Review ........................................................................................................................... 12
To Determine which Standard to use at Judicial Review............................................................. 12
Standard of Correctness ............................................................................................................. 12
Standard of Reasonableness ...................................................................................................... 12
Dunsmuir v. N.B. (2008) SCC, Canada v. Khosa (2009) SCC, Dr. Q. v. College Physicians &
Surgeons of B.C. (2003) SCC .......................................................................................................... 12
At Court of Appeal Reviewing Lower Review Court .................................................................... 12
8. Charter of Rights and Freedoms ............................................................................................... 12
Charter and Human Rights Code that Apply to Committee Decisions ......................................... 12
Section 11(h): R v Wigglesworth [1987] SCC .................................................................................. 12
Section 8: College of Dental Surgeons of British Columbia v Walker ........................................... 12
OHRC Section 6 Discrimination on place of origin: Siadat v Ontario College of Teacher ............. 13
Tribunals Can Decide Charter Issues: Nova Scotia (Worker's Compensation Board) v Martin ..... 13
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Section 7: Blencoe v BC (Human Rights Commission) 2000 SCC (See the 2-28 Harrington article)
.......................................................................................................................................................... 13
E. Systemic Problems in Regulating Members ............................................................................. 13
Assessing Ongoing Competence – Trebilcock article ................................................................... 13
Systemic Causes of Harm: Criminal Sanctions for Self-Reporting ................................................ 14
R. v. Omstead OCJ 1999 .................................................................................................................. 14
Mandatory reporting S.80-85 HPPC ................................................................................................. 14
Chapter 3: Complimentary and Alternative Care ....................................................................... 14
Krop v. CPSO (2002), Devgan v. CPSO (2005) ............................................................................... 14
Chapter 4: Malpractice – Negligence, Battery.............................................................................. 15
A. Negligence ............................................................................................................................. 15
Duty of Care............................................................................................................................... 15
Standard of Care (Crits v. Sylvester) ........................................................................................... 15
What is professional liability? Lapointe v. Hopital Le Gardeur (SCC) ........................................... 15
B. Causation............................................................................................................................... 15
But for test ................................................................................................................................ 15
Snell-Specific Situations in Relaxing “but for” Test ..................................................................... 15
Snell v Farrell [1990] SCR .............................................................................................................. 15
Material Contribution (Multiple Causes) Instead of “but for” ..................................................... 16
Causation of “Loss of Chance” Damages .................................................................................... 16
Laferriere v Lawson [1991] (SCC), De La Giroday v Brough (1997) BCCA, Cottrelle v. Gerrard
ONCA [2003].................................................................................................................................... 16
C. Determining Standard of Care (Ter Neuzen v Korn (SCC) [1995], Law Estate v. Simice BCSC) ... 16
D. Statutory Regulators' Liability – Duty of Care ....................................................................... 17
Edwards v. Law Society of Upper Canada 2001 SCC, Finney v. Barreau du Quebec [SCC 2004]
.......................................................................................................................................................... 17
E. Government Liability for Negligence ...................................................................................... 17
Government’s Duty of Care........................................................................................................ 17
Statutory Duty ........................................................................................................................... 18
Proximity analysis under stat duty – Taylor (para 76), Taylor v. Canada (2011) ONCA ................. 18
Statutory power ........................................................................................................................ 18
Ways to Nab the Government for Negligence ............................................................................ 19
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No liability; Mitchell Estate [2004] Ontario Superior Court of Justice .......................................... 19
Government usually does not owe private duty of care over duty to public: Abarquez v Ontario
(2009)................................................................................................................................................ 19
Chapter 5: Informed Consent – Negligence – Causation ............................................................. 19
Prove that the Lack of Informed Consent caused Harm .............................................................. 19
Modified objective test: Arndt v. Smith [1997] SCC........................................................................ 19
Rationale for a modified objective test: Caulfield article .................................................................. 20
Informed Consent Requirements to Continue Treatment ........................................................... 20
Ciarlariello v. Schachter 1993 SCC ................................................................................................. 20
G. Robertson, “Informed Consent 20 Years Later” (2003) ............................................................... 20
Informed C Outside Canada: Should Canada follow? .................................................................. 20
UK (Chester v Afshar) and Aus. (Chappel v Hart).......................................................................... 20
Health Care Consent Act – Consent for Capable Individual ......................................................... 20
No treatment without consent… ....................................................................................................... 20
Emergency Treatment .................................................................................................................... 21
Elements of consent S.11(1) ............................................................................................................. 21
“Fiduciary Law & For-Profit and Not-For-Profit Health Care” Littman ................................. 21
Chapter 6: Experimentaion and Innovative Therapy: Liability ................................................. 21
Halushka v. U. Sask (1965), Cryderman v. Ringrose (1978), Zimmer v. Ringrose (1981),
Coughlin v. Kuntz (1989) ................................................................................................................. 21
Brock v. Hsu (2006) ......................................................................................................................... 21
Chapter 7: Tort Theory: Critical Perspectives and Alternatives ................................................ 22
Rothwell v. Raes 1988 ................................................................................................................ 22
Picard & Robertson “Legal Liability of Doctors & Hospitals in Canada” ............................................22
Critique of Canadian Medical Protective Association .......................................................................22
CMPA 2010 Annual Report ...............................................................................................................22
Commission of Inquiry into the Blood System in Canada (Krever, 1997)..........................................22
Trebilcock, Future of Tort Law ..........................................................................................................23
National Steering Committee on Patient Safety (2000) ....................................................................23
Chapter 8: Substitute Decision-Making ........................................................................................ 23
A. Statutes – Health Care Consent Act ........................................................................................ 23
How does substitute decision-making work? .................................................................................... 23
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Capacity S.4 ...................................................................................................................................... 24
Substitute Decision Maker S.20 ........................................................................................................ 24
How decisions should be made then you use best interests S.21 ...................................................... 24
B. Best Interests of the Child ...................................................................................................... 24
B (R) v. C.A.S., Superintendent of Family & Child Services v. R.D. & S.D., (1983) ..................... 24
Sask Min. Social Services v. P. (1990) (Prov. Ct.), A. (Children), (2000)(UK) .............................. 25
Standard of Review for Consent Capacity Board ........................................................................ 25
A.M. v. Benes, OCA (1999), Starson v. Swayze, [2003] SCC .......................................................... 25
C. Consent from Mature Minors ................................................................................................. 25
Minor’s Consent Test Under CL (JSC v Wren)................................................................................ 25
What courts likely to consider (Re AY) ............................................................................................ 25
Pre-Statute History: JSC & CHC v. Wren (Alta) [1978], Re A.Y. ................................................... 25
Gilmour, “Children, Adolescents and Health Care” ......................................................................... 26
A.C. v. Manitoba [2009] SCC .......................................................................................................... 26
Chapter 9: Public Hospitals & LHINS .......................................................................................... 26
A. Governance of Hospitals ........................................................................................................ 26
B. Standard of Care in Hospital .................................................................................................. 26
What is the standard of care? Latin v. Hospital for Sick Children (2007) ....................................... 26
C. Negligence Liability of Hospitals ............................................................................................. 27
Yepremian v. Scarborough General Hospital (1978) (H.C.); (1980) (C.A.) ................................... 27
Vicarious Liability for interns, Vicarious Liability for nurses .......................................................... 27
Kielley v. General Hospital (1997), Weiss c. Solomon (1989) QC .................................................. 27
D. Privileges ............................................................................................................................... 27
Parameters of board decisions........................................................................................................... 28
Martin article (1993) ......................................................................................................................... 28
Shephard v Colchester Regional Hospital (1995) NSCA, Cameron v East Prince Health Authority
[1999] PEI ........................................................................................................................................ 28
Rosenheck v Windsor Regional Hospital (2010) (ONCA) .............................................................. 28
E. Quality of Care Information Protection Act, 2004 (QCIPA) ...................................................... 29
F. Reform – Improving Patient Experience ................................................................................. 29
Excellent Care for All Act ................................................................................................................ 29
Local Health Systems Integration Act, 2006: Highlights .................................................................. 29
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Ombudsman Ontario 2010 LHIN Report .......................................................................................... 29
Commitment to the Future of Medicare Act, 2004 – Part 3 (CFMA) ............................................ 29
Chapter 10: Health Insurance & Access to Health Care Services .............................................. 30
A. Health Insurance Act.............................................................................................................. 30
No private insurance S.14 ................................................................................................................. 30
Basis of decisions for delisting ......................................................................................................... 30
Shulman loses S.15 when government delist services, Shulman v. College of Audiologists ONSJ
Gen 2001 .......................................................................................................................................... 30
Out of Country Services: Health Insurance Act Regulation 552 ................................................... 30
B. Judicial Review: What is Generally Accepted versus Experimental Treatment? ...................... 31
Fiona Webster-Hart, Stein v. Quebec 1999, Kramer v Gen Mgr OHIP, Smith v Gen Mgr OHIP 31
Standard of Review: Flora v Ontario (CA 2008) ............................................................................. 31
C. Constitutional Decisions: Parallel Insurance ........................................................................... 32
Chaoulli v Quebec 2005 SCC .......................................................................................................... 32
Aftermath of Chaoulli?: Manfredi .................................................................................................... 32
ON situation – Commitment to Future of Medicare Act Part II ........................................................ 32
Blurring public, private divide – Flood and Thomas (2010) ............................................................. 32
Chapter 11 Independent Health Facilities .................................................................................... 32
A. Set-up; B. Private, Public Effects .............................................................................................. 33
Chapter 12: Health Information: Confidentiality, Access, Disclosure ....................................... 33
A. Common Law ......................................................................................................................... 33
Patient access to health records ......................................................................................................... 33
Fiduciary duties doctor owes patient (McInerney) ............................................................................ 34
McInerney v. MacDonald, [1992] 2 S.C.R. 138 .............................................................................. 34
Tort of intrusion upon seclusion, Jones v. Tsige, 2012 ONCA 32 .................................................... 34
B. Personal Health Information Protection Act (PHIPA), 2004 .................................................... 34
Who & What does PHIPA governs .............................................................................................. 34
Who is a HIC S.3, Who is an Agent S.2, Who is a Recipient? ......................................................... 34
What is Personal Health Information (PHI) S.4, What is Health Care S.2........................................ 34
Collecting, Use, Disclosure Obligations ....................................................................................... 35
Definitions: Collect, Use, Disclose ................................................................................................... 35
HIC Obligations S.11-13 .................................................................................................................. 35
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Collection, Use & Disclosure Requirements for HIC ....................................................................... 35
General limitations and requirements for collection for HIC S.30 .................................................... 35
Exceptions to receiving consent S.37-40 .......................................................................................... 35
Patient Rights ............................................................................................................................ 35
Enforcement of PHIPA ............................................................................................................... 35
Information Privacy Commissioner .................................................................................................. 35
Powers of IPC ................................................................................................................................... 35
How to Analyze Breach of PHIPA ............................................................................................... 36
Order HO-002, Ottawa Hospital 2006.............................................................................................. 36
Chapter 13: Health Services, Discrimination and Disability ....................................................... 36
A. Ontario Human Rights Code................................................................................................... 36
Disabilities ........................................................................................................................................ 36
S.17 Disability discrimination defence ............................................................................................. 36
B. Charter .................................................................................................................................. 36
S.15 Discrimination Test ............................................................................................................ 36
E. (Mrs.) v Eve (1986) SCC early Charter days, Eaton v Brant City (SCC 1997), Quesnel V ON
HRC 1995, Eldridge v BC SCC 1997, Granovsky v. Canada (2000) SCC, Freeman v. Cdn. Blood
Services (2010) (Sup. Ct.) ................................................................................................................ 37
Chapter 14: Public Health Law ..................................................................................................... 38
A. Public Health, Population Health and Human Rights .............................................................. 38
J. Mann et al., “Health & Human Rights” (1999) ............................................................................. 38
L. Gostin, Public Health Law: Power, Duty, Restraint (2000) .......................................................... 38
B.C. (Superintendent Motor Vehicles) v. B.C. (Council of Human Rts) (1999) SCC (Grismer) ... 39
C.P. v. Canada (CHRC) (1988) F.C.A............................................................................................. 39
Senate Committee, The Health of Canadians – The Federal Role (Kirby Report) ............................ 39
B. Federal, Provincial, Municipal Jurisdiction ............................................................................. 39
N Ries, “Legal Foundations of Public Health in CAD”; M. Jackman, “Constitutional Jurisdiction
over Health in CAD” (2000) ............................................................................................................. 39
Post SARS ........................................................................................................................................ 40
C. International Law; International Health Regulation; D. Selected Cases................................... 40
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C HAPTER 1 F EDERAL AND P ROVINCIAL J URISDICTION
& S PENDING
Constitutional Jurisdiction

Federal: health care is a field primarily under provincial jurisdiction


Jurisdiction over certain aspects of health is based on its interest in healthcare and wellbeing
(POGG), criminal law power, and spending power (indirect, but biggest)
o
Through tax and funding of provincial health care
o
Financial contribution to certain programs under provincial jurisdiction, generally subject
to provincial compliance with certain requirements, leverage of spending power
Provincial

Regulate matters of public health of a local nature within their boundaries

Authority over maintenance and management of hospitals

Determine what services are deemed to be medically necessary under the federal-provincial costsharing program in insurance system

Establish the rates at which medical and hospital services will be compensated
Historical Background – Stages of Funding
1.
50/50 – costs shared evenly between feds and provinces; feds concerned about the open-nature of the
agreement, while provinces were concerned about trespass into their jurisdiction
2.
Established Program Financing (EPF) (1977) – block transfers, transfer of tax points, cash; little reporting
3.
CHST (1995) – rolled federal transfers for health costs, social assistance and post-secondary education into
one; combination of cash and tax points
4.
CHT (2004) – separated transfers again, which made it easier to assess individual components of transfer
CANADA HEALTH ACT
Adopted in 1984, conditions and criteria with which the provincial and territorial health
insurance programs must conform in order to receive federal transfer payments under
the Canada Health Transfer

S.3 & preamble: primary objective – to promote, protect & restore physical and mental well-being and
reasonable access without money or other barriers

Broad policy rationale: all residents are entitled to universally accessible medical services; these are to
be provided based on need, not ability to pay
Services covered under Canada Health Act
Legal Governance of Health Care – Gilmour – 2013

Narrow focus: hospital services, doctor services, and a very limited list of surgical dental services

Services that are not under CHA do not have to be funded or meet criteria set out by feds
o

Other services, e.g. physiotherapy, dentist are not covered
What is not defined under CHA is also very important (e.g. not “medically necessary, required”)
o

9
Statue does not define “medically required”; provinces have to work that out; there has been
much litigation about what provinces cover as part of their plan
The Act makes a distinction between “insured health services” (i.e., those that have been deemed
“medically necessary”) and “extended health care services”
o S.2 – insured health services – must be fully insured by provincial insurance plans – comprise:

Hospital services medically necessary for maintaining health, preventing disease or
diagnosing or treating an injury, illness or disability, including accommodation,
meals, physician, nursing services, drugs, medical, surgical equipment, supplies;


Any medically required services rendered by medical practitioners; and
Any medically or dentally required surgical-dental procedures which can only be
properly carried out in a hospital
Conditions for full federal cash contributions (Ss.7-12)
1. Public administration; 2. Comprehensiveness; 3. Universality; 4. Accessibility; 5. Portability; also, ban on
extra billing (doctors cannot charge patient on top of OHIP) & user fees (hospitals) (Ss.18, 19)

Enforcement: breach Ss.7-12, fed may reduce cash contributions, only after negotiating province
(S.15)

However, feds rarely reduce payments
o

In New Brunswick, for instance, which has consistently refused to pay for abortions
performed in private clinics, feds have merely warned the province that its policy violates the
CHA
If provinces allow extra billing or user fees: feds must reduce cash contributions (S.20) (mandatory)
R O M B AU T
V NB 2001 CA – C A PP I N G NU M B ER OF PH Y S I C I A NS I S
L E G I T T O C O NT R OL H EA L T H C OS T S

Claimants challenged the constitutional validity of NB’s Medical Services Payment Act

Act allowed the provincial government to limit the number and distribution of doctors in the province

Act blocked most opportunities in NB for new physicians to start practice – mostly women

The appellants alleged that their Charter rights to association, mobility, liberty and equality were violated

Decision: CA rejects mobility argument
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
In order for there to be S.6 violation, the legislation must have a primary objective of
discriminating against people who are outside of province versus already in province

Court found that objective of MSP Act is to control health expenditures not to discriminate

Further, no discrimination because every doctor out of province – there is no NB med school
CAMERON
V NS (1999) NSCA – WH A T I S M E D I C A L L Y NE C ES S A R Y I S
U P T O T H E P R O VI NC E ; CHA R EQ U I R EM E NT O F C OM P R EH E NS I V E D O ES
N OT M EA N A L L T Y P ES O F C A R E A R E I NC L U D ED

IVF is not covered by the public health care insurance plans in any Province of Canada with the
exception of Ontario which only covered women with blocked tubes

Specific IVF procedure, called ICSI for male infertility, had not been available in Nova Scotia

Claim: Breach of Canada Health Act; Breach of Charter S. 15 discrimination on disability of infertility

Decision under CHA; Issue: is it medically necessary and so should be insured? No

In deciding what is “medically necessary”

Feds didn’t define term because it’s up to province to decide; can de-insure services as they see fit


Expert determination that costs for ICSI, success and risks does not warrant public funding
All court can do in this type of application for judicial review is decide

Whether province complied with its own process to determine funding for health care services

Whether they acted contrary to the Charter

Discrimination issue: yes, but saved under S.1 of Charter

Deference to province, “requires latitude” balancing individual interests, constrained finances

Note these cases often fail, deference to legislature, since lawsuits fail, ADR may be way to go
CUPE
V C AN A D A (2004) – D E F ER ENC E T O PR OV I NC E A ND F ED I N
PO L I T I C A L Q U ES T I ONS , E . G . WH ET H E R T H EY F O L L O W CHA

Claimants attempt to get fed to determine that province not complying with CHA requirements

Minister of Health has discretionary obligation, S.23 CHA to report annually to Parliament on the
operation and administration of the legislative scheme

Decision: political questions between f and p are not justiciable; court won’t get involved
H E AL T H C O U N CI L
OF
C AN AD A P RO G RE S S R EP O RT (2011)

Some progress on commitments made since 2003 First Minister’s Accord

Feds had provided lot more money, province agreed to make improvements in several areas
Health and Federal-Provincial Financial Arrangements: Lost Opportunity by Maslove

M favors more clear fed participation so that fiscal commitment is unambiguous to provinces
Legal Governance of Health Care – Gilmour – 2013

Medicare system is too decentralized, different across provinces for M

Cash transfers = only effective leverage fed has to uphold CHA principles
11
Reference re Assisted Human Reproduction Act (2010, SCC)

Feds exercising federal power for health, but touches on criminal powers

Quebec wants to know if AHRA is constitutionally valid under federal powers

Decision: 4-4-1 with Cromwell’s decision as tie-breaker

Some provisions (prohibition ones) are valid exercises of criminal law power, others struck down

Ultra vires of federal jurisdiction?


Step 1: Pith and Substance

Examine purpose and effects of challenged provisions

Provisions permit minute regulation of every aspect of research and clinical practice and
do not simply prohibit “negative practices”
Step 2: Classify matter as S. 91 or 92

Best classified as being in relation to three areas of exclusive provincial legislative
competence: the establishment, maintenance and management of hospitals; property
and civil rights in the province; and matters of a merely local or private nature in the
province
Insite Case – safe injection site

Not allowing Insite S.52 exemption from sanctions of Controlled Drugs and Substances Act

Insite is a health facility, so provincial jurisdiction

Valid under federal powers, not ultra vires

Pith and substance are valid exercises of the federal criminal law power; fact of incidental effect on
regulating provincial health institutions does not mean that they are constitutionally invalid

Interjurisdictional immunity, no, decisions about what treatment may be offered in provincial health
facilities not protected core of power over health care not, therefore, immune from federal
interference

However, the SCC found minister’s discretion not to exempt was arbitrary and violated S.7

SCC requiring the two to live together – feds have legitimate role protecting public health, safety, but
province has legitimate role in determining how to best respond to scourge of drug addiction
C HAPTER 2: S ELF -R EGULATION
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12
A. R EGULATED H EALTH P ROFESSIONS A CT (RHPA)
RHPA is where College of Physicians and Surgeons gets its powers; umbrella statute
regulating medical professions (list of professions is found in schedule 1)

C O N T R O LL E D
A CT S
S.27 – “no person shall perform a controlled act unless authorized to perform
it, or the performance has been delegated”

H AR M
C LA US E
S.30 – no person other than a member treating or advising within scope of
profession will advise or treat, where reasonably foreseeable serious bodily harm may result from advice,
treat, omission

R I G HT

C O N FI D E N T I A LI T Y S.36 – applies vis-a-vis the college; everyone employed and every member of
TO TITLE
S.33 – regulates who can use the term “doctor” (S. 33)
the governing body shall keep confidential all information that comes to his knowledge during his duties;
exception when serious bodily harm is a risk; but can only disclose to the extent that it is necessary to
reduce harm (S. 36)
o

Remember that this is provincial legislation, and that federal criminal power will override this
All Colleges have duty to serve & protect public interest (HPPC S.3[2])
B. A DMINISTRATIVE L AW O VERVIEW
The Review Board conducts only a review, not a fresh or further investigation; not a
hearing; no evidence called; can go to Divisional Court (judicial review); applies to ICRC,
HPARB S.70, etc.

