ch. i - preliminary issues

7/21/2019 Ch. I - Preliminary Issues

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HEALTH CARE LAW:

Law 3101 & Health Sciences 3101WINTER TERM, 2015

R S!l!"!n, #$!%ess!$The ac'lt( !% Law

Weste$n )ni*e$sit(


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Cha+te$ I: #$eli"ina$( Iss'es

*e$*iew

The Changing Legal Environment.

Canada Health Act.

Common Criminal Code Offences.

Civil Law Process.

Selected Tort Actions.

Basic Concepts of Liability.

elevant Legislation.

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#a$t 1: The Chan-in- Le-al En*i$!n"ent

!ore litigio"s society. All professionals "nder greater legal scr"tiny. American concept.

!ore s"its against health# co"nselling and care

practitioners# as well as all other professionals. $% increase in s"its &'() to *+&,. -% increase in damages / costs.

Law playing greater role# partic"larly for administrators.

0ealth professional as party# witness# compliance officer#and cons"ltant.

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act!$s E.+an/in- the R!le !% Law

1irst# shift from paternalistic to rights2based notions ofhealth care. 3ss"es increasingly framed in terms of therespective legal rights of the parties# rather than the bestinterests of the patient.

Second# recognition that all competent patients can ma4etheir own health# co"nselling and care decisions# despitethe wishes of their ne%t2of24in.

Third# cycle of apathy# crisis and panic. Child ab"se5 native residential school scandal. 6iolence against women5 Bernardo. Privacy.

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1o"rth# flood of comple%# piecemeal legislation. 7o attempt to rationali8e# consolidate or streamline.

Legislation overlaps and d"plicates. 1ifth# e%pansion of the health r"bric.

Si%th# politici8ing of health care5 wait times9 doctor fees9

hospital closings9 and lobbying for ca"ses. Seventh# increasing fiscal restraint. As federal share of health care costs decreased# the

provincial share increased# limiting f"nding for all otherprovincial services.

Provincial governments are "nder tremendo"s press"re tostreamline health care services and red"ce costs.

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The E.+ectati!ns !% the C!'$ts

Canada is not California north.

7ot e%pected to 4now the law# or be omniscient# an ins"reror always right.

Co"rts generally s"pportive of health professionals. Co"rts e%pect health professionals to act5 reasonably9 and in good faith.

The c"rrent law is wholly compatible with the professionaland ethical standards of health# co"nselling and care

professionals.

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#a$t 2: Canada Health Act

:oes not give people a right to p"blicly2f"nded healthcare.

Establishes conditions for a f"ll federal cash contrib"tion.

Legislative basis for the Federal-Provincial Health

Accord# which e%pired in *+&$.

;overns


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1ive pillars of medicare5 p"blic administration9 comprehensiveness9 "niversality9 portability9 and accessibility.

Prohibits the provincial health ins"rance plans frompaying for ins"red services that are s"b@ect to


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#a$t 3: C!""!n C$i"inal %%ences, The Ci*ilLaw #$!cess an/ Selecte/ T!$t Acti!ns

a C!""!n Criminal Code %%ences

Assa"lt5 intentionally applying force to another witho"t consent9 or attempting or threatening to apply force to another# if one

has or apparently has the present ability to carry o"t thethreat.

Consent obtained by "se or threat of force# fra"d ore%ercise of a"thority provides no defence.

Assa"lt with a weapon or ca"sing bodily harm. Assa"lt while carrying# threatening to "se# or "sing aweapon >or an imitation weapon?.

Assa"lt ca"sing bodily harm re"ires a


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Aggravated assa"lt >wo"nding# maiming# disfig"ring# orendangering?.

Se%"al assa"lt9 se%"al assa"lt with a weapon# whilethreatening a third party or ca"sing bodily harm9 andaggravated se%"al assa"lt. Se%"al assa"lts are assa"lts of a se%"al nat"re.

Consent of person "nder &) provides no defence to se%"alassa"lt "nless the complainant is5 &* or &, and the acc"sed is less than * years older9 or &$ or & and the acc"sed is less than years older.

Se%"al e%ploitation. Any se%"al contact with a &) or &(2year2old by a person in

a relationship of tr"st or a"thority. R. v. Colas.

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Providing necessaries of life.

Parents or g"ardians fail"re to provide necessaries of lifewitho"t a lawf"l e%c"se to their children who are "nder &)#if the children are destit"te or if the fail"re endangers theirlife# or has or is li4ely to permanently endanger their health.

1ail"re to provide necessaries of life to those "nder yo"r

charge witho"t lawf"l e%c"se# if they cannot withdraw andprovide for themselves# and fail"re endangers their life orhas or is li4ely to permanently endanger their health.

R. v. J.(S.).

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Co"nselling# aiding or abetting s"icide.

Co"nselling# aiding or abetting anyone to commit s"icide#whether or not it is attempted or ens"ed.>Criminal Code#s.*$&?

A persons consent to having death inflicted on him or

herself provides no defence to criminal liability. >CriminalCode# s. &$?

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Ci*il Law #$!cess

Parties can settle at any time and on any terms they choose.

