January 25, 2016

2015 health law roundup

Health Law

2015 saw a plethora of significant developments in health law and policy. From these developments, we selected four key issues:

1.      Physician-assisted death;
2.      Privacy and health records;
3.      Use of experts in medical malpractice; and
4.      Prime Minister Trudeau’s promises for health care.

1.      Physician-assisted death

On February 6, 2015, in Carter v Canada (Attorney General), 2015 SCC 5 (“Carter”), the Supreme Court of Canada declared the prohibition on physician-assisted death in the Criminal Code unconstitutional, for violating the s.7 Charter rights of competent adult persons who had grievous and irremediable medical conditions. The Court suspended the force of its declaration for 12 months, to allow the federal government to implement a new legislative regime addressing physician-assisted death.

Interestingly, in June 2014, prior to Carter, Quebec had adopted legislation permitting a terminally ill patient of sound mind to request and receive continuous palliative sedation leading to death. The law took effect on December 10, 2015, as scheduled, but was contested in the courts before it came into force.

Paul Saba, the head of the Quebec Coalition of Physicians for Social Justice, and Lisa D’Amico, a woman living with life-threatening disabilities, challenged the validity of the Quebec legislation prior to it taking effect, on the basis the Criminal Code prohibition against physician-assisted death was still in force. The Quebec Superior Court ruled that provincial law must be in line with federal laws, and since the Criminal Code prohibition against physician-assisted death was still in effect, Quebec’s law could not take effect. the Quebec government appealed the decision, however, and the Quebec Court of Appeal reversed the lower court’s decision. This means physician-assisted death is now permitted under Quebec provincial law.  Health and Social Services for the Quebec City region have reported that since the change in provincial law, one person has carried out an assisted suicide in Quebec City.

With respect to the rest of Canada and Carter, late last year, the new federal government asked the Supreme Court of Canada for a six-month extension to draft new laws on physician-assisted dying. On January 15, 2016, the Supreme Court of Canada gave the federal government a four-month extension to pass the required legislation. The Court did however exempt Quebec from the four-month extension of the suspension of its declaration of invalidity. Additionally, in a novel move that allowed individual exemptions to the suspension (of the declaration of invalidity), the Court also ruled that those who want to exercise their right to die with the help of a doctor can apply to a superior court in their home province for relief, on the basis of criteria that the Court specified in Carter.

Carter places significant responsibility on physicians, who are a key part of any physician-assisted dying. Doctors and their professional regulatory bodies must grapple with challenging questions of when and how a physician may legally assist their patients in dying. Some professional regulators, such as the physician colleges of British Columbia, Alberta, and Manitoba, have issued guidelines to guide registrants facing such requests. They address  availability of physician-assisted dying to mature minors, conscience-based objections, timing between and number of assessments of informed consent, the impact of a loss of competence after giving informed consent, and other important issues.

2.      Privacy and health records

2015 saw a proliferation of reports of patient privacy breached through health care workers improperly accessing health care records. For example:

  • a report in June 2015 addressed charges laid in relation to the theft of thousands of records from the Rouge Valley Health System, which were used to market RESPs to new mothers;
  • a report in July 2015 addressed the prosecution of three hospital workers for improperly looking into the medical records of Rob Ford;
  • a report in December 2015 that addressed 26 charges of privacy breaches at Alberta Children’s Hospital in Calgary, involving access to the records of a mother taken into medical custody after the suspicious death of her special-needs daughter – a case that made headlines, and was reported in the Calgary Sun.

Legal responses to such privacy breaches of health records included a variety civil law responses.

First, some health authorities have responded to breaches of patient privacy by punishing specific employees who breached privacy through suspensions and terminations. For example, in the Alberta matter described above, the employer fired one employee, and suspended 47 other employees without pay.