Procedural fairness (notice of allegations; bias against member); Error of law or fact; Abuse of discretion
(e.g, inappropriate referral to discipline committee); Constitutional rights, Charter (search and seizure;
freedom of expression, e.g. no advertising)
STANDARD OF REVIEW AT JUDICIAL REVIEW LEVEL (DUNSMUIR)
There are two paths in deciding if lower court did right thing
1.
Standard of Correctness (least deference, is the decision correct in law?)

2.
3.
Questions of law, review boards held to legal standard; when there are experts interpreting law –
then standard of reasonableness (Shulman, Davies)
Standard of Reasonableness (used in most if not all professional misconduct cases, more deference)
o
Defer to decision-maker in expert situations, or where statute says to defer to decision-maker
o
Questions of fact, or mixed law and fact, courts more likely to find that standard is
reasonableness (not supported by any reasons that can stand up to a somewhat probing
examination)
Question of law – usually a standard of correctness S.70(2); Fact, mixed – usually reasonable S.70(2)
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DEFERENCE TO THE DISCIPLINE COMMITTEE
Usually, these deference cases use a standard of reasonableness (Shulman, Davies,
Cox, Rosenberg)
1.
2.
Interpretation only needs to be reasonable
a.
Interpretation of misconduct reasonable: way of disclosing info against public interest (Shulman)
b.
Davies ON Div 2003 agrees: interpretation only needs to be reasonable para 16
Experts in better position than court to judge professional misconduct
a.
Members have special knowledge, training and skill (Davies para 8)
b.
No other body could appreciate as well, problems, frustrations that beset fellow member
(Davies)
c.
They know the market of profession better (Re Cox)
3.
Better to assess public interest, too (Re Shulman)
4.
Better position to assess professional ethical standards (Rosenberg under sexual abuse)
5.
Better position to assess correct penalty (Wilson v College)
Find these cases under Standards of Professional Conduct
Judicial review can (Cameron v East Prince)

Quash decision; Declare right of a person who is subject to tribunal’s decision; Refer the matter back to
the tribunal for further consideration either generally or in accordance with specific findings of the judge
C. C OMPLAINTS

HP PC : H E A L T H P R O F E S S I O N S P R O C E D U R A L C O D E – F O U N D I N S C H E D U L E 2 O F
RH P A
The nuts & bolts of how self-governing bodies (Colleges) operate; also outlines the complaints process

Primary object outlined in the HPPC is to serve and protect the public interest (S.3[2]), see Gore

S.3(2) – “serving public interest” justifies delegating state power to private bodies
1.
COMPLAINTS PROCESS
Submitting a complaint S.25(4)

2.
Investigated by Inquiries, Complaints, and Reports Committee (ICRC) – investigative, not hearing

3.
Complaint must be written, must ID member, concern, should have intention of bringing
complaint
S.26(1) – a panel, after investigating complaint, considering report, considering member
submissions, making reasonable efforts to consider all records, documents it considers relevant
ICRC can S.26(1)
Legal Governance of Health Care – Gilmour – 2013
4.
14
a.
Refer matter to discipline committee – evidence called and determination made
b.
Can call member in and caution (not sufficiently grave to go to DC)
c.
Can require certain continuing education or remediation – perhaps remedial courses
d.
Can take no action (e.g. the did not water flowers complaint)
e.
Might decide it does not warrant action by governing body
f.
Can call for other action that is not inconsistent with health professional act or code
g.
If consent, limited cases where it can undertake ADR (must happen before referral to discipline)
h.
Cannot refer to quality assurance committee S.26(3)
If complainant or member is unhappy with ICRC decision, can seek judicial review at Health Professions
Appeal and Review Board (HPARB) (independent body) – S.29

However, member can’t do this if decision being contested was to refer to DC S.29(2)
S.7(2,3) can exclude public if harm greater than benefit. Legal Requirements of a complaint process

Need proper complaint; 14-day notice to member (S.25[6]); Opportunity for member to respond (S.25.2);
Reasonable decision standard, S.26; Referral to DC must be related to complaint; ADR sometimes ok with
consent S.25.1; Caution in front of panel; Cannot refer matter to quality assurance committee
Goals of complaints system


Identify problem practitioners; Identify problem areas, systemic problems; Resolve issues that can be
resolved (not everything has to go on to DC); Provide answers to patients; Allow people to be heard;
Provide neutral view, assessment of what transpired; Give professional credibility

ADR S. 25. 1
Member and complainant can consent to ADR, but resolution must go back to panel, can accept,
reject

Panel will not know about what transpired at ADR process other than resolution
HPA R B S. 29 – R E V I E W O F ICR C D E C I S I O N
If the ICRC has decided to refer member to disciplinary committee after an investigation, the member
cannot challenge this through HPARB (29[2])

Power is limited – time-limited ability to review (S.35)

Role of HPARPB, para 11 of Stanley
o
The Review Board conducts review, not a fresh or further investigation; No evidence is called; Still, a
minimal level of procedural fairness must apply
J U D I C I A L R E V I E W O F R E F E R R A L T O D I S C I P L I N E C O M M I T T E E – S. 70
Misconduct under HPPC S.38; Referred by ICRC; Appeal to Div Court; Test for referral to discipline (Brett I)
1. Do the allegations warrant a referral to discipline (seriousness test); and
2. Could the evidence meet the onus of proof (sufficiency test)
Legal Governance of Health Care – Gilmour – 2013
15
PROCEDURAL FAIRNESS
If procedural fairness breach at ICRC or DC, can seek judicial review, part of admin law,
breaches of PF are

Not fair notice, Non-disclosure of evidence to member Liberman para 38; Bias; Error in law, fact; Abuse of
discretion in referral to discipline, etc.
Stanley – Committee used hearsay evidence; did not let physician respond to expert evidence; proceeding at IRCR
took 1350 days instead of recommended 120 days
Du ty of f a irn ess D E P E N D S O N S E V E R A L F A C T O R S
Botros v Beadle at para 29
1.
2.
3.
4.
5.
The nature of the decision being made (e.g. at IRCR, D of F is limited)
The nature of the statutory scheme
The importance of the decision to the individual or individuals affected
o In Stanley para 17, “here, a senior surgeon with a long, unblemished career stood to have his
reputation tarnished; he was entitled to a basic level of fairness in the proceeding”
The legitimate expectations of the person challenging the decision and
The choices of procedure made by the agency itself
B O T R O S V . B EA D L E ON D I V – I N C O NT E XT O F ICRC A ND BEC A U S E
R O L E I S A S A S C R E EN E R , N OT H EA R I N G , D O F F I S L I M I T ED

Member who was sent to cautioning claimed didn’t get full disclosure (names of experts ICRC consulted)

Complaints made against member, many years complaint-free practice; improper diagnosis of sleep apnea

Committee had not given name of experts that college consulted as part of complaint
o Duty of fairness met; D of F is variable and context-specific
o The ICRC owes duty of procedural fairness, given potential effect of its findings on the member,
but the ICRC just has a screening function (not punitive) so this duty of fairness is limited
o Duty is also limited by statutory language in S.32(3)
o
The names of experts had been withheld from member in an ICRC report, but not the substance
of assessment, board was reasonable in exercising its discretion in limiting disclosure
Walker v Health Professions Appeal and Review Board [2008]
1.
Here, the applicant patient wanted disclosure of expert’s identity so that he could challenge
his evidence through cross-examination; decision: No
2.
Scope of the duty of fairness in this situation is very limited for two reasons
3.
a.
First, the statue permits the protection of experts
b.
Second, the complainant is not at risk of the loss of any profession or occupation
Info sought wouldn’t make difference to outcome, so the duty to him is commensurately low
S C O P E O F I N V E S T I G A T I O N S. 75
ICRC entitled to
Legal Governance of Health Care – Gilmour – 2013

16
1. Can only refer a matter to DC if it is related to complaint as per S.26 (Katzman); 2. If matter is unrelated,
ICRC can get a registrar to investigate under S.75; 3. ICRC cannot determine matters of credibility *****
can’t make finding of disputed facts at this stage (Stanley); 4. Can require a member to undergo an
assessment (Gore); 5. Can observe members (Gore)
Katzman v Ontario College of Pharmacists [2002] ONCA – ICRC’s Referral to the DC has
to relate to the matter that was the subject of the complaint according to S.26(1)

The complaint has to be specific enough that it clearly relates back to the referral; the ICRC can’t tack on
anything else that comes to its attention

Court must balance public interest goal with procedural fairness to the member

Court notes other avenues if outside Committee’s jurisdiction – see also HPPC S.75
Stanley v ON (Health Professions Appeal, Review Board) [2003] – procedural fair,
credibility, standards of review

Doctor cautioned for a conducting a breast exam for no reason; review at Divisional Court

IRCR: caution; reasons were hearsay evidence of friend of complainant; HPARB: upheld decision

Judicial decision: complaints committee (now ICRC) cannot find credibility; committee used hearsay
evidence; did not let physician respond to expert evidence; overturned caution
Gore v College of Physicians and Surgeons of Ontario [2008]

ON Div affirms ICRC actions

Expanding investigative powers of college to being able to observe and interview practitioners under HPPC

Registrar would then report this to ICRC; Investigator then can be a witness in ICRC proceeding

College only has power that statute gives (look at ordinary meaning, within context, purpose of legislation)

Distinguish interview, self-incrimination; regulatory process to protect public, not criminal proceeding

Now S.75 – registrar has power to put investigation into place
In te ri m S u s p en s ion s S . 37
Requirements
1.
Allegation has to been referred to discipline committee but hearing has not happened yet; and
2.
Conduct of member exposes or likely to expose his or her patients to harm or injury
3.
a.
There must be evidence of probable harm to conclude threat to public health (Liberman)
b.
Committee can accept, reject evidence, value one expert evidence over another, form opinion
Materials of evidence must be disclosed to member
Liberman v College of Physicians and Surgeons of Ontario ON Div [2010]

Patient died after anesthesia in liposuction procedure; anesthesiologist had 11 year practice, no
complaints
Legal Governance of Health Care – Gilmour – 2013

4 expert anesthesiologists in total said no overall risk of harm to others

Assessment must be based on some evidence, not just below standard conduct, evidence of probable
harm

Court must balance protecting the public interest with the fact that an interim order is very harsh
D. D ISCIPLINE P ROCESS : P ROFESSIONAL
M ISCONDUCT

Referral of specific allegations of professional misconduct (by ICRC)

Formal notice of hearing, interim orders, disclosure, hearing, etc.
DISCIPLINE PROCESS: STANDARD OF PROOF
 Proof on a balance of probabilities (McDougall, SCC); college bears burden, like plaintiff in civil cases
F.H. V . M C D O U GA L L , SCC 2008

The burden of proof used to be the civil standard of proof at the high end (“proof must be clear &
convincing, based on cogent evidence accepted by the tribunal,” Bernstein); Onerous on member

Now only 1 civil standard of proof, proof on a balance of probabilities

Standard of reasonableness involves asking “after a somewhat probing examination, can the reasons
given, when taken as a whole, support the decision?” (Wilson v College of 2003, para 11)
1. S TANDARD
OF
R EVIEW
FOR
P ROFESSIONAL M ISCONDUCT
2. W R I T T E N S TA N D A R D S O F P R A C T I C E O F T HE P R O F E S S I O N

Can find some standards under each profession’s regulatory act

See Professionals Misconduct Regulations under Medicine Act for doctors

M I S C O N D U C T I S W R I T T E N I N L A W – E. G . S T A N D A R D S F O R C O N F I D E N T I A L I T Y
Shulman, Medicine Act S.10, giving information concerning the condition of a patient or any services
rendered to a patient to a person other than the patient or his or her authorized representative except
with the consent of patient or his or her authorized representative or as required by law – includes
patients not yours
Exceptions to confidentiality S.1(2)

Not misconduct if giving info to practitioner for the purpose of providing care to the patient
o

Concept of circle of care where circle of health practitioners provide care
Ok for purposes research, health administration, planning, if person reasonably believes the person will
take reasonable steps to prevent access to others
Re Shulman and the College (1980) ON div court
17
18
Legal Governance of Health Care – Gilmour – 2013

Morty Shulman was a coroner who had a newspaper column; he learned that someone else’s patient died
because of wrong transfusion; he published this in the paper; this was the first time family heard of this; a
complaint was launched, not by family; he was found guilty even though it wasn’t his patient

Deference to the discipline committee


They are in better position than court to assess professional misconduct

The wording of the regulation only mentions a patient, not the doctor’s patient

Decision was reasonable, the way of disclosing info was against public interest
You still want public to be warned; but don’t want it published in a paper without procedural fairness to
doctor and notice to family, etc.
1.
M I S C O N D U C T I S C A U G H T U N D E R B A S K E T C L A U S E S O F M E D I C I N E A C T S. 33, 34
Disgraceful, dishonorable or unprofessional conduct (33), unbecoming (34)
2.
Conduct must be unrelated to actual application of skills of profession (Brett II p. 4-5)

These are BA SK ET C LA U S E S meaning they have a potential wide reach
Davies et al v Ontario College of Pharmacists ON Div Ct [2003] – court upheld discipline
committee’s guilt finding; standard is reasonableness because experts interpreting the
statute

Pharmacist was engaging income tax evasion as part of director of pharmacy; Brought to attention of
college and referred to discipline; Found guilty of professional misconduct

Is this conduct relevant to the conduct of pharmacy?
o
Reflects adversely on profession and on individual pharmacists, so fits the statute
3. O THER M ETHODS E STABLISHING S TANDARDS
P RACTICE
OF
Do not find the specific misconduct listed under a statute and misconduct related to
application of professional skills so not caught under S.33, 34 of dishonor etc.

You can use “a responsible and competent body” to establish standards of practice if (Brett II p. 5):
1.
Misconduct does not infringe a specific law
2.
Misconduct relates to the methods, skills, techniques of member in performing his professional work
o
As opposed to S.33 or 34 where unrelated to profession but dishonorable as in Davies
A responsible and competent body of professional opinion must support that conduct
or judgment (Brett II)

Body doesn’t have to be from same profession, e.g. in Brett, physicians supported Brett, a physiotherapist
o
Physicians can provide some of same treatment that physiotherapists do, certainly have training
19
Legal Governance of Health Care – Gilmour – 2013

Even if the body is a minority – how else may field progress
H O W ST AN DA R D S
G R AS S E LY
1.
C A MP B E L L
AN D
Practice becomes normative or standard in profession
o
2.
BE CO M E L E G AL L Y BI N DI N G ,
People agree it is in proper performance of duties, often, through dissemination in
profession, consideration in professional community
Courts say it is – they are final arbiters
o
Expert evidence, domestic codes, international codes, laws, adoption in regulation
Re Brett et al. v Board of Directors of Physiotherapy

Physiotherapist used auxiliaries who saw patients – not trained physiotherapists

She was found guilty of professional misconduct

Where the alleged misconduct does not infringe a specific law, and it relates to conduct or judgment of
member in performing work, then the member cannot be found guilty of misconduct if there exists a
responsible and competent body of professional opinion that supports that conduct or judgment
4. C ONFLICT

OF I NT EREST
Found in professional misconduct regulation of Medicine Act
o
Conflict of interest will be context dependent, deferred to profession
o
Must be rationally connected to statutory objective, which can include enforcing ethics
Conflict of interest definition
1) Personal interest sufficiently connected to professional duties
o
Deference to college to decide that – they know realities of market
2) That might reasonably be apprehended to give rise to a danger of actually influencing the exercise of the
professional duty; don’t need to prove actual influence by personal interest on professional duty
Re Cox and College of Optometrists of Ontario ON div [1988]

Optometrist was getting favorable rent from eyeglasses store

College rationally using legislative powers finding conflict; rationally connected to statutory objective

Conflict of interest means a personal interest so connected with one’s professional duty that it might be
reasonably apprehended to give rise to a danger of actually influencing the exercise of that professional
duty

In conflict of interest situations, court will defer to the Colleges because of their expertise
CPSO P O LI CY

O N DI SC L O SI N G H AR M
Example of self-regulating professions developing standard of practice members are expected to follow
20
Legal Governance of Health Care – Gilmour – 2013
o
It’s only guideline; it’s not legally binding, not statute, by-law, nor regulation
o
Affirming its position that patients entitled to info about all aspects of their health care
o
Harm is: outcome that negatively affects health or quality of life that occurred in health care
treatment not directly related to illness
o
What to do: acknowledging and discuss a negative outcome; but how bad do things need to get
5. S EXUAL A BUSE
OF
P ATIENTS
D E F I N I T I O N S. 1 (3) H P PC , B U T O T H E R F O R M S O F S E X U A L C O N T A C T C A N B E
CAUGHT UNDER BASKET CLAUSE
(a) Sexual intercourse or other forms of physical sexual relations between the member and the patient
(b) Touching, of a sexual nature, of the patient by the member
(c) Behavior or remarks of a sexual nature by the member towards the patient

Note that each profession will define when a person stops being a patient

E.g. types of practitioners who may be working with particularly vulnerable patients

S.51(1)(b.1) sexual abuse offense is part of professional misconduct
P R O FE S SI O N AL M I S CO N DU CT P EN A LT I E S
S.51(5)

FO R
S EX U A L A BU S E
Difference between S.51(2) and S.51(5), latter specific to sexual abuse
o
S.51(5) panel must reprimand the member

o
Revoke certificate of registration if sexual intercourse, masturbation, etc., occurred
S.51(2) panel may make recommendations to the registrar, etc.
Mandatory reporting S.85

A member shall file a report in he has reasonable grounds, obtained in the course of practicing the
profession, to believe that another member of the same or a different College has sexually abused a
patient

How likely is it that a license will be reinstated after being revoked in 51(5)? College has to act to protect
the public’s interest, so the committee has to be persuaded that the member no longer poses a threat
S EX U A L A BU S E : Z E RO T O L E R AN C E R EGI M E (R O S EN B ER G

No spousal exceptions (Rosenberg, Leering)

You only need a sexual relationship + patient, doctor relationship (Leering para 37)

The provision is interpreted broadly under zero tolerance because
o
Sexual abuse is serious, harmful and should be eradicated S.1.1 of HPPC
o
Legislature realized they can’t enumerate every specific situation
V
CPSO)
Legal Governance of Health Care – Gilmour – 2013
o
Deference to college to interpret if relationship is sexual abuse (Rosenberg)
o
Interpretation of “incidental medical care” (Leering para 38)
o
Deference to college, as part of determination if relationship was doctor, patient
o
Regular appointments in office is not “incidental”
o
Incidental would be like if spouse had an accident and doctor spouse had to attend to them
21
Rosenberg v. CPSO (2006) ONCA

Relationship began as physician-patient; started living together, plans to get married, she is still his patient

Relationship ended; patient complained to college

Defence argues: provisions certainly were never meant to apply to spouses, common law relationship

Court upholds zero tolerance policy; Standard of Reasonableness met
Leering v. College of Chiropractors (2010) On.C.A.

Patient and doctor were spouses; Dr. started giving free treatments to spouse; Divorce; Dr. sued patient
for billing fees; Spouse complained to college ***** now up to individual colleges, ON still doesn’t allow

Disciplinary Committee (prevailed at ONCA); Mandatory revocation of certificate; Reasons
o

Frequency of treatment showed not simply incidental to spousal relationship
ONCA restored this discipline committee decision after Divisional Court overturned it
o
All you need is a sexual relationship + patient, doctor relationship para 37
o
The college does not need to look into intricacies of sexual and emotional relationship between
member and patient to find sexual abuse, waste of time
6. E XPERTISE

OF
D ISCIPLINARY C OMMITTEE
COMMITTEE NOT ENTITLED TO DETERMINE STANDARD OF CARE BY REPLACING
E V I D E N C E W I T H O W N E X P E R T I S E (H U E R T O )
If DC discusses medical opinion of case behind closed doors: Lack of notice & chance for member to
respond; Influencing lay appointees; Cannot cross-examine DC; Increased probability of mistakes; Member
would not be able to appeal DC (no open deliberation)

Discipline Committee knowledge: their own medical knowledge is beneficial (Huerto); can judge and
assess expert evidence; expertise is in enhanced understanding of terminology, credibility, etc.