The process is designed to enco"rage settlements. Statement of claim5 sets o"t the plaintiffs case against the defendant. filed with a co"rt cler4 and m"st be served on the

defendant. Statement of defence5 sets o"t the defendants response to the statement of claim.

E%amination for discovery5 pre2trial legal proceeding at which parties e%amine each

others witnesses and doc"ments. :iscoveries permit co"nsel to assess the strength of the

opposing partys case# and minimi8e s"rprise at trial.

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Trial.

The parties present evidence and arg"ments in co"rt. The@"dge or @"ry considers the evidence# iss"es a decision anddetermines what remedy# if any# is to be given.

A damage award# the most common remedy# only gives theplaintiff a legal right to see4 recovery and not the act"al

money awarded.

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c Selecte/ T!$t Acti!ns

Battery.

Battery is broadly defined as the intentional bringingabo"t of harmf"l or socially offensive physical contactwith the person of another.

Any nonconsens"al physical contact is viewed asoffensive# e%cept for


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Assa"lt.

Assa"lt is defined as the intentional creation in the mindof another of a reasonable apprehension of imminentphysical contact.

The plaintiff need not fear for his or her physical safety.

The defendant need not have act"al ability or intent tocarry o"t the threat# provided the plaintiff reasonablybelieved that the threat was going to be carried o"t >e.".defendant with "nloaded g"n threatens to shoot theplaintiff?.

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/ asic C!nce+ts !% Liailit(

As a general r"le# individ"als are only held legally respon2sible for their own behavio"r.

3ndivid"al liability. 0ealth professionals are independent decision ma4ers who

are acco"ntable for the decisions that they ma4e. 3t is no defence to civil s"it or prosec"tion to arg"e


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6icario"s liability.

Can arise in several sit"ations# the most important being

employerDemployee relationships. Traditionally# employers were only held vicario"sly

liable for civil wrongs that employees committed in the


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T$a/iti!nall(, e"+l!(e$s we$e n!t *ica$i!'sl( liale %!$thei$ e"+l!(ees4 intenti!nal c$i"inal acts, eca'se

s'ch c!n/'ct %ell !'tsi/e the sc!+e !% e"+l!("ent The principles of vicario"s liability were e%panded

following the p"blic scandals in the &''+s over thewidespread ab"se of children in residential schools andother facilities.

3nitially# the S"preme Co"rt defined vicario"s liability interms of whether the employer p"t the employee in aposition of tr"st# control or power over the plaintiff thatincreased the li4elihood of se%"alDphysical ab"se.

The c"rrent vicario"s liability test entails two s"b2iss"es5 1irst# vicario"s liability is imposed if the e%isting casesclearly establish its applicability in the circ"mstances>e.". traditional employerDemployee relationships?.

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Second# a party may be held vicario"sly liable if5 the party is in a


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#a$t : Rele*ant Le-islati!n

Child and Famil# Services Actgoverns5

the legal principles applicable to vario"s servicesprovided to children9

the age of consent for those services9 and the reporting of children in need of protection.

Coroners Act governs5 provincial coroners responsibilities9 the d"ty of health professionals and instit"tions to report

specified categories of deaths to the coroner9 and

the d"ty that everyone has to report "ne%pected ands"spicio"s deaths to the police or a coroner >e.".homicides# s"icides and deaths res"lting frommisadvent"re or negligence?.

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Health Protection and Promotion Act5

governs boards of health and their broad p"blic healthresponsibilities# incl"ding5 monitoring comm"nicable diseases9 overseeing sanitation and imm"ni8ation programs9 providing p"blic health ed"cation9 and

inspecting resta"rants# food processing plants and otherfacilities.

also governs the obligation of health facilities andreg"lated health professionals to report comm"nicable#reportable and vir"lent diseases to the medical officer ofhealth.

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Trillium Git o $ie %etwor& Act5 governs inter-vivos and post2mortem donations of organs

and tiss"es# and post2mortem donations of bodies fortransplant# ed"cation and scientific p"rposes.

'ental Health Act5 governs administration of psychiatric hospitals# and the

criteria and proced"res for vol"ntary# informal andinvol"ntary admission# and comm"nity treatment orders.

Pulic Hositals Act5 governs the administration of p"blic hospitals.

provides for f"nding.

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$imitations Act* +,,+5

creates a standard limitation period of two years for almostall civil actions.

A limitation period only begins to r"n when5 the plaintiff 4new or o"ght to have 4nown the facts

"pon which the wrongf"l act was based9

"nderstood the harms that the wrong ca"sed9 and was physically# mentally and emotionally able to bring

an action.

Postponing the onset of the limitation period has importantimplications for record 4eeping# partic"larly in the case ofchildren.

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Cha+te$ I: Reca+

Canada Health Act. 1ive pillars of medicare.

Common criminal offences5 assa"lt9 se%"al assa"lt9 se%"ale%ploitation9 providing necessaries of life9 and co"nselling# aiding

or abetting s"icide.

Civil law process.

Tort actions5 assa"lt9 and battery.

3ndivid"al and vicario"s liability.

elevant legislation.

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ch. i - preliminary issues

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