Introduction to
Health Law
B. Barrowman
September 2002
Outline
• what is health law?
• forces shaping evolution of Canadian health
law in the 21st century
• health law and ethics
• overview of Canadian legal system,
terminology, etc.
• some areas of health law we will cover in
the curriculum
Health Law
• field of legal practice, scholarship and law
reform relating to the delivery of health care
• deals with health care delivery at macro and
micro level
• rapidly expanding and dynamic field scientific, social, economic, legal,
philosophical and political influences
Why Study Health Law in
Medical School?
• all aspects of the practice of medicine, and
healthcare more broadly, are affected by the
law
• important for physicians to have an
awareness of how the law affects them and
their patients
• Medical Council of Canada expects
competency in this area
Influences on the Development of
Health Law in Canada
• health care reform movement (re
organization and financing of health care
system)
• increasing litigation and new types of
litigation
– e.g. class action suits re medical devices
– wrongful life lawsuits
Influences on the Development of
Health Law in Canada
• advances in science and technology
– e.g. genetic research
– reproductive technologies
• advances in information technology
– computerized patient information
– vast amount of health info on the internet
• evolution of field of bioethics, increasing
influence of new perspectives
Law and Ethics
• law influenced by ethics and to some extent the
converse is true
• obviously important to comply with the law, but
what the law says may not be the ultimate answer
to a moral question
• many ethical principles re medical practice now
codified - tends to blur the distinction (rules-based
vs. virtue ethics)
• some similarities in reasoning - clarifying facts,
principles and their application
Overview of the Canadian Legal
System
•
•
•
•
where does the law come from?
areas of law
Canadian constitutional framework
the court system
Sources of Law
• Legislation
– statutes
– regulations
– federal and provincial
• Judicial Decisions
– sometimes referred to as the “common law”
– precedents
Nature of the Law
• degree of uncertainty
• role of judicial interpretation
• constantly evolving
Divisions of Law
• Public Law
– disputes between individual and state
– e.g. criminal law, administrative law,
constitutional law
• Private Law
– sometimes referred to as “civil law”
– disputes between individuals
– e.g. torts, contracts, property law
Canadian Constitutional
Framework
• Constitution Act 1867 (British North
America Act) - division of powers between
federal and provincial governments
• Charter of Rights and Freedoms 1982 legislation and actions of government can
be challenged, based on the rights granted
in the Charter
Structure of the Courts
• superior provincial court --> provincial
Court of Appeal --> Supreme Court of
Canada
• (federal courts)
• (inferior courts)
• administrative tribunals, e.g. NF Medical
Board
Health Law Topics
• Canada’s health care system
– structure, funding, supply of and access to
health services
•
•
•
•
regulation of health professionals e.g. MD’s
medical negligence
consent
confidentiality and disclosure of health
information
Health Law Topics
• medical care of minors
• medical care of patients with mental
disabilities
• abortion
• regulation of reproductive technologies
• genetics and the law
• end of life decision making
• medical research
1. Structure and Dynamics of
Canadian Health Care System
• complex legal framework
• areas of federal and provincial jurisdiction
• Canada Health Act - establishes criteria that
provincial health plans are supposed to meet
• provinces responsible for administration of
health care - hospitals, insurance for and
supply of services
• the future?
2. Regulation of the
Medical Profession
• provincial responsibility
• “self-regulating” professions
• body created by statute in each province
– e.g. NF Medical Board
– standards for licensure
– deals with allegations of incompetence,
incapacity or misconduct
– can generate its own policies, guidelines
3. Civil Liability
• a.k.a. negligence, “malpractice”, “getting
sued”
• law in this area mostly “judge-made”
• informed consent
• standard of care
4. Complex Emerging Issues
– e.g. reproductive technologies
– electronic health care records - privacy issues
– cost constraints - impact on insured services
and on individual care
• complex issues affected by several sources
and divisions of law (courts, legislatures,
federal, provincial, criminal, civil, Charter
of Rights) as well as ethics, public policy