But cannot determine SOC by replacing evidence of specialized expert with own expert knowledge

Types of expertise: Terminology; General professional knowledge; Assessing credibility of expert evidence;
Professional values (eg. Shulman, Davies); Clinical standards (eg. Huerto);
Re Huerto and College of Physicians and Surgeons of Saskatchewan

Cardiologists (experts) thought H was competent but DC did not
Legal Governance of Health Care – Gilmour – 2013
22

Cardiologist unable to get hospital privileges; Equipped own office to standards hospital coronary care unit

Huerto was denied procedural rights to a hearing
o
Huerto was afforded no opportunity to test misuse of personal medical knowledge of committee
o
What specific knowledge did each member bring to bear on the admitted occasions?
Wilson and College of Physicians and Surgeons ON Div (2003) – expertise of DC on
penalties

Standard of review for penalty is reasonableness because deference to DC

ON Div: sanction was unreasonable on W

However, prof thinks ON Div applied a correctness standard of irrelevant evidence
o
Operation of clinic irrelevant to work as a neurologist

W, a neurologist, and EEG technician ran EEG testing facility for brains

EEG technician provided tests; Tech had Hep B; Tech used improper sterilization techniques

Several patients infected with Hep B; One died, others seriously ill, other carriers

DC revoked license under S.51(2)

Divisional Court says penalty was unreasonable; gave their own penalty
o
Other Drs. said W fine neurologist; Unreasonable to prevent practicing; W was only dangerous as
medical director, supervisor, not neurologist; Revocation serious, is a quasi-criminal thing
7. J U D I C I A L R E V I E W
TO DETERMINE WHICH STANDARD TO USE AT JUDICIAL REVIEW
Consider Dunsmuir and Dr. Q v College
1.
Balance these factors
i)
Privative clause – provision in statute that removes the court’s ability to review decisions of a tribunal
ii)
Tribunal’s purpose – look to statute because this is where tribunals get their power; purpose of
legislation and provision
iii) Nature of question – does the question of law, issue affect other parts of legal system?
iv) Expertise of tribunal – in comparison to review court
2. Do the factors suggest deference? If so, judicial review court must use standard of
reasonableness
3.

If little or no deference – judicial review uses standard of correctness
STANDARD OF CORRECTNESS
Questions of law usually use correctness
Legal Governance of Health Care – Gilmour – 2013
o
You have to get the law right, so less deference to committee or board
o
Except sometimes when experts interpreting law – then its reasonableness (Shulman, Davies)
o
Questions of constitutional law and division of powers
23
 A “true question of jurisdiction”
 Questions of general law that are both of central importance to the legal system as a
whole and outside the adjudicator’s specialized area of expertise
 Questions regarding jurisdictional lines between two or more competing tribunals

STANDARD OF REASONABLENESS
QUESTIONS OF FACT, MIXED LAW AND FACT, COURTS LIKELY TO FIND THAT APPLICABLE
STANDARD IS ONE OF REASONABLENESS

WHERE THE REASONABLEN ESS STANDARD APPLIES, IT REQUIRES DEFERENCE (KHOSA PARA
59 )
 Used in most professional misconduct case with deference to DC if DC decision was reasonable


Court should determine if the outcome falls within “a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, at para 47)
What is Reasonableness (Dunsmuir) – decision must be reasonable based on the evidence; consider

Existence of justification, transparency & intelligibility within decision-making process

Not necessarily the outcome that the reviewing court would reach, but within reasonable range
Dunsmuir v. N.B. (2008) SCC – only 2 standards of review, correctness & reasonableness
Canada v. Khosa (2009) SCC – affirms Dunsmuir; Federal court set aside IRB decision;
Erred, must give deference Dr. Q. v. College Physicians & Surgeons of B.C. (2003) SCC

DC found misconduct and suspended Doctor’s practice

Appeal to trial court – effectively reviewed evidence, substituted her views for the views of DC

SCC says TJ exceeded the limits of judicial review authorized by the Act by engaging in a reconsideration of
the Committee’s findings of fact ; CA erred in failing to set aside the order of the reviewing judge
AT COURT OF APPEAL REVIEWING LOWER REVIEW COURT
Determine whether reviewing judge had chosen and applied the correct standard of
review, if not, assess the administrative body’s decision in light of the correct standard
of review, reasonableness (Dr. Q para 43)
8. C HA R TE R O F R I G HT S A N D F R E E D O M S
When Disciplinary Committees apply the Charter and Human Rights Codes, apply
correctness standard
CHARTER AND HUMAN RIGHTS CODES THAT APPLY TO COMMITTEE DECISIONS
R
V W I G G L ES W O RT H [1987] SCC – S E CT I O N 11( H ) – C R I M I NA L
C H A R G ES , D I S C I P L I NA R Y H E A R I NG N OT D OU B L E J E O PA R D Y
24
Legal Governance of Health Care – Gilmour – 2013

Discipline proceedings against RCMP; Officer was charged criminally with assault, but also faced
disciplinary charges by his professional regulatory body, already convicted criminally

S.11(h) of Charter “any person charged with an offence has right, if finally acquitted of offence, not to be
tried for it again and, if finally found guilty, punished for offence, not to be tried or punished for it again”

Reasoning: discipline proceedings are regulatory, protective or corrective; Court concludes that S.11 only
applies to criminal or penal matters – doesn’t apply in the context of disciplinary proceedings

Test: whether or not the individual faces “true penal consequences”
College of Dental Surgeons of British Columbia v Walker – Section 7 (vagueness,
principle fundamental justice)

S.33 – act or omission relevant to medicine that, having regard circumstances, reasonably be regarded by
members as disgraceful, dishonorable, unprofessional; S.34 – conduct unbecoming of a physician

Allegation of professional misconduct for poor quality of care and billing of insurer

Basket clauses upheld; not vague; provides adequate basis for legal debate
S I AD AT
V O N T ARI O C O L L EG E O F T E A CH E R – OHRC
DI S C R I MI N A T I O N BE C A U S E O F P LA C E O F O RI GI N
S EC T I O N 6 –

S.6 of the Ontario Human Rights Code explicitly confirms the right of every person to equal treatment with
respect to membership in any self-governing profession without discrimination because of place of origin

Iranian trained teacher (who came as a refugee) tried to join college of teachers

College told her to get school transcripts from Iran; but she was persecuted in Iran and can’t get them

College not let her qualify in other ways (accommodate) even though statute lets them do so (para 47)

OHRC, discrimination; whether prima facie discriminatory standard bona fide occupational requirement

Onus on the person or organization imposing the requirement to show (para 49, Siadat)
o
That the standard was adopted for a purpose rationally connected to the performance of the job
o
That the standard was adopted in an honest and good faith belief that it was necessary
o
Standard actually is reasonably necessary to accomplish that legitimate work related purpose

Here “must be demonstrated that impossible to accommodate individual employees
sharing characteristics of claimant without imposing undue hardship upon the employer”
N O V A S CO T I A (W O RK E R ’ S C O MP EN S AT I O N B O AR D )
T R I BU N A L S C AN D E CI D E C H ART E R I SS U E S
V
M ART I N –

Admin tribunals to decide questions of law arising under a legislative provision are presumed to have
concomitant jurisdiction to decide the constitutional validity of that provision

The applicant should be able to assert rights in the most accessible form
Legal Governance of Health Care – Gilmour – 2013
25
Blencoe v BC (Human Rights Commission) 2000 SCC (Harrington article analysis) –
Section 7 – life, liberty security of the person, not to be deprived thereof except in
accordance with the principles of fundamental justice

S.7 provides protection against some aspects of admin procedure, such as compulsory testimony if process
involves restricting or compelling choices on matters of fundamentally intimate, personal nature
o
E.g. G(J) risked to lose 3 children to children’s aid society
o
However, section 7 will seldom, if ever, provide protection
o


Takeaway from Blencoe
o
Procedural things (compel documents, search, seize [S.8], compel testimony) subject Charter
o
Not clear whether discipline process, whole of it, substantive part, subject to review under
S.7
Even if S.7 doesn’t apply, can seek judicial review
o

A combination of being subjected to admin process and extraordinary delay, or another
egregious admin deficiency, might coalesce to found claim
Same deficiencies giving rise to S.7 claims may give rise to abuse of process claim
Delay subjected B to media coverage that ruined career, caused family, social, psychological hardship
o
SCC says not serious enough delay or psychological trauma imposed by state on Blencoe
+++++E. S YSTEMIC P ROBLEMS IN R EGULATING
M EMBERS
A S S E S S I N G O N G O I N G C O M P E T E N C E – T R E B I L C O C K A R T I C L E – “R E G U L A T I N G
LEGAL COMPETENCE”
Two different classes of regulatory instruments available to ensure competence

Input regulation: academic qualifications, licensing, certification, practical skills training

Output regulation

Focuses on the quality of services that are actually delivered by a professional in a given context

Malpractice, regulatory standard setting, regulatory enforcement, practice audits, quality
assurance

Disciplinary processes

Misconduct – lack of integrity, unethical behavior

Passive competence – incompetence that comes to attention of agency

Active competence – proactive pursuit promoting competence
Legal Governance of Health Care – Gilmour – 2013


Problem with too much focus on input regulation

Most self-regulating professions placed too little on output; if they do, it’s mostly misconduct

Stressing performance standards, instead of process or design standards may not be effective
So what perspective best illuminates what to do to address incompetence?


26
Consumer welfare perspective; entails balancing public costs of administering regulatory program
with compliance costs by those being regulated; does self-regulation serve members or public?
Unregulated professional service would jeopardize welfare of consumers
A) Information imperfection

Consumer doesn’t know how to diagnose their own problem

Also, consumer doesn’t know how to judge if professional is doing job right
B) Externalities, involuntary third party effect (Shulman v College)


Example, bad engineer + bad property owner = dead visitors (third party bears cost)
Main point – just because someone can pass licensing exams doesn’t mean will continue to be competent
Suggestions

When college receives complaints, ask whether a fault in individual or more systemic?

Initiate peer review or practice audits – number of health Colleges moving in that direction


Even without underlying complaint, a peer come in every now and then, review a practice
(everything from recordkeeping to how cosmetic surgery is going)

Good form of trying to ensure active approach to keeping people competent
Would also urge that the colleges work more on formulating performance standards

If problematic practices – say in how sterilizing particular equipment after procedure – have
practice standards – have members learn and follow

Peer review (e.g. random) audits of a practice harder in law than health care with respect to
confidentiality

Distance learning – advances that make it easier for continuing education (or quasi)

Some mandatory continuing education credits that must be filled (law, some health care specialties)

Mandatory reporting of sexual abuse (HPPC S.85.1); info publicly available on register (HPPC S.23)
SYSTEMIC CAUSES OF HARM: CRIMINAL SANCTIONS AFTER SELF-REPORTING
R. v. Omstead OCJ 1999 – “conviction in this case might well be perceived as a deterrent
to self-reporting”
Legal Governance of Health Care – Gilmour – 2013
27

Health system failed – bottles of drug kept in same room, unlabeled; nurse grabbed wrong injection and
caused death; nurse self-reported and was charged with criminal negligence

Decision: lacks mens rea for recklessness; messenger is the one who gets singled out for remedial action;
this ignores the systemic problem
M AN D AT O R Y
R EP O R T I N G
S.80-85 HPPC

Quality Assurance S.80: to ensure ongoing competence; to protect members when they disclose to quality
assurance; prevails over Personal Information Protection Act

Mandatory reporting of sexual abuse S.85.1

Mandatory Reporting by facilities for incompetence, incapacity, sexual abuse S.85.2

Mandatory Reporting by employers, etc. of firing, revoking, suspension, restrictions S.85.5

Public can find out from registrar of members S.23
C HAPTER 3: C OMPLIMENTARY AND A LTERNATIVE
C ARE
Tension between public protection and allowing maximum consumer, patient choice
Legislation
Medicine Amendment Act, 2000, S.5.1 – member shall not be found guilty misconduct,
incompetence under S.51 or 52 respectively of HPPC solely on basis that member
practices a therapy that is non-traditional or that departs form prevailing practice unless
evidence the therapy poses a greater risk to health than traditional, prevailing practice

CPSO policy
i) Conventional diagnosis first; tell patients about conventional treatment; with informed consent, CAM
ii) Ok to refer patient to CAM practitioners, provided that it won’t expose patients to harm
Krop v. CPSO (2002)

MD practices environmental medicine, concern that patients not giving truly informed consent

Does Brett II apply to this case in terms of role of a “responsible and professional body of opinion?” No

Ratio: DC clear that it was not putting the practice of environmental medicine on trial, but rather his
treatment of the six patient using these standards of practice

Reasoning: Krop argued that the committee could not find him guilty of prof misconduct if there was a
body of responsible treatment that supports his treatment, citing Brett II
Legal Governance of Health Care – Gilmour – 2013

28
Yet, Krop’s methods differed significantly from his own experts
Devgan v. CPSO (2005)

Patients terminally ill with cancer; doctor charges 30k to provide them with questionable treatment

Revocation of license was upheld

Credibility issues: Devgan promised patients they would be cured but D testified he did not

Doctor has duty to ensure that patients fully understood risks and benefits
o
He knew patients were terminally ill; took their $; patients were vulnerable
o
Conflict of interest because he sold products to patients for profit

Notes: confirmed the Wilson decision on penalty: reviewing court should only interfere if error in principle
about penalty; court says no error in principle

S.14 of the HPPC – continuing jurisdiction: “a person whose certificate of registration is revoked or expires
or who resigns as a member continues to be subject to the jurisdiction of the College for professional
misconduct or incompetence referable to the time when was member and may be investigated under
S.75”
“Doctor fleeced Mennonites” P. Small (2007)

Devgan kept practicing even though license was revoked; Criminal charges and then convicted of fraud

S.14 of HPPC – college has jurisdiction when license is revoked; but “when they were a member”
By-law College of Physicians and Surgeons of Saskatchewan

Controlling Chelation Therapy by physicians, to remove heavy metals from body

It was potentially damaging to patients because it’s invasive

Interesting by-law – college doesn’t endorse wider use chelation but recognizes public demand safe
access

So there are regulations: has to be recognized by external body, American Board of Chelation Therapy;
how chelation has to be provided; consent
C HAPTER 4: M ALPRACTICE – N EGLIGENCE , B ATTERY
A. N EGLIGENCE

Burden of proof on plaintiff to establish that D owed: Duty of care; Standard of care, and Defendant’s
breach; Causation, breach of standard caused injury; Injury to Plaintiff; Damages not too remote; Defenses
DUTY OF CARE
29
Legal Governance of Health Care – Gilmour – 2013

ANNS TEST – INITIAL QUESTION
Does the relationship fall in a recognized category of prima facie duty of care?

Doctor-patient is a recognized category of duty of care; if not, continue
Anns Test – Step 1

Must establish harm was reasonably foreseeable to D + relation of sufficient proximity between P and D

Proximity describes a relationship between a plaintiff and a defendant that is sufficiently close and direct
to render it fair and reasonable to require that the defendant, in the conduct of its affairs, be mindful of
the plaintiff’s legitimate interests: see Cooper v. Hobart, para 32-36
Anns Test – Step 2 – if prima facie duty of care, are there policy reasons to negate or
limit?
STANDARD OF CARE
C R I T S V . S Y LV ES T E R – S T AN DA R D
O F C A R E T E ST – A P P LI ES T O A LL
H EA LT H P R A CT I T I O N ER S UN D ER GO V ER N E D UN D ER RHPA
1.
Degree of care and skill reasonably expected

2.
Of normal, prudent practitioner, same experience, standing; see also Lapointe; profession-specific
If person holds himself out as a specialist, then higher degree of skill is required
L AP O I N T E V . H O P I T A L L E G AR D EU R (SCC) –
LI A BI LI T Y ?
W H AT I S P RO F ES SI O N A L
1.
When measuring D against the prudent, diligent doctor, cannot be “perfect vision afforded by hindsight”
2.
Should not be applied to mere errors of judgment

Must be based in professional fault; choices in treatment may vary

No liability for negligence for deficient treatment if the diagnosis and treatment recognized by
medical science, even if there are competing theories
3.
Standards applied to judge treatment are those prevalent at time of occurrence

Causation is established when the plaintiff proves on a balance of probabilities, that the defendant caused
or contributed to the injury (Cotrelle, para 24)

Proving causation is one of most difficult areas in medical malpractice

Can be difficult to sort out what harm results from
B. C AUSATION

Deficient treatment; what might be consequence of illness, condition; a side effect (potentially an
unanticipated one) even though treatment perfectly carried out
BUT FOR TEST
Causation “injury would not have occurred but for the negligence of the defendant”
(balance of probabilities)
Legal Governance of Health Care – Gilmour – 2013
30
1.
If disc herniation would have occurred anyway, without injuries sustained in accident, problem (Cottrelle)
2.
If accidents alone could have been a sufficient cause, and pre-existing back condition alone could have
been a sufficient cause, then unclear which was cause-in-fact; must determine, on BOP, whether D’s
negligence materially contributed to injury (Athey, Cottrelle, para 34 citing Athey)
SNELL-SPECIFIC SITUATIONS SLIGHTLY RELAXING “BUT FOR” TEST
Sopinka in Snell doesn’t tell us which of the following factors we need, or what
combination of them p.7

D was in better position to observe what occurred

There are multiple possible causes

By continuing the operation which has been found to constitute negligence, he made it
impossible for the respondent or anyone else to detect the bleeding which is alleged to have
caused the injury

The legal burden remains with plaintiff, but in absence of contrary evidence adduced by D, an
inference of causation may be drawn though scientific proof of causation not been adduced p.6
Cottrelle distinguished from Snell para 33

No uncertainty over why Darlene Cottrelle suffered the amputation of her leg

Here, the issue is not whether the appellant created a situation that might have caused the respondent’s
loss

Instead, the issue is whether the appellant could have prevented the loss of the respondent’s leg in any
event
Snell v Farrell [1990] SCR

P had cataracts operation and bled during surgery

Suffered optic nerve atrophy, blindness perhaps due to bleeding or natural occurrence

D knew she had a bleeding in her eye (retrobulbar); D was “asking for trouble” by operating; Surgery
(opening cornea) allowed for bleeding to flow more freely; Blood loss caused blindness

Traditional but-for test applies to most medical malpractice cases

P.5 in many malpractice cases, the facts lie particularly within the knowledge of the defendant; very little
affirmative evidence will justify drawing inference of causation in the absence of evidence to the contrary

Decision hasn’t shifted the burden of proof, but he has lowered the hurdle that the plaintiff has to meet
M A T E R I A L C O N T R I B U T I O N (M U L T I P L E C A U S E S ) I N S T E A D O F “ B U T F O R ”
Material contribution to risk test removes requirement of “but for”, substitutes proof
of material contribution to risk, para 14, Clements v Clements (SCC 2012)

History: court has never actually applied material contribution to risk test, Cook analyzed on reverse onus;
Snell, Athey, Walker Estate and Resurfice resolved on robust, common sense application of “but for” test
Legal Governance of Health Care – Gilmour – 2013

31
When to use test – Resurfice Corp v Hanke
1.
When it is impossible for the plaintiff to prove that the defendant caused his injury using “but-for” test
because of factors outside his control, such as current limits on scientific knowledge
o
2.
Cook v Lewis situation, and Walker
And the defendant clearly breached a duty of care owed to the plaintiff, thus exposing him to an
unreasonable risk of injury, and this type of injury befell the plaintiff
Impossible defined, para 39, Clements
1.
Typically, there are a number of tortfeasors
2.
All are at fault, and one or more has in fact caused the plaintiff’s injury
3.
The plaintiff would not have been injured “but for” their negligence, viewed globally
4.
However, because each can point the finger at the other, it is impossible for the plaintiff to show on a
balance of probabilities that any one of them in fact caused her injury
5.
Material contribution does not apply in Clements because only one tortfeasor
What is material contribution to risk? – Cotrelle para 20, citing Athey v Leonati
1.
P must prove on BOP; causation test must not be applied too rigidly and no need for scientific precision
2.
It is sufficient if the defendant’s negligence was a cause of the harm
3.
P must be placed in the position he would have been in absent D’s negligence (“original position”)
4.
If there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff
in the future, regardless of negligence, then this can be taken into account in reducing the overall award

C A U S A T I O N O F “L O S S O F C H A N C E ” D A M A G E S
A type of damage that results from the loss of an opportunity to realize a benefit or to avoid an injury

Courts do not award this damage because it is uncertain and hypothetical (Laferriere, Cottrelle)
In Loss of Chance scenarios P can recover damages if

Can establish that, if P had been informed earlier of illness, that it would have made difference to length of
life, likelihood of cure (De La Giroday, Cottrelle)

Not sufficient to prove that adequate diagnosis, treatment would have afforded a chance of avoiding
unfavorable outcome unless that chance surpasses threshold “more likely than not”, para 25 Cottrelle
L AF E R R I E R E
V
L AW SO N [1991] (SCC)

D didn’t tell P had breast cancer until symptoms got worse; finally gets recommended treatment, dies

P’s claim fails “but for”; expert evidence saying this was aggressive form of cancer, and even if treated
properly, death anyway

Can P recover damages for what is a loss of chance, even though loss of chance is less than 50%? No
Legal Governance of Health Care – Gilmour – 2013
D E L A G I R O D AY
V
32
B RO UG H (1997) BCCA

Doctor failed to diagnose flesh-eating disease, extremely rare and unknown to many physicians

No loss of chance recovery in CL, unless proof of causation is shown on balance of probabilities
C O T T R EL L E V . G ER R AR D ONCA [2003] – AF F I RM S L A F E RRI E RE , D E
L A G I R O D AY .; LO S S O F C HAN C E MU ST B E P R O V E D O N A BOP