Secondly, in some cases, professional regulatory bodies stepped in and disciplined registrants who violated patient privacy. For example, in the College of Nurses of Ontario v Calvano, 2015 CanLII 89633 (ON CNO), a nurse who accessed the records of 338 patients without authorization received a reprimand, a three-month suspension, and limitations requiring that she complete remedial activities, inform employers of the discipline, and inform the College of all her nursing employers for a period of time.

Thirdly, government authorities have also chosen to prosecute privacy breaches. For example:

  • In the Rouge Valley Health System matter, criminal charges were laid against a registered nurse, Esther Cruz, who sold stolen maternity patient labels to a financial services sales person, as a source for sales leads. Additionally, Shaida Bandali, a hospital clerk, was charged under the Securities Act and pleaded guilty to charges relating to her selling maternity information for five years to a financial services company.
  • In the Rob Ford matter, three hospital workers were charged under the Ontario Personal Health Information Protection Act.

Fourth, some patients have pursued civil claims for privacy breaches. For example:

  • The Ontario Court of Appeal affirmed in Hopkins v. Kay, 2015 ONCA 112, that patients were not precluded by Ontario’s privacy legislation from bringing a class action (based on the tort of intrusion upon seclusion) relating to improperly-accessed patient records.
  • In July 2015, in Doe and Jones v. The Queen, 2015 FC 916, the Federal Court certified a class-action relating to Health Canada sending letters in November 2013 to 40,000 people in a medical marijuana access program, listing the program’s name on the envelope. The plaintiffs pleaded six causes of action: breach of contract and warranty, negligence, breach of confidence, intrusion upon seclusion, publicity given to public life, and breach of a Charter right to privacy.

Moving forward, we anticipate even more stringent responses to privacy breaches, especially from professional regulatory bodies, and in civil courts.

3.      Use of experts in medical malpractice

Medical malpractice cases often become a “battle of experts”. In such scenarios, a key consideration of the justice system is how to ensure that expert witnesses offer an unbiased scientific or technical opinion based upon their training and expertise, rather than act as “hired guns” who present unbalanced opinions unduly favouring the party that retains them.

In 2010, significant changes were made to the Ontario Rules of Civil Procedure relating to expert witnesses to foster unbiased expert evidence. After the changes, it was not entirely clear how much an expert and legal counsel retaining an expert can coordinate about an expert report. In Moore v. Getahun, 2015 ONCA 55, the Ontario Court of Appeal addressed this issue and confirmed that lawyers and experts can and often should work together to prepare expert reports, and counsel can review draft expert reports. This case is discussed below.

a)      Background and Facts

Moore v Getahun is a medical malpractice case in which the patient was suing the doctor for his negligence in applying a cast which resulted in permanent damage to the muscles in the patient’s arm.

During cross-examination, the defendant’s expert, Dr. Taylor, indicated he had sent a draft of one of his reports to the appellant’s counsel for review. Dr. Taylor also testified that he had produced his final report following an hour and a half conference call with counsel. Although, the plaintiff’s counsel did not pursue this issue, the trial judge expressed her concern over what had occurred.

b)      Trial decision

The trial judge in Moore v. Getahun, 2014 ONSC 237 had held that experts cannot consult with their appointing lawyers, and counsel cannot review draft expert reports. She also held that to ensure transparency and neutrality, full disclosure was required in writing of any changes an expert made to their report as a result of counsel’s corrections, suggestions, or clarifications. (This was seen as a significant departure from existing practice, and many lawyer groups intervened in the appeal hearing of the case to get more clarity on the law.)

On the larger issue, the trial judge determined that the doctor did not meet the standard of care and his failure to do so caused the patient harm.

c)      Court of Appeal Decision

The Ontario Court of Appeal overruled the trial court on the question of counsel review of expert reports. The Court of Appeal held that appointing experts can review draft expert reports. But the court reiterated that does not mean that a lawyer is permitted to influence the expert’s opinion, or attempt to influence an expert to give an opinion that the expert does not genuinely believe. In fact, it is the duty of an expert witness to provide opinion evidence that is fair, objective and non-partisan. However, the court confirmed that counsel reviewing the experts report does not necessarily detract from that.

