Our round-up of top 2010 health law cases

1. WHEN THE EFFECT OF A DISEASE IS NOT AN “ACCIDENT”: The serious but natural impact (i.e., paralysis) of a disease (i.e., genital herpes) contracted through a natural process (e.g., unprotected sex) is not an “accident” as that term was used in an insurance policy. Although herpes and resulting paralysis was an unexpected outcome, it was not the result of an accident, but solely the result of a natural and ordinary process, e.g., sex. An “accident” does not include ailments proceeding from natural causes.  Co-operators Life Insurance Company v. Gibbens, 2009 SCC 59.

2. FUNDING FOR MEDICAL TESTS AND HUMAN RIGHTS: A male patient was not discriminated against by the Province through its refusing to pay for his cancer screening test (namely a protein specific antigen test), while paying for two types of cancer screening tests related to women’s reproductive systems (namely a mammogram and a Pap test). The patient failed to establish prima facie discrimination under s.8 of the Human Rights Code as gender was not a factor in the adverse treatment; as the reproductive systems of the sexes are different, the cancers related to those systems are necessarily restricted to each sex.  Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56.

3. ZERO TOLERANCE POLICY FOR TREATMENT OF SPOUSES AND PARTNERS: In the Leering case, the Ontario Court of Appeal upheld a zero tolerance policy for sexual relationships between particular professionals and patients. The case arose from a decision of the Discipline Committee of the College of Chiropractors of Ontario, in which the Committee panel had found a registrant guilty of sexual abuse for treating a woman as a patient despite having already been engaged in a personal and sexual relationship with her. The Divisional Court overturned this decision, on the grounds that the provision against sexual abuse was meant to guard against the sexualization of the doctor/patient relationship. However, the Court of Appeal held that the Divisional Court had erred in its application of the relevant test. According to the Court of Appeal, the only two questions to be asked in such cases are whether or not the person receiving treatment was a patient, and whether the sexual relationship and the doctor/patient relationship were concurrent. On this analysis, a professional who provides incidental treatment to a sexual partner does not necessarily enter into a doctor/patient relationship with that person; however, if a doctor/patient relationship is found to exist at the same time as the sexual relationship, this constitutes sexual abuse. Leering v. College of Chiropractors of Ontario, 2010 ONCA 87.

4. END OF LIFE INJUNCTIONS SHOULD BE AWARDED ACCORDING TO “BEST INTERESTS OF THE PATIENT”. In May v. Alberta Health Services (2010), the Alberta Court of Queen’s Bench set out the procedure for deciding to grant an injunction against removal of a ventilator from a terminally ill three-month-old child. Injunctions in this type of case are not meant to preserve the status quo pending further litigation, but instead will generally be determinative of the question at issue. For this reason, the usual test for injunctions should not be applied; instead, the court should consider whether such an injunction would be consistent with the “best interests of the patient”. Medical opinions are an important factor in this analysis, but are not necessarily determinative. The list of factors to be considered cannot be stated exhaustively, and will depend on the circumstances of the case at hand. May v. Alberta Health Services, 2010 ABQB 213.

5. COURTS ARE NOT THE VENUE TO DEBATE SCIENTIFIC LEGITIMACY OF HEALTH CARE TREATMENTS. In the Nette case, the Alberta Court of Queen’s Bench dismissed an application to certify a class action for a group of plaintiffs alleging that they had suffered injury as the result of a specific form of spinal manipulation. The plaintiffs were unable to make out a cause of action against the College of Chiropractors, as the College’s enabling statute did not impose a private law duty of care and no private law duty existed in the common law. In addition, the plaintiffs could not proceed against the individual physician on the basis the treatment provided was not scientifically sound. Individual physicians cannot be held liable for treatment that meets accepted standards of practice, and in particular, the courts are not an appropriate venue to settle disputes regarding the scientific legitimacy of a particular forms of treatment. Nette v. Stiles, 2010 ABQB 14.