P had to amputate limb (damage); P had diabetes for 30 years; April, developed sore between toes; July,
gangrene, amputation; upon amputation, found that P had severely blocked arteries (pre-existing
condition)

Issue: Did D’s negligence cause leg to be amputated? No, P loses, trial decision overturned

Fails but for, with more aggressive form of treatment, leg likely could not have been saved anyway para 16
C. D ETERMINING S T ANDARD
OF
C ARE
Must use expert evidence in determining standard of care in medical malpractice cases
Ter Neuzen v Korn (SCC) [1995]
1. Where Standard of Practice the SOC is in accordance with the conduct of a prudent and diligent doctor

If specialist, behavior must be assessed in light of conduct of other specialists, who possess
reasonable level of knowledge, competence, skill expected of professionals in Canada, in that
field
2. At time of breach: the conduct of physicians must be judged in the light of the knowledge that ought to
have been reasonably possessed at the time of the alleged act of negligence
3. Unless standard of practice of profession in general is obviously risky, then no expert needed

If a standard practice fails to adopt obvious and reasonable precautions, ordinary common sense
 Expert evidence: Standards of practice by college; Academic literature; Guidelines by specialist body

Patient received AI from MD; HIV was just becoming known at time; Semen used by MD was HIV positive;
Plaintiff developed AIDS and sued MD; Patient claimed MD was negligent: 1) MD had failed in being aware
of risk of HIV infection; 2) More general breach of DOC with regard to STDs
L AW E ST AT E V . S I MI C E BCSC

Ratio: “If it comes to a choice between a physician’s responsibility to his or her individual patient and his
or her responsibility to the medicare system overall, the former must take precedence” (limited resources)
D. S TATUTORY R EGULATORS ’ L IABILITY – D UTY OF
C ARE
Regulators protect public interest in good faith, don’t owe private duty of care to
individuals; these statutory schemes have been held by courts to foreclose finding
regulator owes private law DOC (Taylor, para 78)
33
Legal Governance of Health Care – Gilmour – 2013

Schemes that provide immunity to the regulator

Create remedies to injured parties other than tort remedies

Impose duties on regulator that conflict with a private law duty of care to an individual
However, immunity by statute and good faith does not protect bad faith which
includes

Gross or serious recklessness, no need for intentional fault
o
Fundamental breakdown of the orderly exercise of authority, to the point that absence of
good faith can be deduced and bad faith presumed, Edwards para. 39
o
Doesn’t apply to exercise of adjudicative functions (tribunal or discipline committee) para 40

Can go to judicial review instead of finding bad faith
E DW AR DS V . L AW S O CI ET Y
O F U P P ER C AN A DA 2001 SCC
S T A T U T OR Y R E G U L A T O R S D O N OT O W E DOC T O PR I VA T E
I ND I VI D U A L S
–

Appellants claim that once Law Society knew the account was being used improperly, the “Law
Society had a duty to ensure that Mills operated his trust account according to regulation”

Statutory regulator has the protection of the public interest as its goal, not private individuals

No DOC to member of public (not solicitor’s client) who deposits money into solicitors account

Apply Anns Test
1.
2.
Does LSUC owe a duty of care to persons who deposit money into a solicitor’s trust account
in respect of losses resulting from misuse of the account?
a.
LSUC statute says it protects public as a whole
b.
Safeguards for individuals are provided by Legislature (public insurance)
c.
Statute provides immunity to regulators for good faith and bona fide exercise of
their powers in pursuance of their responsibilities under the statute
If there is such a duty, are there grounds rooted in policy which would limit or negate the
finding of a duty? No need to go through this
F I N N E Y V . B A RR E A U
DU
O N P A R T O F B AR RE A U
Q U EB E C [SCC 2004] –
BA D FAI T H FO U N D

Barreau found B, a lawyer, guilty at least three times, for purpose of disciplining him

Ratio: this case narrows the meaning of “good faith” statutory immunity provision; statutory immunity
provision does not protect “bad faith”, that includes recklessness or extreme carelessness

Bad faith includes recklessness, which implies fundamental breakdown of authority, to the point that
absence of good faith can be deduced and bad faith presumed
34
Legal Governance of Health Care – Gilmour – 2013

Immunity: is meant to allow regulators latitude about how it performs its duties, but it is not meant to
excuse what the court has termed recklessness or gross, serious carelessness
E. G O V E R N M E N T L I A B I L I T Y F O R N E G L I G E N C E
THESE CASES SHOW THAT COURTS LOATHE TO FIND THAT GOVERNMENT HAS A
PRIVATE DUTY OF CARE TOWARDS INDIVIDUALS OVER THE DUTY OF PUB LIC
INTEREST; MOST OF THESE CASES DO NOT PROCEED PAST PRELIMINARY FINDING
OF CAUSE OF ACTION

GOVERNMENT’S DUTY OF CARE
DOC should apply to a public authority unless there is a valid basis for its exclusion (Just v BC)
1.
Is there a cause of action (aka, is there a private duty of care)? Find out by using chart
2.
Must be clear, obvious that no cause of action, no reasonable prospect of success (Mitchell, Taylor)
3.
a.
Must be clear and obvious that there is no private duty of care if assume facts alleged are true
b.
If the question gives rise to genuine legal or factual uncertainties, it cannot be answered at
this stage and the answer must await a trial and a complete record (Taylor, para 22)
If there is a cause of action, statutory duty or power? Statutory duty is something you are required
to do; Power is discretionary

STATUTORY DUTY – ENABLING LEGISLATION REQUIRES PUBLIC AUTHORITY TO
DO SOMETHING
Cannot be found liable in negligence for doing what it was required to do in statute (valid basis)

Can be found liable if it fails to do something required in the statute

Can be liable if it performed the duty negligently – apply standard negligence analysis (Taylor)
P R O XI MI T Y
1.
A N A L YSI S U N D ER ST AT UT O R Y D UT Y
Look at the statute – does it include a private law duty of care?
a.
If statute says no, there is absolutely no duty of care (para 77)
– T A YL O R ( P A RA 76)
Legal Governance of Health Care – Gilmour – 2013
35
 Look for immunity to regulator, create remedies other than tort remedies, or impose
duties on the regulator that conflict with a private law duty of care to an individual (77)
b.
2.
If statute does not foreclose private duty of care, then you must examine part 2
Terms of the legislation describing powers, duties may to shape relationship between regulator, regulated
a.
Look for whether a sufficiently “close and direct" relationship exists to justify the imposition of a
prima facie duty of care (Wentworth v Hill)
 Look for the facts – do they demonstrate a relationship that is distinct and more direct
than relationship between the regulator, that part of public affected by his work (para
80)
1.
Easier to find proximity when government action directly impacted P
2.
As opposed to indirect harm through a third party
 Example the regulator become involved with the manufacturers in advising on the
growing and advertising of various tobacco products (Imperial Tobacco)
b.
Are public duties laid out in statute consistent with a private duty of care?
 Private law DOC to individual suspect based on interaction between suspect, police
promoted broader public interest in effective, fair police investigation (Wentworth)
T A Y LO R V . C AN A DA (2011) ONCA – U S E FU L I N P RO XI MI T Y
AN AL Y SI S , P O T EN T I A L I N FI N DI N G P RI V AT E DOC O N GO V E RN M EN T

P suing government for allowing importation of faulty dental implants; negligent misrepresentation

Food and Drugs Act and the regulations made under that Act referable to medical devices, relevant
statute

Alleging negligence under statutory duty – exercise of its responsibilities under the Food and Drugs Act


Device didn’t meet regulatory standard; government failed to adequately monitor, regulate sale
of implants; failed to warn doctors, consumers; Health Canada mistakenly advertised standards
met
Alleging Health Canada owed DOC to protect her, other class members from unsafe medical devices and

That it negligently failed to perform that duty in relation to the Vitek TMJ implants

Is there a private duty of care between government and P? Is there a cause of action?

Court mentions factors towards finding duty of care para 118


An identifiable group of consumers at risk; decision not to warn; group relied on representation
and legislative mandate to regulate; government made misrepresentations
STATUTORY POWER – ENABLING LEGISLATION GIVES PUBLIC AUTHORITY
DISCRETION
More likely that the government will be acting pursuant to a statutory power
Legal Governance of Health Care – Gilmour – 2013
o
36
Was it making a policy decision versus operational?
 Policy: government cannot be found liable in negligence for policy even if some people
are harmed unless it was not a bona fide, good faith exercise of discretion (valid basis)


Reason: voters should judge policy at the ballot box instead
 DOC should apply to government unless valid basis for its exclusion (Just v BC)
Operational: implementing a policy
J US T
V
BC –
F AC T O R S I N D ET ER MI N I N G I F A D E CI SI O N I S A P U R E
P O LI C Y D E CI SI O N
→ If the decision is made by a person of high authority (the higher the authority, the
more likely a policy decision)
→ If the decision is about budgetary allotments (indicates policy)
→ If the decision was made in good faith (then less open to challenge)
1.
WAYS TO NAB THE GOVERNMENT FOR NEGLIGENCE
For negligently implementing a policy (discretion on how to act on policy)

2.
Not making a bona fide exercise of statutory discretion

3.
Statutory power  Policy decision, not operational  Not bona fide exercise  Duty of Care 
Standard of Care  Breach  Causation  Injury
Negligently performed statutory duty

4.
Statutory power  Operational decision, not policy  Duty of Care  Standard of Care 
Breach  Causation  Injury
Statutory duty  Court determines common law cause of action exists  Standard of Care 
Breach  Causation  Injury  Negligently performed statutory duty
Failed to fulfill statutory duty

Statutory duty  Court determines common law cause of action exists  Failed to fulfill
NO
LI ABI LI T Y
5.
For doing what it’s required to do under statute (valid basis for exclusion of duty of care)
6.
For a bona fide, good faith exercise discretion of in making policy (valid basis for exclusion of duty of care)
7.
For making budgetary decisions (Mitchell)
M I T C H EL L E S T A T E [2004] O N T A RI O S U P E RI O R C O URT O F J U ST I C E –
N O C A U S E O F A C T I O N ; P OL I C Y D EC I S I ONS , D U T Y OW ED T O PU B L I C A S
WH OL E , R A T H ER T H A N I ND I VI D U A L ; N OT E N F O R C EA BL E T H R O U G H
PR I VA T E L A W S U I T , C A N ’ T M EET FI R S T S T A G E O F A N NS T ES T

Parents bring lawsuit because daughter died in hospital; not enough ER docs to attend to her care; sued
minister of health and premier of province for negligence; Plaintiffs claim insufficient health care funding

Government is doing a prelim that complainant failed to disclose a cause of action
Legal Governance of Health Care – Gilmour – 2013


Test: clear and obvious that there is no cause of action

Whether a private law duty of care exists between government and plaintiffs, no
37
Anns Test: 1. Sufficient proximity in relationship? 2. Policy analysis for no duty of care? Cooper v Hobart
1.
No close and direct relationship between minister and government and the baby who died

Statutory power, policy see chart
i. Budget is a policy, not operational decision by government
ii. It was part of Minister’s wide bona fide exercise of discretion to fund hospitals
2.
Have to balance competing interests, owed to the public as a whole, not owed to individuals
ABARQUEZ
V O N T A RI O (2009) – G OV E R NM E N T U S U A L L Y D O ES NOT
O W E PR I VA T E D U T Y O F C A R E OV ER D U T Y T O PU BL I C

Nurses, families sued for damages alleging negligence during SARS; case is at prelim stage, like Mitchell

Nurses argue ON direct intervention in workplace gave rise to relationship of proximity

The law suit was structured to move government out of its general duty to the public to a specific duty
through the mismanagement of the SARS crisis; RNs relied on intervention in hospitals

RNs lose; even though they were in the “eye of SARS” and at greater risk – nature of profession that they
work in, rather than a risk that the government created when it put into place the directives

The very nature of the duty owed by the government to the public at large is ordinarily incompatible with
a private duty to an individual because of the potential for conflict
C HAPTER 5: I NFORMED C ONSENT – N EGLIGENCE –
C AUSATION
Lack of consent = battery; also see what is informed consent in S.11(2) of Health Care
Consent Act
1.
PROVE LACK OF INFORMED CONSENT CAUSED NEGLIGENCE – MODIFIED
OBJECTIVE TEST
What would a reasonable person in the plaintiff’s position have done if properly informed?
2.
Establish on BOP that if given proper information, would have made a difference
3.
Purely subjective fears that are not related to the material risk should not apply to the test
A R N DT V . S MI T H [1997] SCC – M O DI FI E D O BJ E CT I V E T EST

Based on P’s desire for children and suspicion of mainstream medicine, combined with fact that they
would have informed her that very small risk, information would not have made a difference to her
decision
o
Pregnant woman contracted chicken pox, asked MD if there were risks to fetus
38
Legal Governance of Health Care – Gilmour – 2013
o
MD told her of some risks, but not the small possibility of brain damage and disability to child
o
Child born with serious disabilities; Mother sued
o
MD negligent in failing to warn her of the risks of exposure to chicken pox
o
If lack of informed consent is causal, this means it made a difference to the patient’s decision
o
In informed consent cases, the test is a modified objective test (Reibl v Hughes)
o
You have to tell them material risks but not to answer idiosyncratic fears
R AT I O N A L E
FO R A MO D I FI ED O B JE C T I V E T EST :
C A U L FI E L D
A RT I C L E

Rationale in Ribel was to avoid 20/20 hindsight: “primary reason for reluctance to adopt more subjective
test of causation was fear that it would place D at mercy of the plaintiff’s “hindsight and bitterness”

Either the test is dictating what the particular patient (and society as a whole) should consider to be
reasonable fears and concerns (incredibly paternalistic stance), or previous concern

I N F O R M E D C O N S E N T R E Q UI R E M E N T S T O C O N T I N U E T R E A T M E N T
What would a reasonable patient need to know in order to consent to continue treatment?

Significant change in risks; Change in need to continue procedure; Material change in
circumstances that would alter patients assessment of benefits, risks, burdens
C I A R LA R I EL LO V . S CH A C HT ER 1993 SCC

Suspected of having condition where high risk of death; risks were explained, including reaction to dye; in
the midst of second angiogram, she wanted it to stop because she was hyperventilating; they stopped

Patient said yes to another angiogram, but suffered reaction to dye and became paraplegic

Test: informed consent – what would reasonable patient want to know to consent to continue

Was consent withdrawn? If yes, must stop procedure

But when it stopped, must give information again if there are
o

Significant change in risks; change in need to continue procedure; material change in
circumstances that would alter patients assessment of benefits, risks, burdens
Here, there was no need to repeat the details of the procedure or its attendant risks because there was no
significant change in circumstances since the procedure had been stopped
G. R O B E R T SO N , “I N FO R M ED C O N S EN T 20 Y E A RS L AT ER ” (2003)


20 years ago (Reibl)
o
Shift towards modified test has made it even more difficult for Ps to win informed consent cases
o
Plaintiffs lose because they fail to establish the causation requirement in informed consent cases
Today: remains true but
o
Duty of disclosure increasingly onerous, regarding both risks & alternative treatments
39
Legal Governance of Health Care – Gilmour – 2013
o

Courts still routinely characterize statistically remote risk as material, especially if they
involve death or serious injury

It is now well established that the duty is to disclose all material information (not just
risks), including any alternative treatment which may be available
Subjective analysis has crept in and plaintiffs are still losing

o
This refutes Reibl that if a court were to apply a subjective approach to causation it
would have to accept the plaintiff’s own evidence (driven by the plaintiff’s “hindsight”)
Court should become more sophisticated in terms of understanding what lead people to take
risks
INFORMED CONSENT OUTSIDE CANADA – SHOULD CANADA FOLLOW?
Courts stressed patient’s right to be informed over the “but for” test for patient
winning negligence case
UK (C H ES T ER
V
A F S HA R )
AND
A U S . (C H AP P EL
V
H A RT )

Surgeons failed to inform patients of small 1% random risks (paralysis, severely damaged vocal)

Patients said that if they had known about risks, they would not have had surgery right at that time
o
UK would have sought other opinions; Aus. would have found best surgeon for job

In both situations, the patients would have had to get surgery eventually; doctors were both competent

Full compensation for injuries; negligence in not fully informing patients of risks, and risks caused injuries

P’s right to information and right to make a fully informed, autonomous choice
HEALTH CARE CONSENT ACT – CONSENT FOR CAPABLE INDIVIDUAL
Codifies some parts of CL relating to consent, informed consent
1.
Is treatment covered under Act? S.2(1); if not, HCCA does not apply, go to CL
2.
Was it an emergency treatment? S.25
3.
Was it informed consent? S.11
4.
Presumption of capacity S.4(2); unless S.4(3) health practitioner thinks patient is not capable under S.4(1)
Capacity requirements S.4(1)

Must understand and appreciate consequences of decision for consenting to or refusing treatment
Is the treatment covered under the Act?

See definition of “treatment” under S.2(1); Includes cosmetic; Includes course of treatment, plan of
treatment, community treatment plan; Also lists exclusions (e.g. communicating an assessment or
diagnosis, assessment or examination to determine general nature of person’s condition)
NO
T R E AT M EN T W I T HO UT CO N S E N T
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
40
S.10(1) – health practitioner who proposes treatment for person shall not administer treatment, shall take
reasonable steps to ensure that it not administered, unless, a capable person consents or SDM consents
E XC EP T I O N
FO R E M ER G EN CY T R E AT M EN T

S.25(1) – for purpose of this section and S.27, emergency if person for whom treatment proposed apparently
experiencing severe suffering or at risk, if treatment not administered promptly, of serious bodily harm
Emergency Treatment without Consent – Incapable Person and Capable Person

THE
E L EM E N T S
O F CO N SE N T
S.11(1)
F OL L O W I N G A R E T H E E L EM E NT S R E QU I R E D FO R C O NS E N T T O T R E A T M E N T
1. The consent must relate to the treatment; 2. Must be informed; 3. Must be given voluntarily; 4.
Must not be obtained through misrepresentation or fraud
Informed consent requirements S.11(2)

Like in Ardnt v Smith plus other factors
When you consent this is what you consent to S.12
Withdrawing consent S.14 – consent may be withdrawn any time

S.26 – unless contrary to prior capable wishes

S.29 – good faith immunity if consent seems valid
“F ID U C I AR Y L A W & F O R -P R OF IT
C AR E ” L IT TM A N
AN D
N OT -F O R -P R OF IT H E AL TH

Dr. and Patient relation fiduciary (McInerney v MacDonald)

SCC has recognized fiduciary nature of relationship with respect to patient’s records; but the loyalty and duty
owed to patient is too open-ended to give guidance with respect to every aspect of doctor-patient relationship

o
Case law unclear about the exact scope of duty
o
We do know from Ardnt that where harm is failure to get consent, action will sound in negligence
Could a health care institution owe a fiduciary duty to patients? Or to class of patients?
C HAPTER 6: E XPERIMENTATION AND I NNOVATIVE
T HERAPY : L IABILITY
This is the standard of disclosure for experimental procedures (full, frank disclosure of
everything – Halushka)
H AL U SH K A V . U. S A SK A T C H EW AN (1965) S A S K CA

Student to get $50 in trial of anesthetic, consent form, standard for disclosure at this time was not what
the patient would want to know, but what the reasonable professional would think patient should know

Ratio: those engaged in medical research owe great, or greater duty to a patient than ordinary physician
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
41
Notes: how to meet the standard disclosure of risks, part of purpose of experiment to find out what risks
C R Y D E R MAN V . R I N G RO SE (1978) AB

MD developed own sterilization method using silver nitrate; not reliably effective; safety not established

Ratio: with experimental treatment (i.e. that which is not generally accepted), the common law requires a
high degree of care and disclosure to patient that the treatment is new and risky

Also failed to disclose conflict of interest, as he was the inventor of the product, stood to profit
Z I M M ER V . R I N G RO S E (1981) AB CA

P requested sterilization after second child born; MD did not tell her that this procedure was not generally
accepted in medical community; ended up pregnant

Ratio: distinction in the level of disclosure warranted between treatments that are “experimental” and
those which constitute “innovative therapy” (where therapeutic benefit is intended to accrue to recipient)

MD should still have told patient procedure was not generally accepted

Plaintiff loses on causation; Court finds she has tremendous confidence in doctor (went back to him for
tubal litigation surgery); disclosure would not have made different to her choice

Notes: Court concerned not to stifle beneficial innovative techniques
C O U G HLI N V . K UN T Z (1989) BCCA

Dr. decided to do neck operation because he believed patient had a degenerative disk disease – used his
own experimental technique, P didn’t have pain in his neck

Ratio: Experimental procedure + no full disclosure + causation = liability for negligence

Reasoning: treatment considered experimental, even though therapeutic benefit intended for patient;
expert witnesses of the view that the D should have undertaken other investigative techniques short of
surgery first

Why? “Not supported by clinical study”, just MD own experience; experts saw “obvious danger” in
procedure – he had come up with this procedure himself

Notes: consent would have meant telling patient about experimental nature of procedure; patient must
understand and appreciate; defendant cannot just rely on this form plaintiff signed
B R O CK V . H S U (2006)

Child with cancer given higher dosage of experimental drug; failure to indicate how much higher the risk