On the larger issue, however, the ONCA held that that trial judge’s errors did not affect the outcome. As no substantial wrong or miscarriage of justice flowed from the errors, a new trial was not justified, and the trial judge’s decision was allowed to stand on the outcome.

4.      Prime Minister Trudeau’s promises for health care

Whereas, the first three sections of this post are focused on law, this section is policy-oriented and forward-looking. After entering office, Prime Minister Trudeau issued mandate letters to his cabinet ministers and released the mandate letters publicly, so that his government would be accountable. This post considers four interesting policy areas related to health:

a)      Aboriginal Peoples and Health;
b)      Refugee Healthcare;
c)      Medical Marijuana; and
d)     New Health Accord.

a)      Aboriginal Peoples and Health

The Prime Minister mandated the Minister of Indigenous and Northern Affairs to implement the recommendations of the Truth and Reconciliation Commission (“TRC”). Among other recommendations related to health, the TRC report calls upon the Canadian health-care system “to recognize the value of Aboriginal healing practices and use them in the treatment of Aboriginal patients in collaboration with Aboriginal healers and Elders where requested by Aboriginal patients.” It also calls upon governments to increase the number of Aboriginal health-care professionals, ensure the retention of Aboriginal health-care providers in Aboriginal communities, and to provide cultural competency training for all health-care professionals.

These recommendations raise interesting regulatory opportunities for health profession regulators. Regulators will have to work with Aboriginal peoples to determine how to most effectively implement these recommendations. One thing is certain, any changes to the regulatory system must reflect the wishes of Aboriginal peoples; else, the changes will be counterproductive to achieving reconciliation. For more information on professional regulation and traditional Aboriginal healing, please see our blog dated September 7, 2015 (see link: https://www.ngariss.com/professional-regulation-and-traditional-aboriginal-healing/).

b)      Refugee Healthcare

In 2012, under the previous federal government, Citizenship and Immigration Canada (CIC) implemented cuts to the Interim Federal Health Program (IFHP), severely curtailing access to health-care services for refugee claimants and refugees. In Canadian Doctors for Refugee Care v. Canada, 2014 FC 651, the Federal Court held that the cuts were cruel and unusual punishment under s. 12 of the Charter, and discriminatory on the basis of country of origin under section 15 of the Charter. The previous government had appealed the matter; however, in December 2015, the new government formally dropped the lawsuit, in line with the government’s commitment to reinstate the cuts that the previous government made to the IFHP.

c)      Medical Marijuana

The Prime Minister instructed the Ministers of Public Safety and Emergency Preparedness, Justice and Health to work together on the legalization and regulation of marijuana.

Under the current system, persons with prescriptions for marijuana can acquire marijuana from licensed producers, in accordance with the Marijuana for Medical Purposes Regulations. While the new system has not yet been proposed, it appears the goal is to move to a system where marijuana can be purchased without a prescription, however in a regulated manner, analogous to alcohol.

d)     New Health Accord

The 2004 Health Accord, which expired March 31st, 2014 after the previous federal government refused to renegotiate it, was an agreement between the provinces, territories and federal government.

The 2004 Health Accord was important in promoting national standards and providing provinces stable funding from the federal government after deep funding cuts that occurred in the 1990s. It also created a mechanism to facilitate implementation of the Canada Health Act provisions relating to public administration, universal access, comprehensive coverage, accessibility without extra charges or discrimination, and portability across provinces were implemented. The 2004 Health Accord also included a set of common goals around wait times, home care, prescription drugs, and team-based primary care.

There are many who argued that the expiry of the 2004 Health Accord left a significant gap in governments’ implementation of health law and policy in Canada. To fill that gap, and to provide renewed federal leadership in the health sector, the Prime Minister has instructed the Minister of Health to lead negotiations for a new multi-year health accord with provinces and territories, which addresses: home care services, digital health technology, prescription medication, access to mental health care.

Lisa C. Fong, Julia Hincks, and Siddharth Akali