6. MISREPRESENTATION CONCERNING SEXUAL ORIENTATION ON BLOOD DONOR FORM: The  Canadian Blood Services Donor screening form required prospective donors to disclose if they were homosexual men with a particular sexual history.  An affirmative disclosure disqualified them from giving blood.  The policy of disqualification was justified on the basis that homosexual men with a particular sexual history  had a higher likelihood or carrying HIV/AIDS or other sexually transmitted diseases.  The purpose of the policy was to reduce the risk of transmitting tainted blood through transfusions. Blood services alleged that the Defendant Freeman misrepresented his history of sexual relations on the donor form.  Freeman counter-claimed that the disqualification was in breach of his equality right under s.15 of the Charter.  The Court found that the Defendant had committed a negligent misrepresentation, and there was no breach of his Charter rights given Canadian Blood Services was not a government entity.  The Court further reasoned that even if Blood Services was a government entity, there is no right to give blood and therefore the Charter was not engaged. The Court awarded $10,000 to Blood Services for the Freeman’s misrepresentation. Canadian Blood Services v. Freeman, [2010] O.J. No. 3811 (O.C.J.).

7. SUPERVISED DRUG INJECTION SITE IS CONSTITUTIONALLY PROTECTED: InSite was a supervised drug injection site in Vancouver’s Downtown Eastside that plays an important role in the province’s harm reduction strategy with respect to drug addiction.  The PHS case arose over the federal government’s decision to withdraw an exception granted under s. 56 of the Controlled Drugs and Substances Act which made ss. 4(1) and 5(1) of that Act inoperative in respect of InSite. The Court found that, even without an exception granted under s. 56, the relevant sections should not apply to InSite for two reasons. First, the provinces have the exclusive right to control the provision of health services in Canada; this right is protected from the incidental effects of federal legislation by the doctrine of interjurisdictional immunity. For this reason, ss. 4(1) and 5(1) of the federal Act do not apply to provincial health care undertakings, including supervised injection sites. Secondly, applying the Act to deny access to such sites would also violate the s. 7 Charter rights of those affected. The evidence established that services provided by the site were vital to the health care of the community at risk, and there would be no ameliorating benefit to closing the facilities. Therefore, the criminal provisions were overbroad in this context and could not be saved by s. 1 of the Charter. PHS Community Services Society v. Canada (Attorney General, [2010] B.C.J. No. 57.

8. RAW MILK NOT FOR HUMAN CONSUMPTION: The year 2010 saw an increase in the public’s  interest in growing their foodstuffs and going “organic”.  The movement encompassed a broad range of activities from vegetable gardens grown on the side of buildings, chickens raised in the backyard of City homes, the sale of mother’s milk  ice-cream, and in British Columbia, an attempt by one organization to operate a cow share program to produce unpasteurized milk.  In the Jongerden case, Home on the Range was ordered to stop selling raw milk for human consumption by the Supreme Court.  In an effort to meet the order, Home on the Range placed a sticker on their milk jars setting out that the milk was “Not Fit for Human Consumption” and placed a copy of the injunction order on the communal fridge .  The Health Authority applied for an order that Home on the Range was in contempt of the Court’s order.   The Court found Home on the Range was operating their cow share program as they had operated it before and was aware that consumers might be drinking the raw milk despite the order.  The Court found that Home on the Range had wilfully disobeyed the Court order and was in contempt . Fraser Health Authority v. Jongerden (c.o.b. Home of the Range), 2010 BCSC 355, [2010] B.C.J. No. 480.

9. MUNICIPALITIES OWE A DUTY OF CARE TO ASSISTED LIVING FACILITY RESIDENTS: In the St. Elizabeth case, the operator of an assisted living facility appealed from a decision dismissing its claim for abuse of public office against the defendant municipality. The dispute arose from an investigation by the defendants into complaints of bylaw violations by the plaintiffs in relation to the care of residents in the facility. The Court of Appeal found that the plaintiff’s case lacked an “air of reality” and dismissed the appeal. Notably, the Court found the defendant’s investigation was warranted due in part to the fact the municipality owed a duty of care to the facility’s residents.  As this finding was incidental to the disposition, however, the decision is not clear as to what sort of positive obligations might arise from this duty. St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280.

10. HEALTH CANADA HAS NO DUTY OF CARE TO PUBLIC IN LICENSING PHARMACEUTICALS: The Plaintiffs commenced a class action against three pharmaceutical companies for damages suffered from the using the drug, Dermalive.  The Plaintiffs brought a third party notice against the federal government for breach of a duty of care to the public when the government licensed Dermalive under the Food and Drug Act and the Medical Devices Regulations.  The Court found the licensing powers by Health Canada fall within a recognized category of immunity with respect to a duty of care, and Health Canada therefore owed no duty of care in its licensing of Dermalive. Logan v. Dermatech, Intradermal Distributions Inc., [2010] BCJ No. 639.