Reasoning: DOC analysis (Anns, Cooper), Courts go back to when there is a novel malpractice claim; is
there DOC owed (proximity), policy considerations to negate this duty of care? Foreseeability “may be
difficult” for a volunteer in MD’s position, but issue needs trial (para 43)
Health Care Consent Act

Note: S.6: “this Act does not affect the law relating to giving or refusing consent on another person’s
behalf to any of the following procedures: a procedure whose primary purpose is research”
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
42
So: when someone is giving consent for someone else who is no longer capable, applies only when the
procedure is not research
o
So back to the CL; think about what the common law would have to say about giving consent on
behalf of someone else to participate in some kind of procedure or study where the primary
purpose is research, not necessarily to benefit this individual
Tri-Council Policy Statement (CIHR, SSHRC, NSERC)

Put together by the chief granting agencies that fund research; if an institution is going to receive funds
from granting agencies, not only funded research but all research at institution must comply with
statement

Policy statement has provisions regarding consent, informed consent, substitute consent, use of placebos

Falls under the category of soft law (Glass article – how is it that soft law comes to have legal effect)
Clinical Trials

Clinical equipoise must exist at the start of the trial


Means a genuine uncertainty on the part of the expert medical community about the
comparative therapeutic merits of each arm of a clinical trial
Stages of Clinical Trials

Phase I – attempt to determine dose-related toxicity of new pharmacological product

Safe dosage-range usually given to healthy subjects

May also involve patients in studies with interventions that are known to be toxic,
e.g. chemotherapy for cancer patients

Phase II – primarily examine the short-term toxicities of and to a lesser extent, the efficacy of
new drugs; they are conducted in populations with specific diseases

Phase III – examine pharmacological efficacy and, short-term toxicities of drugs

Phase III and IV clinical trials are designed to increase the survival or quality of life of subjects
suffering from a specific disease or condition

Phase IV - aka post-marketing surveillance studies primarily examine the long-term efficacy
and toxicity of already marketed drugs
Placebo-Controlled Studies

Consistent with clinical equipoise, a placebo may be used as the control treatment in a clinical trial in the following circumstances: a)
There is no standard treatment; b) Standard therapy has been shown to be no better than placebo; c) Evidence has arisen creating
substantial doubt regarding the net therapeutic advantage of standard therapy; d) Effective treatment is not available to patients due
to cost constraints or short supply; e) In a population of patients who are refractory to standard treatment and for whom no
standard second-line treatment exists; f) Testing add-on treatment to standard therapy when all subjects in the trial receive all
treatments that would normally be prescribed; or; g) Patients provided informed refusal of standard therapy for a minor condition
Legal Governance of Health Care – Gilmour – 2013
43
for which patients commonly refuse, withholding such therapy will not lead to undue suffering or the possibility of irreversible harm
of any magnitude
C HAPTER 7: T ORT T HEORY : C RITICAL P ERSPECTIVES
AND A LTERNATIVES
R O T H W E L L V . R A E S 1 988 – O N HC D I D N ’ T A W A R D D A M A G E S T O P B U T S T A T E D
LITIGATION INAPPROPRIATE FOR CLAIM OF THIS NATURE

Plaintiff infant received vaccination against whooping cough; developmental disabilities

States sympathy for P – that there is nothing court can do when no fault found

In UK, statutory provision, compensate neurological damage, close temporally with vaccine administration

US: statutory scheme for compensation for vaccine related injuries

Quebec: statutory scheme for compensation for vaccine related injuries

PICARD & ROBERTSON “LEGAL LIABILITY OF DOCTORS & HOSPITALS IN CANADA”
Article highlights how infrequent malpractice claims are in Canada, how hard it is for patients to win them

Reduction in frequency of malpractice claims against MDs since 1996 (reversing earlier trend)

Canadian Medical Protective Association membership fees: note also significant provincial government
subsidy for members’ CMPA fees; CMPA acts as an insurer for 96% of doctors in Canada


CRITIQUE OF CANADIAN MEDICAL PROTECTIVE ASSOCIATION
Provide legal defense for doctors; Doctors pay some, but in 2008 taxpayers paid 83%; Fight hard against P,
wear-down tactics; CMPA spends a lot of money to protect doctor, even if cost to litigate more than award
CMP A 20 10 A N N U A L R E P O R T
The point: most lawsuits against MDs that go to trial continue to be unsuccessful

When MDs sued for malpractice with negative finding, has to be reported to registrar, so incentive to
settle

Another incentive to settle is that expert opinions expensive; Ps may not have resources; causation
problem

C O M M I S S I O N O F I N Q U I R Y I N T O T H E B L O O D S Y S T E M I N C A N A D A (K R E V E R , 1 997 )
Offers alternative system to tort litigation for tainted blood cases

Thesis: no-fault system can provide some kind of compensation for injury without “hoops and hurdles” of
proving causation in the tort system – we need to think of the patient first

No Fault Insurance in car insurance

Krever proposed a statutory no-fault system for tainted blood victims without a tort option
Legal Governance of Health Care – Gilmour – 2013
o

44
Has the danger of creating a two-tier justice system
No fault only system is the only way to shift the focus from finding fault to compensating the injured party
o
Won’t compromise safety; deter carelessness with regulation, not haphazard civil litigation cases
Criticisms of tort system

The burden of proving causation is so high

Sometimes a procedure is medically necessary, not fault of medical providers, but something goes wrong
One potential problem with no fault

US – admin compensation system supposed to be faster, easier, more predictable – been really challenged
by a lot of claims of parents saying children’s autism cause by vaccine

Much issues in admin – then seeking judicial review – much like lawsuit, with drawbacks (cost, length)

TREBILCOCK, FUTURE OF TORT LAW – HOW WELL DOES TORT SYSTEM ACHI EVE
GOALS?
Economic system of deterrent – cost incentive to work to minimize accidents, also reputational incentive

Communitarian perspective

Most accidents are inevitable due to having an interdependent, industrialized society

Argue for distributive justice – accident costs should be collectively, not individually, borne

Corrective justice – tortfeasor, morally culpable, has obligation to put victim back in pre-interaction status

First disagreement is over proper goals of tort law – compensation, deterrence, corrective justice?

Second disagreement is over how well the system achieves these goals

Critiques of no-fault system

o
Pays too little attention to safety incentives; will be either exorbitantly expensive (so that
everyone can recover), or under-exclusive; can’t separate compensation, deterrence
o
Risky drivers in Quebec still get to drive (but professor notes that in other provinces, numbers
show high premiums keep them off road)
o
Not properly compensating people who have been catastrophically injured (like in NZ)
o
Hazard of no-fault system: need to keep it responsive (adjusted to needs)
Should we keep the tort system?
o

Suggestion: First-party insurance payments, buy more insurance for when you have a risky
medical procedure (as you do when you buy travel insurance)
N A T I O N A L S T E E R I N G C O M M I T T E E O N P A T I E N T S A F E T Y (200 0)
Prompted by 1999 US Report: “To Err is Human”; high number of serious injuries; the number of deaths
resulting from medical error in US is equivalent to one jumbo jet a day crashing
Legal Governance of Health Care – Gilmour – 2013

How medical error happens: often overlooks the role of systemic factors

Proposals: establishment of a patient safety institute

Shard end versus blunt end issue
o
Sharp end: practitioners interacting with patients and each other when delivering care
o
Blunt end: where we find administrators, regulators, policy makers, funders, tech suppliers

o
Sources of the demands, resources, constraints that form the working environment
Ability of practitioners working at the sharp end to avoid mistakes will be related directly or
indirectly to a host of factors at the blunt end

o

45
E.g. if human resources puts one nurse for large number of patients – blunt end
(staffing) affects sharp end (nurse’s) ability to care patients (Omstead)
Patient safety advocates argue “fault” and individual “blame & shame” are counter-productive,
blaming individual doesn’t improve safety because obfuscates blunt end (also, self-reporting
issue)
What changes, if any, needed to tort or regulatory environment to build “culture of safety”?
o
Report suggests that it is important to have peer review within the institution and more broadly
to find out what is going on and to brainstorm about how to fix it
o
Quality assurance process should be protected from disclosure

o
Want to minimize blame so people are comfortable reporting, then can take effective
action so this does not happen to anyone else
Looking at legal, regulatory: using civil regulation hold practitioner accountable, recognized
option
C HAPTER 8: S UBSTITUTE D ECISION -M AKING
A. S TATUTES – H EALTH C ARE C ONSENT A CT
HOW
1.
DO ES SU B ST I T UT E D E CI SI O N - MAK I N G W O RK ?
Does health care consent act apply S.6?

S.6 – if it’s about consent to research, sterilization or transplants, must use common law
C A P A CI T Y S.4
2.
Does the person have capacity S.4?

(ii) Able to understand relevant information and;
46
Legal Governance of Health Care – Gilmour – 2013

(ii) Appreciate reasonably foreseeable consequences of decision or lack of decision
3.
If yes capable, then S.10 (the person given consent) and S.11 (is this consent informed)
4.
Capacity can come and go, it’s fluid S.15, 16
S UB ST I T UT E D E CI SI O N M AK ER S . 20
5.
If no, incapable, then S.20: who is the substitute decision-maker? (list is in order of priority)

Guardian, rep determined by consent, power of attorney, spouse, child, parent, etc.

S.20(9) – has a very broad definition of partner

S.33 – patient can go board to skip priority order, i.e. apply to make a cousin SDM, not mom
6.
S.32 – incapable person can take capacity decision to Consent Board for review
7.
S.20(5) – if no SDM, it’s the Public Guardian and Trustee
HOW
8.
D E CI SI O N S S HO U L D B E MA D E
–
US E BE ST I N T E R ES T S
S.21
Determine wish of person if they expressed it while capable and after attaining 16 years old

Then you do according to that wish S.21(1) not a lot of case law here

9.
Expressing wish S.5 a person may, while capable, express wishes with respect to treatment,
admission to a care facility or a personal assistance service
 A wish can be expressed in any way S.5(2)
If no wish, then best interests of the person under S.21(2)

Professor on S.21: different factors might lead to different answers, people might weigh
differently, come up with different, but still reasonable, conclusions (A.M. v. Benes, 1999)
10. If doctor disagrees with SDM on S.21(2), can take it to consent and capacity board S.37
11. Consent capacity board S.70; if anyone disagrees with Consent and Capacity Board or has a
constitutional issue, can take it to judicial review
12. For mature minors, A.C. v. Manitoba [2009] SCC, best interest of the person concerned under S.21(2)
B. B EST I NTERESTS
OF THE
C HILD
Life-Preserving Treatment & Best Interests of the Child

Decisions must be made in best interests of child, not others, B(R) v CAS

Parental decisions may sometimes not be in the best interests of the child and that’s ok


But there are limits; when parents overstep limits, state can intervene in accordance to principles
of fundamental justice (parens patriae); Child Welfare act does not infringe S.7 rights of parents
Note: it was easier for courts to decide state could do blood transfusion: low-risk, non-invasive with clear
life-saving benefits; answer might not be so clear when risky treatment, questionable benefits
B (R) V . C.A.S.
47
Legal Governance of Health Care – Gilmour – 2013

Jehovah’s Witness parents; Infant needed blood transfusions for surgery; parents would not consent to
blood transfusion; Children’s Aid Society notified, wanted to consent to order; parents appealed, asserted
that S.2 religious rights entitled them to deny life-saving treatment to child

Issue: does child welfare legislation breach parents’ Charter rights? No

Majority (La forest) held: no breach, principles of fundamental justice complied with in Child Welfare Act

Concurring: “no initial constitutional infringement”

“The child’s right to life must not be so completely subsumed to the parental liberty to make
decisions regarding that child”
 When dealing with argument about freedom of religion – can rear child according to own beliefs (including
medical treatment) – but again, not absolute freedom, distinction between beliefs and practices, life on
line
S UP ER I N T EN DE N T O F F A MI L Y & C HI LD S ER V I C ES V . R.D. & S.D.,
(1983) – FO L LO W S B.R. G O A H EA D W I T H O P ER AT I O N

Boy contracted meningitis as a baby; blind, no control over bodily functions; parents initially consented to
operation, then changed minds; wanted son to die with dignity; trial judge would have allowed this choice

Decision: authorizes child welfare authorities to consent to operation to remove blockage from shunt

Parens patriae jurisdiction takes precedence

Parents didn’t really know child suffering, child didn’t live with them, didn’t speak to caregivers

Child was described as happy by those who worked with him

If child did not have surgery, doesn’t mean he would die, could be in a lot of pain

Ratio:1) make a decision in the child’s best interest (not a right to die decision); 2) Laws are
meant to preserve, protect, and maintain life; especially when life not intolerable; 3) Can’t judge
quality of disabled life: have to judge it within the context of the disabled person not of an able
person
S ASK M I N . S O CI A L S ER V I C ES V . P. (1990) (P RO V . C T .) –
C A SE
UP HO L DI N G P AR EN T S D E CI SI O N
 Parents decided not to seek liver transplant for infant son; child’s chances for survival were relatively good
– 70% survival for 1 year, 60% for 5 years, without transplant, experts agreed would die; decision upheld
by Court not many decisions uphold parental wishes); parents wanted child to return to live with them


3:1 experts thought parent’s decision was acceptable
o
Liver transplant was new (5-7 years old in Canada) and would have been risky for young child
o
After transplant, could have lots of serious side effects, risk of cancer
“The decision reached by the parents cannot be characterized as being overwhelmingly poor, inherently
inept, ill-considered, lacking judgment, or simply unreasonable and unacceptable to society”
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
48
Court accepts not purely medical question – emotional, psychological, for child, parents; government
erred, only looked at medical element, parents looked at whole picture and had medical support in doing
that
A. (C HI L DR EN ), (2000)(UK)
 Conjoined twins, stronger girl’s heart sustaining both lives, couldn’t do so for long; doctors recommended
operation to separate – this meant weaker twin would die, other twin would have a reasonable prospect
of living; no surgery, both twins would die after 6 months; parents religious – wouldn’t condemn one child
to death, so doctors brought in welfare authorities; doctors sought to get consent from court to become
SDM

How to determine “best interest of child” when assisting one will inevitably end the life of the other child?

Decision: Best interest to proceed with surgery
o
It is in the best interest of the stronger twin to have a chance at the long life; inevitable weaker
twin will die very soon even if operation is not performed, so Court authorizes operation to go
ahead
STANDARD OF REVIEW FO R CONSENT CAPACITY BOARD
A.M. V . B EN E S , ONCA (1999) –
R EV I EW I N G AN SDM’ S DE CI SI O N
B EC A US E DO CT O R DI SA GR E E S W I T H SDM, N O P RI O R W I S H ES

Consent capacity board should use standard of correctness when reviewing SDM decisions under S.37

Schizophrenic incapable; mother becomes SDM pursuant to S.20 of HCCA (must act in best interest S.21);
mother refuses to accept recommendation to give eletro-convulsive therapy, anti-psychotic medication;
MD applied to the Consent and Capacity Board under S.37 of the Act for a review of the decision

Ratio: the substitute decision-maker’s decision should be reviewed on a standard of correctness

First, SDM may not always be appointed by individual, family members aren’t always close, don’t always
necessarily know what treatment the incapable person would want

Second, values, beliefs, non-binding wishes not only elements of the best interest test – SDM is not a
medical expert, have to consider the likely effect of the proposed treatment as well

No procedural guidelines SDM has to follow, which would provide better assurance that an SDM correctly
applied test; hence lack of deference owed by Board to the SDM decision
S T AR SO N V . S W AY Z E , [2003] SCC –
T HI S C AS E A L SO I N V O LV ED
P AT I EN T DI SA G RE EI N G W I T H DO CT O R A BO U T I N C AP A CI T Y

Standard of review of decision of Consent & Capacity Board under HCCA:
o
Questions of fact (or mixed fact & law) = reasonableness; Questions of law = correctness
C. C ONSENT
OF
M ATURE M INORS
Some minors are (regardless of age – no age requirement in S.4 capable of consent)

Able to understand the information that is relevant to making a decision about the treatment
49
Legal Governance of Health Care – Gilmour – 2013

Able to appreciate the reasonably foreseeable consequences of a decision or lack of decision
M I N O R ’ S C O N S EN T T ES T U N D ER CL (JSC
V
W RE N )

“Sufficient understanding to make up own mind” and “understand fully what is proposed” (whatever age)

How likely treatment will make a difference in preserving life if minor says no treatment
W H AT
o
CO U R T S LI K E L Y T O CO N SI DE R
(R E AY)
Policy: Courts likely want to preserve someone’s life

Maturity and experience (AC v Manitoba, 92)

If grave illness and not a big-deal treatment then courts likely to say yes treatment (HT v Children’s Aid)

Factors that may be useful in assessing maturity for decision-making: nature of treatment, risks, benefits;
intellectual capacity to understand decision, appreciate consequences; are the adolescent’s views stable,
true reflection of true values; look at the potential impact of lifestyle, family relationships, broader social
affiliations on ability to exercise independent judgment; existing emotional, psychiatric vulnerabilities;
relevant info from adults who know the adolescent (AC v Manitoba, 96)
Parens Patriae in Canada

UK more ready than Canada to subsume minor’s choice-making under parens patriae
P R E -S T AT UT E H I S T O R Y : JSC & CHC V . W R EN (A LT A ) [1978] –
R E L EV AN T FO R ST U FF N O T UN D ER HCCA

Girl pregnant, wanted abortion, parents objected, sued the doctor for undertaking the abortion

Ratio: the test for minor to be able to consent for herself at common law “sufficient understanding to
make up her own mind” and “understand fully what is proposed”; held: abortion allowed

Concept of diminishing parental rights as child ages: the older child gets, the more reduced parental rights
are (and so, the more restraint a court will exercise in allowing these parental rights)
R E A.Y. –
CO N S E N T MI N O R C A S ES AR E R AR E
MI N O R AN D P AR EN T S W O RK I T O UT
–
US U AL L Y DO CT O R S ,

15 year had cancer; parents were Jehovah’s witness; child believed in refusal of blood products; chemo
required transmission; even with chemo, 10-40% chance of slowing the disease, but no cure

Boy pessimistic about treatment, MDs were clear that his mental state was very important for its success

Ratio: test for mature minor: maturity can come and go, but this boy has been matured by this condition,
what he has been experiencing, going against his wishes would adversely affect his best interest
G I L MO UR , “C HI L DR EN , A DO L E S CE N T S AN D H E AL T H C A R E ” –
P AT R I A E V E R S US A GI N G MI N O R ’ S D E CI SI O N
P AR EN S
HT v Children's Aid Society ON 1996

13 year old Jehovah’s witness refuses blood treatment that is only way to save her life

Look at individual’s ability to understand info, exercise judgment, understand consequences of a decision
Legal Governance of Health Care – Gilmour – 2013

50
Psychologist found that she did not have maturity to meet the test; ok to infringe her religious rights
because
o
Not capable; urgent need for medical treatment; impaired freedom as minimally as possible
Re L – young girl will die of painful gangrene if she does not get blood transfusions

Professor thinks risk that “you will only be mature minor if you agree with doctors”
A.C. V . M AN I T O B A [2009] SCC – F A MI LY A C T
A LLO W S CO URT T O
O R D E R T R E AT M EN T W H EN I N BE ST I N T E R ES T O F C HI L D

14 year old girl, AC, with Crohn’s disease needs blood transfusions but is a JW; oegislation allowed court to
order treatment considered in child’s “best interests,” when 15 and younger; AC objected to this

Reasoning: Majority interprets “best interests” in legislation as allowing minor opportunity to exercise a
mature, independent judgment about treatment – respects adolescents’ evolving right to autonomy

Court must undertake a thorough assessment to determine maturity: the more serious the nature of the
decision, the greater the scrutiny that is justified to see if individual is decisionally capable

Rejects the idea that this legislation imposes an irrefutable presumption of incapacity on those under 16

Policy: tension between autonomy and protection of vulnerability

“Best interest” standard is individualized; the factors that may be useful in assessing maturity are (p.26)

Avoid violation of S.15 based on age, because the assessment is really based on maturity, upholds order

Dissent: once you find someone is a mature minor, no more role for the state, violation of autonomy
C HAPTER 9: P UBLIC H OSPITALS & LHINS
A. G OVERNANCE
OF
H OSPITALS

Governed by board of volunteers and Local Health Integrated Networks (LHINs)

Legislation of board: Statute; Regulation; Internal by-laws approved by minister; S.13 Public Hospitals Act
sets out protection from liability for members of the board

Ownership: most hospitals are private, non-profit corporations even though most of their funding comes
from government; can be owned and operated by religious groups, municipalities

Government approval; need government approval to start up
o

The Minister of long-term care has the power to appoint an investigator and to appoint a
supervisor if they think things are going wrong (used to be just with financial matters)
Standard of care of board: that reasonably expected of person in circumstance given knowledge,
experience
51
Legal Governance of Health Care – Gilmour – 2013

Accreditation
o
Body that does accrediting of hospitals is called Accreditation Canada
o
No statute does accreditation – it is a de facto requirement
o
This body will go in and get hospitals to report on performance etc., and based on this, it will
decide whether or not to accredit hospital, and how long to give the accreditation for
B. S TANDARD
OF
C ARE
L AT I N V . H O S P I T AL
FO R
ST AN D A R D O F CA R E ?
IN
H OSPITALS
S I CK C HI L DR EN (2007) –
W H AT I S T H E

Hospital policies do not determine standard of care but can inform standard; can use expert evidence and
literature to see what is reasonable standard of care

Honest and intelligent exercise of judgment satisfies the professional obligation, even if, in retrospect, it
can be determined that the decision was not the “correct” one

P had leg stiffening episodes; nurse had triaged a baby as urgent instead of emergency; baby suffered
seizure while waiting to be seen; baby left with profound brain damage

Hospital policies had higher standard of care than practice; the relevant triage policy required that a
complete set of vital signs was to be measured on every child at triage

Claim: the triage nurse failed to follow hospital’s own written policies

Expert Evidence: significant evidence was tendered both through fact and expert witnesses, medical
literature, that respiratory rates and blood pressures measured on crying children at triage were
unreliable

Justice Lax found it helpful to compare SickKids’ policy to the policies at similar institutions in 1998, which
did not mandate that all vital signs be measured at triage

Ratio: where the hospital has written policy, this can indicate the standard of care required, but there are
other indications which can be more determinative (such as expert evidence); nurse not negligent
C. N EGLIGENCE L IABILITY
OF
H OSPITALS
Use the same negligence test as usual; Legal Liability of Doctors & Hospitals in Canada,
Picard & Robertson
D I R E CT L I A BI LI T Y – duties a public hospital owes directly to patients – generally
fall under these categories
1) Select competent staff, monitor their continued competence; 2) Provide proper instruction, supervision;
3) Provide proper facilities and equipment; 4) To establish systems necessary for safe operation of hospital
V I CA R I O U S

LI A BI LI T Y
Means employees (or volunteers) acting in the course of their employment; this is the most common basis
on which the hospital is called on to compensate a plaintiff who is suing
Legal Governance of Health Care – Gilmour – 2013
52
Y E P R E MI A N V . S C AR BO RO U G H G EN ER A L H O SP I T A L (1978) (H.C.);
(1980) (C.A.) – 3-2 S PL I T A T ONCA L E V EL : H OS P I T A L S NOT
VI C A R I OU S L Y O R D I R EC T L Y L I A BL E F O R N EG L I G E NC E O F NO N EM P L OY E ES

Most doctors are not employed by hospital; trial judge found liability on hospital

However, there is no precedent for finding liability; no statutory liability

Doctor was found to be negligent; whether hospital was liable for negligence of non-employed physician?

Arguments for liability: people rely on hospitals; P went directly to hospital to get treatment ONCA p.10; P
did not choose doctor, hospital admitted P; Doctor gives up some independence when working in hospital
so hospital has obligation to ensure quality of service; Public expectation that doctor or service will be
provided by the hospital; Absence of control by the patient, usually stemming from the fact that the
patient was not the one who engaged the doctor; Doctor described as being an integral part of the
hospital organization rather than an accessory to it; Stipend or salary received from hospital is often a
factor
V I CA R I O U S L I A BI LI T Y
F O R I N T ERN S

Hospitals are liable for interns and residents because hospital is employer

Attending physician is not vicariously liable, but can be directly liable when

Attending physician directs intern to do something that does not meet SOC (Kielley para 36)

Or A directs intern to do something A knew intern had no skill to do
V I CA R I O U S L I A BI LI T Y

Principle doctors are not liable para 52
o

F O R N U RS E S
Entitled to assume hospital staff are competent; not liable for failure foresee staff negligence
Kielley also making claim against nurse para 52
o
Nurses can’t be absolved of liability just because they followed directions of resident or attending
physicians who were also being negligent; otherwise, everybody could be negligent
K I E L L EY V . G EN E RA L H O SP I T A L (1997)

Dr. Barrett, resident, is not a party of lawsuit; Dr. B was negligent

Failed to attend P when P complained of numerous severe chest pains

Ratio: hospital will be liable for interns, residents

1. Hospital liability? Yes, is employer, pays resident, control relationship etc.

2. Whether the attending physician is liable for resident’s negligence? No

3. Nursing staff? Appropriate for the doctor to assume that they are competent; but nurses still need to
follow doctor’s orders, written protocols; negligence of resident here doesn’t absolve nurses
Legal Governance of Health Care – Gilmour – 2013
53
W EI S S C . S O LO MO N (1989) QC

Man goes in for cataract surgery; his doctor asks if willing to participate in research for eye drops; during
testing follow-up, had heart attack; performed procedure in room inadequately equipped for resuscitation

Ratio: in this case, we see the potential for broadening the scope of liability for hospitals

Decision: hospital failed to meet the standard of care; hospital liable; doctor who performed research
liable

Reasons: hospital committee failed to screen out certain subjects with higher risk; failed to ensure safe
location to conduct research (e.g. capacity to detect problems, equipment needed to treat cardiac arrest)

Notes: it was at the “sharp end” where error occurred, but at the blunt end, the hospital is held liable for
its committee failing to meet the standard of care with respect to frameworks meant to ensure patient’s
safety
D. P RIVILEGES
Privileges to provide medical care to patients admitted to hospital; Medical Advisory Committee (MAC) makes
recommendations to hospital board about privileges

Used to be that only doctors and dentists had privileges in hospitals, but now, we see a broader scope of
health care professionals getting privileges, e.g. midwives

Privileges are governed by the Public Hospitals Act (Ss.33-43)

S. 33: note interconnection with professional governing bodies



S. 37(4): hospital appoints medical staff

“Each application shall be considered by the MAC which shall make a recommendation to Board”

This committee was traditionally made up of physicians, has since expanded

Any physician has the right to apply to the hospital for privileges

When a hospital appoints someone to medical staff, it has to take appropriate steps to review
credentials (e.g. make sure not under disciplinary sanction)
S.37(2): appointments are for one year and are renewable


If disciplinary action taken against physician, hospital has to notify regulatory body; idea that if
dangerous practices going on, then physician can’t escape it by just moving to a different hospital
Gives hospital formal chance to look at individual’s performance, but as a rule, privileges renewed
37(7): due process when not reappointed
P AR A M ET ER S

O F BO AR D D E CI SI O N S
Various committees and board itself cannot overstep bounds of what it is authorized to do (Shephard)
o
E.g. in Nova Scotia, they could not suspend someone because it wasn’t written in statute
Legal Governance of Health Care – Gilmour – 2013

Board can only reject or accept MAC recommendations on the basis of evidence
o


Need expert evidence, incident reports, judicial review
However, deference to board
o
In areas that fall within its expertise, i.e. questions of fact and hospital administration
o
In questions of law, there is a standard of correctness
Bad faith
o
Bad faith requires more than just procedural unfairness; here, tort claim was founded on
allegation that decision made in bad faith; was “so clearly wrong on the merits” – timing and
manner of revoking his privileges was arbitrary; they had just renewed them, all of a sudden
revoked them; oblique evidence of improper motive underlying revocation para 29, Rosenhek
M AR T I N

54
AR T I CL E
(1993):
A Hospital does not have an obligation to admit a doctor to its medical staff

This is an administrative, not a quasi-judicial action (Dr. does not have a lot of procedural rights)

But hospital has to act fairly, e.g. can’t deny or accept based on personal reasons

Remedy for this is civil lawsuit (if doctor disagrees with denial of privileges), but tough

Hospital obligation, ensure competent staff appointed, according to needs, appointments only for a year

Suspension of privileges

Can suspend part-way through term; quasi-judicial decision, physician can apply for JR (HPARB)

S. 34(3) – where there is a serious problem identified with treatment of patient, then the chief of
staff, officer shall discuss the condition, diagnosis with attending physician

S. 34(5) – once the problem with care comes to light, the officer has to report to MAC

S. 41 – provides for written reasons and mechanism for appeal when privileges are suspended (or
qualified), or when member is not re-appointed

S. 43 – any party to proceedings before Appeal Board may appeal decision to Divisional Court

There are concerns that some raise about potential for physicians to have liability in terms of
what would be best for patient X versus what would be best for resource Y

Best interests of hospital rather than best interests of patients – how sort out obligations
here
S H EP H A R D
V
C O L C H E ST ER R E GI O N A L H O S P I T A L (1995) NSCA

MD suing hospital for loss of privileges for 3 wrongful suspensions and 1 wrongful failure to renew

MD with anesthesia privileges ordered by MAC to undergo assessment, he refused
55
Legal Governance of Health Care – Gilmour – 2013

Decision: in light of the facts, the Board would be remiss if it had not called on the doctor for a
demonstration of his competence
CAMERON
V
E A ST P RI N C E H E A LT H A UT HO RI T Y [1999] PEI

Doctor sexually abused patients; Subject to criminal proceedings for this; lost privileges at hospital, subject
to disciplinary proceedings; found guilty of misconduct by regulatory body; now, he wants to practice at
hospital again; dealing with his application for a reinstatement of his privileges

Issue: did the decision of the MAC to deny privileges breach the rules of natural justice?

Decision: the Board did not breach the rules of natural justice in issuing the decision to fail to reinstate
MD’s privileges; no bias, adequate disclosure of information by MAC, just short of breach
R O S EN H E CK
V W I N D SO R R EGI O N A L H O S P I T A L (2010) (ONCA)
HO S P I T AL LI AB L E FO R T O RT O F M I S F EA S AN C E I N P U BLI C O F FI C E
–

Board had revoked physician’s privileges; no proof of incompetency, rather alleged personal interaction
problems with other staff; this is a civil lawsuit

Issue: Did the Board act in bad faith when it summarily revoked MD’s privileges? Yes

Ratio: decision to revoke privileges may be so clearly wrong on the merits as to provide some evidentiary
support for a finding of bad faith

Notes: appeal in admin context, but also civil suit; Court points out that in most instances doctors will be
limited to remedies set out in Public Hospitals Act; but there are cases where there will be significant
damages; here, doctor was precluded from practice for a long time and suffered substantial damages
E. Q UALITY
(QCIPA)
OF
C ARE I NFORMATION P ROTECTION A CT , 2004
Material that is collected by a quality of care committee will be prevented from
disclosure, S.4

S.5 – no court or anything else shall permit or require disclosure


Legal proceeding: lawsuits, discipline proceedings, presumably other proceedings within a
hospital
S.4 – no person shall disclose quality of care information except as this act permits

S.4(3) – provision that allows disclosure to hospital management for the purposes of
improvement

S.4(4) – if necessary for purpose of eliminating or reducing significant risk of serious bodily harm

QCIPA trying to prevent fear from litigation that might stop doctors from disclosing when things go wrong

Codifies a class privilege (remember Wigmore case-by-case) – a presumptive privilege
Be aware of its scope – covers only
 “Quality of care information” S.1 definitions
56
Legal Governance of Health Care – Gilmour – 2013


(a) Is collected by or prepared for a quality of care committee for the sole or primary purpose of assisting
the committee in carrying out its functions, or
(b) Relates solely or primarily to any activity that a quality of care committee carries on as part of its
functions, but does not include, subs.c-f
P R O T E CT I O N S – (S.7) –
S.6
S.4
I T I S AN O F F EN C E T O CO N T R AV EN E
OR
Good faith immunity

(S.8) – no action or other proceeding may be instituted against a person who in good faith discloses
information to a quality of care committee at the request of the committee or for the purposes of assisting
the committee in carrying out its functions; (S.6) – no harassment of someone who discloses
F. R EFORM – I MPROVING P ATIENT E XPERIENCE
How does this jive with controlling costs? (see Shulman)
E XC E L L EN T C A R E
FO R
A L L A CT
o
Intended to make health care providers and executives accountable for improving patient care
o
Foster a culture of continuous quality improvement where the needs of patients come first
o
If you don’t achieve these targets, you may end up with reductions in executive compensation
L O C AL H E A LT H S YS T E M S I N T E G RA T I O N A CT , 2006 –
HI G H LI G HT S

Regional LHINs get budgets for health care in their region (from Minister)

Responsible for provision of certain health care services within their geographical region, e.g.
community care access center, home care services

No jurisdiction over physicians, public health services

Rationale for regionalizing: regional structure could better organize and integrate health services

Mandate: to plan, coordinate & fund local health services, improve access, encourage integration

Accountability agreement with MOHLTC



Ensure they meet performance targets; patients not geographically limited in accessing
service
Integration Discretion

LHINs can require services to integrate if it funds them

Note that there are requirements for LHIN to take into account the significant religious bases
of hospital systems – includes exception for religious-oriented provider (no abortions etc.)
Ministry retains responsibility fund major capital projects, and for MDs, public health, ambulance, labs
O MB U DS M AN O N T ARI O 2010 LHIN R EP O RT – C RI T I CI S MS
1.
OF
LHIN
LHIN did not really integrate community into making health services decisions like politicians promised
Legal Governance of Health Care – Gilmour – 2013
2.
Did not educate public on what to expect with involvement
o
3.
57
LHIN allowed to hold meetings behind closed doors for “education” purposes
Professor: a way to avoid political accountability through using LHINs
o
LHIN being brought in as parties in lawsuits; insulating government
C O M M I T M E N T T O T H E F U T U R E O F M E D I C A R E A C T , 20 04 – P A R T 3 (CF M A)
Gave Minister (now LHIN) power to make hospitals enter into service
A CCO UN T A BI LI T Y A GR E E M EN T S ,
S.21

Statute has largely been used for: performance goals, reporting (largely fiscal focus); but now leaning
closer to goals of patient safety and care; has been drafted broadly enough to include this change in
course

Governing principle: accountability key to sound health systems (S.22)

Service accountability agreements (LHIN, MOH with health resource provider), and performance
agreements (health resource provider and CEO) (S.23)

Mechanisms to require compliance by health resource provider (S.27[3])
o
Ways that LHIN gives notice to CEO if not complying with agreement; issue directives to comply
o
Allow for a hold-back or variation in the compensation that is payable to the CEO; up to 10% of
pay (can be significant – CEOs can be paid up to 800k per year)
Challenges in the LHIN system

Regionalization of health-care, but limits (kept hospital boards, kept separate doctors, ambulances); now
we have a device focused on individual institutions to put an end to hospitals being in debt, overspending

Maybe controls costs, so long as communication between the boards is ensured; could just be an
additional layer of bureaucracy with increased costs in running itself; also, exclusion of doctor’s
problematic

Geographically limited, doesn’t include doctors; so difficulty in planning and shaping health care services

Sometimes when thinking of policy instrument: government should steer, not row
o
E.g. tying compensation to outcomes: steering, not rowing
o
Are there times when should row? Think Walkerton terrible health consequences
C HAPTER 10: H EALTH I NSURANCE & A CCESS TO
H EALTH C ARE S ERVICES
Legal Governance of Health Care – Gilmour – 2013
58
Focus: scheme of legislation; what happens when OHIP refuses pay; how decisions
made, challenged (Shulman)
A. H EALTH I NSURAN CE A CT
Insured services S.11.2
1.
Prescribed “medically necessary” services by physician
2.
Hospitals, health facilities
3.
Prescribed health care services by practitioners (some services by midwives, physio, chiro)
OHIP General Manager S.4(2)(c)

Determines eligibility & amounts payable

Can refuse to pay (S.18 not “Medically Necessary” or not up to standard)

S.20 – applicant can appeal denial by GM to Health Services Appeal & Review Board (HSARB)

S.24 – further appeal to Divisional Court on questions of law, fact; empowered to substitute decision

S.29 – disclosure permitted to & by OHIP; exception, disciplinary, RHPA S.38(4) – e.g. fraud in billing
Lieutenant Governor

S.40 – Lieutenant Governor in Counsel can make regulations to prescribe insured services but

S.40(3.3) – must comply with Canada Health Act conditions for federal contributions (S.45)
o
Can’t do anything that will threaten ON for qualifying for cash contribution under CHA
NO
P R I V AT E I N SU RA N C E
S.14

S.14 – no private insurance for publicly insured services (i.e. no parallel private insurance)

See Commitment to the Future Part II under Health Care Access – Constitutional Decisions
B A SI S
OF
D E CI SI O N S
FO R
D ELI ST I N G

Generally financial motivation; assessment of what should be publicly funded; ethical concerns should be
taken into account; provinces tend to follow other provinces in delisting something

Sometimes ideological: what provinces do, don’t fund for reproductive services, especially for women (e.g.
abortion services funded? In hospitals only, or clinics?)
S HU L M AN

LOSES
S.15
W H EN GO V ERN M EN T D E LI S T S ER V I C E S
Court explains money plays a huge role in S.15 challenges to OHIP
S HU L M AN V . C O L L EG E
OF
A U DI O LO GI ST S ONSJ G EN 2001
Financial concerns play a role in S.15 analysis, even though finances also play a role in
S.1

Diagnostic hearing tests (both basic and advanced) used to be publicly insured
Legal Governance of Health Care – Gilmour – 2013

To control spending on health care, committee of government bureaucrats and representatives of
physicians (no audiologist on committee) decided that have to go to physician for referrals for advanced
hearing tests

OHIP no longer cover hearing aid evaluation; condition on accessing service (advanced hearing tests)

Claim: college of Audiologists, S.15 Charter discrimination challenge; Decision: no discrimination

Reasons: Law v Canada Test S.15 analysis (pre-Withler)
o
No differential treatment between hearing impaired and comparator group (people needing
eyeglasses, needing prescription medications, etc.); all have to go through doctor
o
Purpose of cut was to maintain long-term financial sustainability of OHIP para 42
59
O U T O F C O U N T R Y S E R V I C E S : H E A L T H I N S U R A N C E A C T R E G U L A T I O N 552
We are looking at when OHIP will cover non-emergency services – does cover
emergency services out of country; codifies test for “generally accepted in ON” Flora
(2008); non-emergency conditions, requirements S.28.4(2)


Basic S.28.4(3)
1.
Must have General Manager’s written approval of payment before services are rendered
2.
Services must be rendered within time limit set out in the written approval
S.28.4(2)
3.
(a) Service is generally accepted by the medical profession in Ontario as appropriate for a person
in the same medical circumstances as the insured person (Stein, Kramer)
4.
(b) Service must be medically necessary
5.
(c) Either: identical or equivalent service is not performed in Ontario or service is performed in
Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that
would result in death or medically significant irreversible tissue damage (Smith, Stein)
6.
(d) The service, if performed in ON, is one to which insured person would be entitled no charge
7.
(e) If it’s an out of country inpatient service, the insured service in ON has to be inpatient
8.
(e) Same for out-patient
Urgent complications and impossible to give General Manager Notice before treatment
S.28.4(3)

(3)(b) Urgent circumstances in order to treat medical complications arising or resulting from services
a.
(i) Insured under S.28.4(2)
b.
(ii) Rendered in non-emergency
c.
(iii) For which written approval of payment was granted before the services are rendered, in
accordance with subparagraph 1 of subsection (4)
Legal Governance of Health Care – Gilmour – 2013
60
Coverage for lab services and diagnosed lab tests provided outside of Canada S.28.5

But not for research purposes S.28.5(2)

Emergency treatment entails? Usually, just have to get minimum treatment to get you over the
emergency
B. J UDICIAL R EVIEW : W HAT IS G ENERALLY A CCEPTED
VERSUS E XPERIMEN TAL T REATMENT ?
Not experimental if

Widespread acceptance of approach; lots of clinical evidence becoming part of standard treatment
(Kramer)

It can be accepted if it’s the standard in US (Stein)
Standard of review of “generally accepted” is reasonableness (Flora)

Reasonableness of OHIP funding decisions based on
o
Resource allocation; appropriate to fund, having regard to the patient’s medical circumstances and
medical standards; practices and ethics recognized in this province
F I O N A W E BS T ER -H A RT –
GE N ET I C T EST I N G W AS E X P ERI M EN T A L

This case for historical purposes, statute did not include generally accepted by medical practitioners and
also, genetic testing was determined to be experimental at the time

Would not pay for test to determine if she was at genetic risk of getting breast cancer ($3500)

OHIP would not fund testing because it was experimental and not “generally accepted”
S T EI N V . Q U E B EC , 1999 –
C R Y OT H ER A PY O F L I V ER WA S N OT
E XP ER I M E NT A L
Court found QC’s HPARB decision to refuse to fund unreasonable

Decision was not supported by evidence
a.
Experts said S should be treated immediately
b.
Not experimental; standard in US; just because not standard in CAN doesn’t mean experimental

Patient could not tolerate other treatment – chemo almost killed him

Meanwhile, he had gone ahead and had treatment; effectively cured him (no sign of cancer after this)

Decision: patently unreasonable to refuse coverage for treatments that demonstrably saved life (para 42)

Problems with decision: sounds like they used hindsight, just like Fiona Hart
KRAMER
V G EN M G R OHIP – N OT E XP ER I M EN T A L B EC A U S E T H E R E I S
G E N ER A L A C C EP T A NC E O F T R EA T M E N T
Legal Governance of Health Care – Gilmour – 2013





What’s happened with amendments to regulations with funding out of country services is conditions are
more numerous and more onerous on patients; requirement of general manager of OHIP’s approval;
more stringent regulations on whether physicians think treatment appropriate
Issue: how interpret “experimental.” Is it that treatment unproven? Based on new principles? Publicly
funded? Funded in US privately? Not already been shown to have greater benefit than standard treatment?
Reasoning: tribunal preferred expert evidence called on behalf of applicant and adopts that criteria about
when treatment no longer experimental; 5 of 8 regional cancer care centers in Ontario were already using
this treatment, and 4 of 5 didn’t regard it as experimental
Notes: turns out this treatment already covered by OHIP at regional care centers
Tribunal takes physician’s lack of awareness into account; shouldn’t penalize patient for docs lack of
knowledge; treatment “effectively unavailable” to him thus treatment outside country ought to be covered
S MI T H


61
V
G EN M G R OHIP
Patient sought surgery in England for prostate cancer; treatment he was seeking was available in Ontario,
but not soon enough in Doctor’s view; OHIP denied coverage initially because treatment available in ON
Decision: treatment approved; board ends up accepting that delay in Ontario would result in death or
medically significant irreversible tissue damage
S T AN DA R D
O F R E V I E W : F LO R A V O N T A RI O (CA 2008) – S T A ND A R D
O F R E VI E W FO R WH A T I S G E NE R A L L Y A C C E PT E D I S S T A ND A R D OF
R EA S O NA B L EN ES S , D UN S MUI R (SCC)

Treatment of P would not meet the test of generally acceptable standard of care of a person in his
condition




Facts: cancer was so far advanced that could not use cadaveric or brother donor, went to private clinic in
UK and it cost $450,000, it was successful, wanted reimbursement from OHIP, took this to HSARB
Rejected because ON doctors said not appropriate; appeals and loses at divisional court; appeals again CA
Decision: Divisional court holds that HSARB decision was reasonable; CA affirmed this
Test: generally accepted in ON as appropriate for person in same medical situation

Note: what is affirmed in Flora is made explicit in new regulations for Health Insurance Act

Court says Distinction from Chaouilli: government hasn’t prohibited this new treatment, only won’t fund

No constitutional obligation to fund because Charter rights are not positive rights
C. C ONSTITUTIONAL D ECISIONS : P ARALLEL I NSURANCE

Canadian Charter S.7, everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice

Quebec Charter S.1, every human being has a right to life, personal security, inviolability and freedom

Quebec Charter has potentially broader scope (not just limited to governmental actions)

Section 9.1 of the Quebec Charter sets out the standard for justification
o
In exercising his fundamental freedoms, rights, a person (or government) shall maintain
proper regard for democratic values, public order, general well-being of the citizens of Quebec

Primary objective of CHA is “to protect, promote and restore the physical and mental well-being of residents of
Canada and to facilitate reasonable access to health services without financial or other barriers” (S.3)
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C H AO UL LI V Q U E B E C 2005 SCC –
( O N LY BI N DI N G O N Q U E BE C )

Prohibiting parallel insurance (private), long wait times, violated Quebec Charter of Rights and Freedoms




In a 4 to 3 decision, the Court found the Acts violated Quebeckers’ right to life and security of
person under the Quebec Charter
3/7 judges also found that the laws violated S.7 of the Canadian Charter of Rights and Freedoms

Morgentaler (para 118), physical and psych stress from delayed treatment can trigger S.7

S.1 ban on parallel private insurance is arbitrary – meaning (para 130) bears no relation to or is
inconsistent with the objective that lies behind the law
Issue: whether prohibition on parallel private insurance is necessary to preserve public system


FO CU SI N G O N F UN DI N G D E CI SI O N S
Under Quebec S.9.1 justification (like Oakes), objective of the prohibition is to preserve the
integrity of the public health care system
Decision under Quebec Charter: Majority, 4:3, Deschamps + McLachlan + 2 judges

Quebec Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the
face of long wait times violated the Quebec Charter

Government says loss of insurance, personnel in public, lower quality, not enough evidence

Not all provinces ban parallel private insurance, but all have some control mechanisms
Decision under Canada Charter: 3:3, McLachlan + 2 judges sans Deschamps (3)

Issue: whether the prohibition on private insurance for publicly insured services violates S.7

According to the government’s argument, resources will be diverted from the public health system
into private health facilities, ultimately reducing the quality of public care

Claimaints: prevents most Canadians (middle-income earners) from accessing additional care,
while permits wealthy who can afford to travel abroad, or pay for care without insurance

State monopoly, on evidence, delays in treatment, adversely affect the security of the person
A F T ER M AT H
OF
C H AO U L LI ? M AN FR E DI

QC created guaranteed wait times for limited types of medical services (e.g. hip replacements); if a patient
can’t get services in that system, then the public health insurance plan plays for it in private clinics

Government realized cost them more to pay for services in private clinics that couldn’t be provided for in
the public system within the defined length of time, ongoing tension on how the system will be structured
ON
II
SI T U AT I O N
– C O M M I T M EN T
TO
F UT UR E
OF
M EDI C A RE A CT P A RT
Reinforces public health care system by limiting physicians getting benefits from
private insurance, meant to bolster S.14 of Health Insurance Act by closing loopholes
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
Prohibition for physicians accepting payment for a service that is more than the OHIP amount (S.10)

If an unauthorized payment is discovered, General Manager of OHIP will go after MD to get it back

Prohibition for providing a preference for accessing insured services (S.17)

Legislation addresses all aspects of paying more for insured services; MDs can’t pay more, patients can’t
pay more, third parties can’t pay more, no preference; controls supply-side and demand-side practices
B L UR R I N G


P UB LI C , P RI V AT E DI V I D E
– F LO O D
AN D
T HO M A S (2010)
What happens with Chaoulli?
o
There was great fuss and furor that now all the bans on parallel private insurance will fall
o
Since Chaoulli, lawsuits that are similar elsewhere; 3 charter challenges going ahead at time of article
Policy choice for public health insurance for all medically necessary health services is being challenged
o
Class action in Alberta going ahead regarding access to particular type of hip replacement
o
Action by BC physician – who opened clinic, wants to provide privately funded hip, knee replacements
o
ON lawsuits: at least two individuals who claim the delay to receive diagnosis and treatment
o
Lawsuits ongoing, no final answer; will Chaoulli spread more widely?
o
ON tries to steer physicians more and more to publicly funded system
C HAPTER 11 I NDEPENDENT H EALTH F ACILITIES
A. Set-up

IHFs were originally conceived as a way to manage health care delivery and control costs through cheaper,
smaller operations

Regulations are in hospitals, not applicable to IHF; so IHF Act covers, can’t charge more than OHIP pays
I N T R O : T HE IHFA
BY
G. S HA RP E

If IHF wants to provide publicly funded service, needs to have a prior agreement with government, license

Facility bills the government as opposed to getting global funding as hospitals do

MDs bill OHIP for fee-for-service performed at IHF if it is an insured service; IHF then bills the government
for the facility fee (overhead & operating costs, e.g. other staffing beyond the doctors)
o

Doctors can’t charge more than OHIP rates for insured services
Doctors can provide non-insured services (which they don’t bill to OHIP, e.g. cosmetic surgery)
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Legal Governance of Health Care – Gilmour – 2013

Statute also has quality assurance requirements, quality assurance also ensured by monitoring by CPSO
M C M I L L AN , B AR N ES “T H E IHFA: A
L EGI S L A T E ?
FI RST FO R
N. A M ERI C A ” –

Ensure quality of care; i) licensing; ii) monitoring by CPSO

Cheaper way of delivering health care, manage delivery of health care

Improve access to care, increased privatization of health care (mixed public and private)
WHY
B. Private, Public Effects



Effects of ability to treat “private” patients on public system
o
Limited pool of personnel get lured away from public facilities
o
Concerns regarding administrative costs (higher if there are more centers)
o
Concerns regarding quality of care (e.g. dialysis in US)
o
Clinics choosing to cover only expensive surgeries
Does Commitment to Future of Medicare Act resolve concerns?
o
Tempting for government to transfer cost of care to private individuals and companies
o
But transferring costs does not mean controlling costs; this could mean that costs go up – lose the
discipline that a single payor can impose on the market-place
o
Little or no evidence that care is cheaper or better using IHFs
We need to be sure that we are getting good value out of private money out of these clinics, recognizing
that they are for profit, have a bottom line; basically have to ask: at whose expense is profit being made?
Adamo v. CPSO, (2007) (Sup. Ct.)

MD subject to professional disciplinary charges at an IHF; dismissed, but in course of investigation, DC
found he had breached condition of registration, falsified terms; punishment was take courses, have
independent quality advisor at clinic (onerous requirement)

Ratio: because DC had rejected all allegations that had to do with practices at clinic, then there was no
rational relationship between penalty and misconduct that had been found

Case reminds us of basic principles of imposing a penalty – has to be related to the initial complaint,
Wilson

Notes: how to enforce professional obligations? Vis-à-vis facility use IHFA (e.g. facility license suspension),
and against individual practitioner, use professional discipline proceedings (RHPA)
Legal Governance of Health Care – Gilmour – 2013
65
C HAPTER 12: H EALTH I NFORMATION :
C ONFIDENTIALITY , A CCESS , D ISCLOSURE
A. C OMMON L AW – A UGMENTED
BY STATUTE
Rozovsky article – purposes of keeping health records
1.
Clinical: to treat, care for patients; to show breach in treatment, failure to treat or communication
2.
Accreditation for hospitals and health facilities
3.
a.
Accreditation Canada surveys health facility every few years
b.
Could be used in lawsuits to show what is a reasonable standard for hospital
Disciplining health professionals
a.
Using records in this way could come into conflict with patient confidentiality, when patient is not
a party to proceedings
b.
Under HPPC, investigator can seize patient charts; problems for patient
o No right to know file has been accessed; no standing at disciplinary proceedings
P AT I EN T
A C CE S S T O H E A L T H R EC O R DS
McInerney if legislation does not apply, patient is entitled to examine and copy all
information in her medical records which the physician considered in administering
advice or treatment

Including (records prepared by other doctors that the physician may have received)

But doctor owns physical file; access does not extend to information arising outside the doctor-patient
relationship; not absolute: doctor can deny access if here is a significant likelihood of a substantial
adverse effect on her physical, mental or emotional health or harm to a third party (onus on Dr. to prove)

Entitlement comes from fiduciary duty Dr. owes to patient through disclosure and confidentiality

And patient autonomy and ownership of the information patient gives to Dr. (but Dr. owns physical file)
F I DU CI AR Y

D UT I E S
DR.
O W E S P AT I EN T
(M C I N E RN EY )
Good faith & loyalty; hold info about patient in confidence; make proper disclosure of info; grant access to
info used in administering treatment
M C I N ER N E Y V . M A C D O N A LD , [1992] 2 S.C.R. 138

Patient wanted copies of contents of her complete medical file; Dr. gave copies of stuff Dr. prepared; but
not stuff other docs prepared; Dr. said the other stuff is property of those other docs

Decision: patient should get all stuff, even other doc’s file

Reasons: Dr. is owner of file but holds information in “trust”, Court stops short of saying fiduciary duty of
Dr. to patient in all aspects
Legal Governance of Health Care – Gilmour – 2013
TORT
66
O F I N T R USI O N UP O N S EC L USI O N
This is a bank case but prof says could apply to health information, huge development,
Court does not want to open floodgates so set limit on damages for this tort and must
be highly offensive
J O N E S V . T SI G E , 2012 ONCA 32

J suing T for tort of breach of privacy; T worked at bank where J had account; T in a relationship with J’s exhusband; T accessed J’s account for info 174 times

Issue: should common law recognize tort for invasion of privacy?

Requirements: (a) the defendant’s conduct must be intentional or reckless; (b) the defendant must have
invaded, without lawful justification, the plaintiff’s private affairs or concerns; and (c) a reasonable person
would regard the invasion as highly offensive causing distress, humiliation or anguish
B. P ERSON AL H EALT H I NFORMATION P ROTECTION A CT
(PHIPA) 2004
Sets out rules that apply when a health provider or (Health Information Custodian)
must follow when collecting, using, and sharing personal health information, gives
patients right to see health records, correct any mistakes

Common theme: balance

Balancing privacy with other goals, including: providing health care; benefits public derives from
uses & disclosures of personal health information; operation of publicly funded health care
system
PHIPA applies over PIPEDA – P E R S O N A L I N F O R M A T I O N P R O T E C T I O N A N D E L E C T R O N I C
DOCUMENTS ACT

W H O & W H A T D O E S PH IP A G O V E R N ?
HICs; Agents of HICs; Recipients of PHI from HICs; Persons who provide electronic means to HICs to handle
personal health information (PHI); PHI, with special rules for health numbers
W HO
IS A
HIC S.3

Health information custodian, as defined in PHIPA

A person or organization identified as such in PHIPA who has custody or control of PHI (S.3)

Health care practitioners, including: a member defined under RHPA; A drugless practitioner under
Drugless Practitioners Act; A member of Ontario College of Social Workers and Social Service Workers
who provides health care; A person whose primary function is to provide health care for payment
W HO

I S AN
A G EN T S.2
“Agent” is person that, with the authorization of the HIC, acts for or on behalf of the HIC in respect of PHI
for the purposes of the HIC, not the agent’s own purposes, whether or not the agent has authority to
bind the HIC, whether or not the agent is employed by the HIC and whether or not the agent is being
remunerated (S.2), example, a lawyer for a hospital is an agent
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Legal Governance of Health Care – Gilmour – 2013

Except as permitted or required by law, agent mustn’t use, disclose PHI, unless permitted by HIC (S.17)
W HO
IS A
R E CI P I EN T ?

Refers to a non-HIC who receives PHI from a HIC (see S.49[1])

Example: when student services at Osgoode gets a doctor’s note, student services is recipient

Who is not a recipient? An agent of a HIC; A HIC in performing work of a HIC; A non-HIC collecting PHI
directly from individual to whom PHI relates or other non-HIC

Recipient Rule S.49: non-HICs that receive PHI from a HIC must not use or disclose it for any purpose
other than the purpose for which the HIC was authorized to disclose the information under PHIPA, or for
the purpose of carrying out a statutory or legal duty, subject to the regulations or any other law
W H AT I S P E R SO N A L H E AL T H I N FO RM AT I O N (PHI) S.4
PHI S.4 I N C LU D E S I D E N T I F YI N G I N FO R M AT I O N ABO UT AN
I N DI V I DU A L I N O R A L O R R E CO R D E D FO RM T H A T

Relates to his physical, mental health; Relates to providing care, including identifying a provider of care; Is
a plan of service within meaning of Long-Term Care Act; Relates to donation of body part, substance;
Relates to payments or eligibility for HC in respect of the individual; Is a health number; Identifies a SDM of
that individual; Is in a record held by a HIC where the record contains any of the above information
W H AT

H E A LT H C AR E S.2
Any observation, examination, assessment, care, service, procedure done for a health related purpose
o

IS
To diagnose, treat or maintain physical or mental condition; to prevent disease or injury or
promote health; or as palliative care
In PHIPA, care includes dispensing & selling drugs, devices, equipment for health-related purposes
COLLECTING, USE, DISCLOSURE OBLIGATIONS
D E FI N I T I O N S : C O LL E CT , U S E , D I S C LO S E

“Collect” means to gather, acquire, receive or obtain PHI by any means from many source

“Use” means to handle or deal with the information, but does not include to disclose the information;
transferring PHI between an agent of the HIC and the HIC is a use and not a disclosure

“Disclose” in relation to PHI in the custody or under the control of a HIC, means to make the information
available or to release it to another HIC or to another person, but does not include to use the information
HIC O BLI G AT I O N S S.11-13

Take reasonable steps to ensure accuracy of the info it uses or discloses (S.11)

Maintain security of the PHI in its custody or control (S.12)

Have info practices that comply with PHIPA (BI) (e.g. disposing of PHI in secure manner, S.13)
C O L L E CT I O N , U S E & D I SC LO S UR E R EQ UI R E M E N T S
1.
FO R
Must have consent to collect, use or disclose PHI, subject to specific exceptions (S.29)
HIC
Legal Governance of Health Care – Gilmour – 2013
2.
Consent must be knowledgeable, different than “informed”, S.18(5)

“Knowledgable”: if reasonable to believe person knows purposes, & that he can give or withhold
consent (see generally S.18)
3.
Consent must be in relation to health information
4.
Consent can be implied or express between HIC for health care purposes S.18(2)

5.
6.
68
Implied example S.20(2): if you are in the hospital with your family doctor and your doctor is
disclosing info to hospital for treatment, consent to doc disclosing is implied
Consent must be expressed in these situations S.18(3)

HIC disclosing to non-HIC

HIC to HIC but not about providing health care or assisting in providing health care
“Capacity” defined for PHIPA, e.g. to consent, S.21
G E N E R AL LI MI T AT I O N S
HIC S.30
A N D R EQ UI R E M EN T S FO R CO L L E CT I O N FO R

HICs must not collect, use or disclose PHI if other information will serve the purpose, S.30(1)

HICs must not collect, use or disclose more PHI than is reasonably necessary to meet the purpose, S.30(2)
E XC EP T I O N S
T O R E C EI V I N G CO N S E N T
S.37-40

Significant harm to a person or a group S.40: despite confidentiality provisions, disclosure is acceptable
without consent where it is needed to eliminate or reduce significant bodily harm to a person or a group

To contact SDM S.37(g)

If not reasonably possible to obtain individual’s consent S.38(a); when disclosure required by law, e.g.
Dr. determine by reason of medical condition patient should not be driving
o
E.g. Smith v Jones – psychiatrist could disclose info where risk of harm to other parties
PATIENT RIGHTS
Meant to bolster patient’s already existing CL right (seen in McInerney) – for access records involving themselves

Corrections – S.52, everybody has the right to access his records of PHI that is with a HIC
o

Exceptions seen in McInerney: right of access not absolute, right of privacy not absolute, even at CL
S.55 – individual can request HIC to correct his or her record
o
Can make a request, and if the record is inaccurate or incomplete with respect to things like facts (did
person have strep throat or a different infection) – HIC must change record
o
Can be professional opinions or observations included in patient record, or staff in hospital

As long as that’s made in good faith, no requirement to change
Legal Governance of Health Care – Gilmour – 2013

69
If does not change, must give reasons, inform person there’s a right to appeal, and whether
or not they decide to appeal patient could attach a statement of disagreement to that
E N F O R C E M E N T O F PHIP A
I N FO P R I V A CY C O M MI S SI O N ER ;
O V ER SI GH T BO DY O F PHIPA; I N LI E U
O F CI V I L SUI T S SO AN Y O N E CA N CO M P L A I N ; P O W E RS IPC

Can receive complaints and investigate S.56

Can investigate on her own motion if someone has contravened S.58

Can make an order after conducting a review S.61

P can sue if commissioner found offence committed under PHIPA, only way to sue under PHIPA S.65(2)
o
Could sue for both tort of inclusion upon seclusion and under PHIPA but don’t get double
o
Tort of inclusion is CL so it’s not under PHIPA
o
Note that most people stop at the order of IPC
o
Potential argument that facts of IPC can be taken as proven in civil, but may be strong arguments
that facts not tested, little opportunity to respond; without jurisprudence yet
H O W T O A N A L Y Z E B R E A C H O F PH IP A
O R D ER HO-002, O T T A W A H O S P I T AL 2006

PHI accessed inappropriately by girlfriend
1.
Is personal health information at issue?
2.
Who is the HIC?

Is the person a HIC on their own or is the hospital is a HIC?


Was the nurse an agent of hospital?

3.
Who maintains the file? Look at definitions of HIC S.3 and agent S.2
Agent is in reference to usual duties; usual duties wouldn’t include accessing info about
P
Was the info used, disclosed, was there a breach?

Look at definitions in S.2 to see if “used” or “disclosed”
4.
Was info use, disclosed, etc. in accordance with PHIPA?
5.
What were the HIC’s obligations? Maintain security S.12 and notify when PHI is lost
6.
Were obligations followed?
7.
What did HIC do in response?

Decision: breach of PHIPA; Order:
70
Legal Governance of Health Care – Gilmour – 2013

Hospital to review and revise practices, procedures, protocols about PHI; Implement protocol
to ensure reasonable and immediate steps taken on notification of breach; All agents and
employees to be informed of PHIPA and requirements; Strongly urges make apology; To
ensure compliance, orders hospital to come back with compliance by certain date

Decision: Court concluded hospital had not responded adequately; steps taken under PHIPA
should not have been allowed to be delayed by concurrent disciplinary processes
C HAPTER 13: H EALTH S ERVICES , D ISCRIMINATION
AND D ISABILITY
A. O NTARIO H UMAN R IGHTS C ODE
Applies to private and public activities in the province; quasi-constitutional, prevails
over statutes in conflict
Enumerated grounds S.1

Right to equal treatment without discrimination on listed grounds; it’s a limited list, no analogous grounds
No discrimination S.11

S.11 – prohibition of constructive discrimination or adverse effects discrimination
o
Factors that are facially neutral can still contravene the code if the effect is to exclude or restrict a
group of persons who are identified by a prohibitive ground
o
Ok to discriminate if they are reasonable and bona fide requirements (or affirmative action S.14)
A CCO M MO D AT I O N

T O T H E P O I N T O F UN D U E H A RD S HI P
S.11(2)
Tribunal will only find that requirements are reasonable and bona fide if it is satisfied that the needs
cannot be accommodated without undue hardship; consider cost; sources of funding; health, safety
requirements
D I S A BI LI T I E S

S.10 – definition of disability
o
“Any degree of physical disability, infirmity, malformation, disfigurement caused by bodily injury, birth defect, illness and,
without limiting generality of foregoing, includes diabetes mellitus, epilepsy, brain injury, paralysis, amputation, lack of
physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech
impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device”
o
S.10(3) – includes past and presumed disability
S.17 –

DI S A BI LI T Y DI S CRI MI N A T I O N
Disabled person incapable of performing duties – let go
D E F EN C E
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Legal Governance of Health Care – Gilmour – 2013

S.17(2) – no tribunal or court shall find a person incapable unless it is satisfied that the needs of the person
cannot be accommodated without undue hardship on the person responsible for accommodating those
needs, considering the cost, outside sources of funding, and health and safety requirements
B. C HARTER

Consider Ss.15, 7, 2, 1; S.15 is not a closed list (enumerated and analogous grounds)
S. 15 D I S C R I M I N A T I O N T E S T
Law v Canada
1.
Did the law, program, or activity impose differential treatment between the claimant and a comparator
group? That is, was a distinction created between the groups in purpose or effect?

Withler, Kapp, Andrews less emphasis on comparator group; just distinction + disadvantage

(a) formal distinction drawn between the claimant and others on the basis of one or more
personal characteristics or (b) a failure to take into account the claimant’s already disadvantaged
position within Canadian society (Law cited in Shulman, para. 22)
2.
If so, was the differential treatment based on enumerated or analogous grounds?
3.
Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the
claimant in a manner which reflects the stereotypical application of presumed group or personal
characteristics, or which otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human being, or as a member of Canadian
society, equally deserving of concern, respect and consideration? Look at

Pre-existing disadvantage; Nature and scope of interest; Ameliorative purpose or effect of the law
on more disadvantaged groups
E. (M R S .)
V
E V E (1986) SCC
EA R LY
C H AR T E R
D AY S

Must consider how much SDM’s actions conform to patient’s wishes (see patterns)

Developmentally disabled, difficulty communicating; mother wanted E sterilized because E would not be
able to manage, non-therapeutic (not for health) sterilization

Issue: can parent (SDM) consent to non-therapeutic sterilization of developmentally disabled daughter?
No


SDM must be for benefit of patient, not for mother’s benefit, non-therapeutic sterilization is
grave intrusion on person’s rights, can never be determined that sterilization is for benefit of
patient
Note: within context of eugenics, sterilization of poor, visible minorities, disabled people
E AT O N
V
B R A N T C I T Y (SCC 1997) – S.15
AN AL Y SI S I N DI S A BI LI T Y
Effect of judgment on extent of SDM’s power in comparison with education expert

Education placement of 12 year old girl with cerebral palsy

No way to communicate; parents want mainstream classroom for 3 year, tribunal says special education

S.15 objectives
Legal Governance of Health Care – Gilmour – 2013

To eliminate discrimination attributed to untrue characteristics based on stereotyped attitudes

Take into account true characteristics of the group and attempt to accommodate

o
But professor notes disability is also a result of social, political environment
o
Court notes can’t allow social assumptions to banish disabled from participation
72
Factors to consider when integrating people with disabilities

Tribunal says Mainstream classroom isolating her more
o
Court says must look at this from child-centered perspective
o
Decides that as she grows older, it would benefit her to be integrated
Q U E SN E L V ON HRC 1995 –
UN DU E HA RD S HI P T E ST I N
A CCO M MO D AT I N G F O R H EA LT H CA R E S ER V I C E S

Decision under Human Rights Code, not Charter

Chiropractor had office on first floor of building he owned; woman uses wheelchair and was not able to
access ; chiropractor said we gave her a lot of options (could come to home, lift her up); HRB complaint

Decision: yes HRC applies to health services and applies to private services

Doctor had to build ramp because no evidence to show it was beyond undue hardship

Tribunal found those other options didn’t promote legislative goals of integration, dignity, autonomy
HRC applied to health services
1.
Onus on complainant to establish a prima facie (based on first impression) case of discrimination
2.
Onus shifts to defendant to prove that he met test for reasonable accommodation
3.
Requirements of S.17 of code

Reasonable accommodation to undue hardship
a.
3 factors: costs, outside funding, health and safety requirements
b.
When considering cost (high threshold to meet for D)
i. Would have to alter essential nature or substantially affect the viability of D’s enterprise
ii. Need evidence (in Quesnel owned building, no evidence of the above)
E LD R I DG E
S.15
V
BC SCC 1997 –
DI S A BI LI T Y DI S C RI MI N A T I O N UN D E R

Issue: provincial failure to provide sign language during med services and hospitals, contravene S.15?

Decision: Yes; Test (different from Shulman, where still access to services)
1. Look at regulation to see what services ensured (like in OHIP)
73
Legal Governance of Health Care – Gilmour – 2013

Legislation does not require funding of ASL
2. However, discretion of actors was discriminatory

Application of Charter to hospital



Adverse effect discrimination

Ability to communicate is fundamental part of health service

If you’re going to give equal service to all, must provide ASL

Cost of ASL was actually going to be very small
S.1 limits floodgate arguments


Not a public entity; subject to charter because not government per se but can still apply to
inherently governmental actions para 42
Other languages; access to services in rural areas; SCC says does not deal with those but that
hearing impaired are guaranteed to equal treatment; also, S.15 would not cover languages
ASL interpreters aren’t really found where they should be; can’t tell what ramifications of Eldridge are
G R AN O V SK Y V . C AN A DA (2000) SCC

Better understanding of disability and legal requirements; Court’s comment of nature of disability
important

Man applied for disability pension under CPP; didn’t qualify because temporary disability

Claim: P says CPP failure to take that into account is discrimination against S.15

What S.15 is for disabilities


True focus of the S.15 claim is not the impairment or associated functional limitations, but the
“problematic response of the state” to these (social constructions of disability)
Decision: CPP did not infringe S.15
o
Can have differential treatment when it is to ameliorate situation of those who are even worse
off (those with permanent disability) ; appropriate to target those better off to contribute to CPP
F R E E M AN V . CAD B LO O D S E RV I C ES (2010) ***** ( M O O R E ,
DI S T DI S CR I M W H EN C L O S ED SP E C P RO G RA M F O R D YS L EXI A )
S C HO O L

CBS sued F, a gay man, for negligent misrepresentation (lying on blood donor screening form)

F counterclaimed for damages against CBS (private corporation) & Crown for breaching S.15 rights

When appropriate to take disability into account, when not in terms of accessing health care service?

Decision: “reasonable person in this situation” would not conclude discrimination; epidemiologic evidence
suggests that, in the context of blood donor screening, treating gays differently (other things being equal)
is based on characteristics relevant to the safety of the blood system
Legal Governance of Health Care – Gilmour – 2013

74
Reasoning: (i) dignity isn’t a separate legal test; (ii) 4 factors in Law don’t create new test of
discrimination; (iii) equality = comparative, but not to exclusion of goal of substantive equality (para 388);
also, need “law” to engage S.15 (para. 393; Auton – where breach of S.15 found)
o
No “law” here – just guidelines regarding safety of staff & recipients based on scientific evidence
o
What has P been deprived of? No legal right to donate blood
o
Not just directed gay men, also exclude other groups that have high rates of HIV (comparator =
identical except for impugned personal characteristic)
C HAPTER 14: P UBLIC H EALTH L AW
A. P U BLIC H EALTH , P OPULATION H EALTH
J. M AN N


H UMAN R IGHTS
“H E AL T H & H U M AN R I G HT S ” (1999)
Medicine versus public health
o
Medicine has a focus of individual health while
o
Public Health has a focus on population health (ensuring conditions health)
o
Access to health care is one of essential conditions for health, but is not sufficient in and of itself
WHO definition of health
o

E T A L .,
AND
A state of complete physical, mental and social well-being, and not merely absence of disease or
infirmity (multi-dimensional; role of health promotion); broad definition
Human rights: focusing primarily individual rights; primary focus relation between state & individual
o
UN conventions – declarations of human rights
o
Persuasive effect of international rights on domestic law
o
Growing legitimacy, influence & scope of human rights framework

Why care about the connection? Violations of rights affect health, underlying socioeconomic conditions of
life relate to physical, mental health, well-being; acute healthcare is essential, but so are other factors

Health workers are not trained in human rights
L. G O ST I N , P UB LI C H E AL T H L AW : P O W ER , D U T Y , R ES T R AI N T
(2000)

Public health: focus on risk identification, reduction & management, prevention or amelioration of harm
1) Risk Assessment: Individual versus Collective Tensions

Risk concept is problematic
75
Legal Governance of Health Care – Gilmour – 2013

o
Tensions between collective and individual rights and interests
o
Risk assessment made in conditions of uncertainty (e.g SARS, didn’t know how it spread)
Not all public health interventions effective – government should, through the means, ends test,
accurately measure health hazard, effectively reduce risk, ameliorate the harm, rigorously evaluate the
intervention
2) Science vs. Public Understandings of Risk

Science depends on a probabilistic assessment of risk
o
Science evaluates risk of dangerous events occurring and severity of risk
o
Lay public, who have a different understanding of risk, different personal, social, cultural values

Lay people judge risk based on its salience, e.g. media sensation, however, should not dismiss lay risk

Public also uses rules of thumb and simplistic assumptions
o
Public tolerates risk because they assume they can control it
o
People will also assume risk because they see themselves as benefitting from activity (e.g. driving)
o
May be prepared to accept things they may consider to be a natural risk vs risk from novel
technology (e.g. nuclear technology)
o
Public may have more contextual and richer understanding of risk
3) Costs and public health risks

Cost of precautions; slowing down delivery of service
B.C. (S UP ’ T . M O T O R V E HI C L E S ) V . B.C. (C O U N CI L
(1999) SCC (G RI S ME R )
OF
H U M AN R T S )

A case about public health indirectly, about regulatory system meant to ensure public safety on highways

Using Meorin decision in different context, direct and adverse discrimination

Grismer has physical disability, limited peripheral vision; superintendent of motor vehicles cancelled
license on ground that vision fell below standard; no possibility of individualistic testing to show he could
drive, prima facie case of discrimination; went to AB, got license, gave out individualized testing

Ratio: there will be some acceptable increase in risk to highway safety to accommodate permitting wider
range of people to drive, avoid discrimination; “reasonable” safety will suffice

Error was not to lower safety standard; error was in adopting absolute standard with absolute
exclusion; evidence was that some people with this condition could still drive safely

Does not satisfy Meiorin test
o
All government had to do was prove on BOP that denial is reasonably necessary to the
standard of safety; requires that government considered and reasonably rejected all viable
Legal Governance of Health Care – Gilmour – 2013
76
forms of accommodation; absence of any individualized assessment of Grismer’s abilities
equals discrimination contra human rights statute; failed; onus on government
C.P. V . C AN A DA (CHRC) (1988) F.C.A. – O P P O SI T E FI N DI N G F RO M
ABO V E , EX C L U DE P E RS O N W I T H DI A B ET E S , T O O M UC H RI SK
S EN AT E C O M MI T T E E , T H E H E A LT H O F C A N A DI AN S – T H E F E D ER A L
R O L E (K I R B Y R EP O R T )

Intro to concepts of population health & broader determinants of health

75% of people’s health is determined by stuff outside of health system
o



Role of social, economic, environmental factors in health; not addressed by public health
insurance
Causes of mortality have shifted
o
Away from acute infectious disease (e.g. SARS) to chronic conditions (diabetes)
o
Economic burden is huge; 22% of GDP; chronic disease now accounts for largest portion of
economic burden of illness (157 billion)
o
Most chronic diseases are preventable; need to develop a strategy; devote resources and energy
Population health
o
Medical and non-med determinants of health; non-medical factors have biggest impact
o
But no country in the world has policies based on population health control because

Practical obstacles, hard to establish cause and effect if effect not apparent for many
risks

No short term payoffs, public, politicians will not be galvanized to act

Have to coordinate with other actors, like employers
Focus on prevention, in comparison with Campbell in response to SARS
Ontario, SARS & Public Health in Ontario Interim Report (2004) (Archie Campbell,
Commissioner.)


2 general types of work under umbrella of public health
o
(i) Infectious disease prevention; and
o
(ii) Health promotion & population health
Campbell argues that we should prioritize (i)
o

Infectious disease are direct threat
Which should be prioritized? Post-SARS, Campbell argues for infectious disease, but Kirby Report?
B. Federal, Provincial, Municipal Jurisdiction
77
Legal Governance of Health Care – Gilmour – 2013
N. R I E S , “L E G A L F O UN DA T I O N S
(2005)
OF
P UB LI C H E AL T H
IN
CANADA”

All provinces have public health legislation which covers health hazards, communicable disease control
etc.

Public health legislation powers – serious powers
o
To inspect premises, disinfect, destroy property, detain people for treatment, collect and disclose
personal health information, take action to control epidemics and so on

Provincial public health law gives sweeping power to the administrators charged with enforcing them, can
enact bylaws that have a local purpose and effect, e.g. limiting pesticides

Provincial health statutes – e.g. Provincial Health Promotion and Protection Act generally establish a
Provincial Chief Medical Officer of Health (CMOH)
o

Monitors residents’ health; advises government; superintends health officers & inspectors
Provincial public health statutes typically include
o
Reporting requirements
o
Contact tracing responsibilities (e.g. HIV testing includes requirement that the individual testing
positive be reported to the public health authorities)
o
MOH orders (which are enforceable in court) – i.e. a person who has failed to comply with an
order be taken into custody, admitted in hospital
o
Provision for judicial enforcement of health officers’ orders (with appeal) but if individual has to
be treated in the interim, by the time the issue gets heard in court, the issue could be over
o
Public health legislation will also authorize the establishment of health registries

Provincial emergency powers: governed by additional statutes; do provide that provinces can declare a
state of emergency – when they do so, there are broad powers that come into effect

Charter rights could be implicated when breaches of civil liberties, even in case of a health emergency;
state for its part would rely on S.1 – these are “reasonable limits” given the threat to public health and
safety
o
E.g. keeping SARS health workers in hospitals and not letting them go home
M. J A CK M AN , “C O N ST I T UT I O N A L J U RI S DI CT I O N
C AN A D A ” (2000)

OVER
H E A LT H
IN
Criminal law power has been expansively interpreted – broad
o
Problem: can be a disguised attempt to regulate matters that are not actually criminal

Legit use of criminal law is Food and Drug Act; directed at protecting health of public

RJR MacDonald, upheld under criminal law power
Legal Governance of Health Care – Gilmour – 2013


78
Must have prohibition, penal sanction, directed at legitimate public health evil
Provinces have bulk of jurisdiction, but important fed powers too, most often based on fed criminal power
o
Is there a prohibition + penal sanction, that is directed at legitimate public health evil (RJR)? Some
scope for regulation not just prohibition (as in Hydro-Quebec); limits in the scope of fed
regulatory power (an attempt to regulate in provincial jurisdiction)? Assisted Human
Reproduction Act SCC
P O ST SARS
Public Health Agency of Canada

Established in aftermath of SARS
o
Broad goals: infectious and chronic; but bound by constitutional power divide

Response to claim that government was not coordinated in response to disease

Role in connection with international health regulation (see below)
Ontario Agency for Health Protection and Promotion

SARS led to an increase in resources devoted to public health

Public health is still the “poor cousin” of acute health services

ON also revamped its emergency powers and expanded public health legislation post-SARS: see now
amended Emergency Mgmt. & Civil Protection Act, Ont. Agency for Health Protection & Promotion Act

Established arm’s-length agency (still reports to Minister); provides expert advice & support; in emergency
CMOH can direct it to provide tech support & operational response assistance (surge capacity)
C. I NTERNATIONAL L AW ; I NTERNATION AL H EALTH
R EGULATION
Globalization and Instrument Choice: Role of International Law: Toope & Rehaag, 2005
How international law will affect domestic law?

Authors have expansive view of international law and norms

International law is best seen as compulsion (treaties) and persuasion (customary norms)

Need better integration of Canadian agencies who work globally with those who craft policy nationally and
provincially; domestic authorities can legislate contrary to custom

Need better customary international law
o

It could bind states; even ones who are objectors; controversial view
“Transformation”: when treaties start to apply in Canada
o
Not clear when this happens, e.g. Kyoto protocol signed but not followed
Legal Governance of Health Care – Gilmour – 2013
79
o
Courts see international legal norms (compulsory and customary) potentially persuasive, not
more
o
Courts beginning to use norms as persuasive, e.g. Baker with deporting mom with Canadian kids
“Protecting global health security through the IHR” Wilson et. al. 2008

International Health Regulations
o
o
Goal: to protect against international spread of epidemics

However, without unnecessary interference with international trade and travel

Key: early detection, early response; surveillance, timely reporting to WHO
Committee is the arbitrator

o
Sets regulations; consults experts; Canada is obligated to follow
Challenges

Developing countries lack resources for treatment let alone surveillance

Canada lacks national surveillance systems, mechanisms ensure timely domestic
reporting

If regulation shut off international trade, borders, country with interests unlikely to
report

E.g. mad cow disease, shoot, shovel and shut up
Influenza A (H1N1) & Pandemic Preparedness under the IHR, Gostin 2009

Alert system does not trigger any enforceable WHO powers
o
Countries not obligated to take action; problem with global governance
D. Selected Cases
Restrictions on Liberty

Application of Health Protection and Promotion Act – Ss.22, 35, 46

How does public health end up being managed in the province?


S.5 sets up boards of health in the province and mandatory health programs, services

The medical officer of health in each of these areas has particular responsibilities, has broad
powers with respect to communicable, reportable diseases, also virulent communicable diseases
CMOH orders: requires that premises be closed, required placarding of premises
Toronto v. Deakin (Ont Ct Justice, 2002) – shows us how the Health Prevention and
Promotion Act operates
Legal Governance of Health Care – Gilmour – 2013
80

Application by the CMOH for an order extending the period of attention and treatment that D was subject
to (he had TB); CMOH doesn’t have to obtain consent for treatment order (S.22.5.1); if person who is
subject to order doesn’t comply or isn’t likely to comply, then MOH can give directions to take action to
decrease or eliminate the risk; MOH can enlist agents of the board of health to take necessary steps by
court order

Medical officer of health is now in court seeking an order to extend the period in which Deakin can be
treated; Deakin brought Charter challenge, lost

Application: the court agrees with AG’s submissions that unless he is forced to undergo treatment, the
alternative is indefinite warehousing to protect the public

Ratio: court says breach of his S.7 rights, but justified; CMOH has statutory powers which can have
significant restrictions on liberty, but they must be exercised for public health purposes
Eliopoulos v. Ontario – potential government liability; standard tort analysis applied to
public health sector

Estate of man infected with West Nile virus sued provincial government for alleged negligence in failing to
prevent spread of disease; government brought motion seeking to get lawsuit dismissed, no cause of
action

Test: has to be plain, obvious and beyond doubt that the plaintiff could not succeed

Issue: does government owe private law duty of case to an individual or a class of individuals?

Reasoning: Court goes back to Anns test and Cooper v Hobart
1.
Think about whether there is relationship of sufficient proximity between plaintiff and defendant

Foreseeability alone is not enough to establish a prima facie duty of care; also has to be
proximity between parties; generally identify relationships of sufficient proximity using
categories, but list not closed; look at expectations of parties, reliance, representations
made; also consider policy at this stage, but just in relationship to specific plaintiff
2.
Are there policy reasons despite this proximity that tort liability should not be recognized?

Not sufficient proximity between plaintiff and government here


ON statutory duties to protect health of public are set out in the Health Protection and
Promotion Act; owed to general public, not individuals

Powers are to be exercised in general public interest; danger was not specific to
applicants; no specific relationship between individual with West Nile, Minister of Health

Not sufficient proximity: the implementation was left up to local boards and local public
health authorities, it was not implemented by the provincial government itself
Court also found claim would fail under second stage even if there was a prima facie duty of care
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81

Government needs to be able to balance competing demands free of fear that they will be sued
based on resource allocation decisions they make

Notes: complaint really about inadequate resources devoted to controlling West Nile; Court
makes institutional argument: appropriate reaction is not by means of lawsuit but by ballot box
Croplife Canada v. Toronto (On. C.A.) (2005)

Municipality has powers given to it by the Municipal Act; does this statue allow the city to limit pesticide
use? Court concludes that the city has this power

Municipal Act does give municipalities power to regulate things not specifically provided for in the act

SCC has taken a broad and purposive approach to interpreting municipal powers

When different levels of government legislating overlapping fields the SCC has favored what it calls
“cooperative view of federalism” where only restrictions is that the legislative provisions may not
expressly conflict, lower level government must not frustrate higher government purposes (paramountcy
principle)

Here, all the different pieces of legislation could be read together

Court refers to precautionary principle (where risk of harm, not scientific consensus, burden on those who
claim not harm): although PP mentioned, no decisive role; not be enough on its own to uphold the law