December 5, 2019

CBA Health Law Presentation

Health Law
Professional Regulation

On October 23, 2019, Lisa C. Fong and Lauren Riva presented to the CBABC Health Law section on a two-year review of health law issues in Canada. This is the substance of the presentation

The biggest challenge in preparing this presentation was the large number of prominent health law topics that occurred in the last two years. Lisa and Lauren decided to try to give a broad overview of cases, events, and government policy in the health law area. The areas they covered in the presentation were the following:

  1. Opioid crisis;
  2. Medical-assistance in dying (MAiD);
  3. Indigenous health;
  4. Privacy;
  5. Private vs. Public health care;
  6. Consent to treatment;
  7. Professional regulation; and
  8. Mental capacity.

1. Opioid crisis

The opioid crisis refers to extensive overuse of opioid drugs. Opioids are a family of drugs which relieve pain by acting on opioid receptors. Examples include morphine, codeine, oxycodone and fentanyl.

The overuse of opioids stems from both medical prescriptions (e.g., for pain relief), and synthetic opioids (like fentanyl) from illegal sources.

The United States saw 70,000 drug overdose deaths in 2018. In the same year, Canada saw 4,588 deaths, meaning 1 life lost every 2 hours relating to opioids.

In January and March 2019, Canada saw 1,082 deaths relating to opioids.

In 2019, 82% of accidental deaths in Canada involved fentanyl or fentanyl analogues. In BC, 90% of deaths involved fentanyl or an analogue. 76% of deaths were of males. Western Canada is the most impacted region of the country (in per capita terms).

On Monday, Oct. 21, 2019, in Ohio, three drug distributors (AmerisourceBergen, Cardinal Health and McKesson) and one generic-drug producer (Teva) settled their role in a federal lawsuit by two Ohio counties (just before a nine-week trial) for $260 million (USD). That litigation was part of a consolidated lawsuit involving more than 2,000 pending lawsuits in the United States.

One of the defendants in the national litigation was Purdue Pharma, alleged to have directed sales representatives to push doctors to overprescribe oxycontin. In September, Purdue Pharma reached a settlement in principle with plaintiffs, where it would file for bankruptcy protection, pay $3 billion, and continue to pay from future revenues from OxyContin sales (estimated by some to amount to a total settlement of $10-12 billion). Many attorneys general and local governments object to the settlement, with concerns about the actual value of the deal, lack of admissions of wrongdoing, lack of document disclosure, and the problem of continued profit from sales of opioids.

On August 29, 2018, BC sued 40 companies that manufacture, wholesale or distribute opioids, to recoup health care costs from 1996 to present, based on a host of alleged misrepresentations by the defendant companies. (HMTQ-BC v. Apotex Inc. and others, B.C.S.C. Registry No. S189395 (Vancouver)).

The action is a proposed class-action lawsuit, on behalf of all federal, provincial and territorial governments, and agencies that have paid health care costs related to opioids. Participants in a national working group include Ontario, Quebec, Newfoundland and Labrador, Nova Scotia, and New Brunswick. On October 15, 2019 (last week), Alberta announced that it is joining the lawsuit.

Along with filing suit, BC passed the Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, ch. 35, in October 31, 2018. It created a new statutory tort of opioid-related wrongs, and establishes a direct cause of action by government to recover health-care-costs of individuals with opioid addictions.

It provides for presumptions with respect to use and causation of harm (s. 3(2)), and shifts the burden to defendants to prove their activities did not increase opioid use, and that their products did not cause harm. In B.C.’s tobacco case (2011 SCC 42), the SCC ruled that it is not unconstitutional to introduce legislation to make it easier for their claim to be heard, and to circumvent some of the normal procedural rules that would apply to a civil case.

2. Medical-assistance in dying

Medically assisted dying or MAiD became legal in 2016 as a result of the SCC’s decision in Carter. Since our firm’s last Health Law update in 2017, there have been several important updates on the MAiD front.[1]

A. Government reports

By way of background, the Trudeau government commissioned expert panels from the Canadian Council of Academics to undertake an independent review of specific, complex requests for MAiD, which involved advanced directives, requests by “mature minors” and those requesting access to MAiD where mental health was the only underlying medical condition.

These three final reports were submitted to parliament in December 2018. The Reports were a summary of the evidence compiled from the review and do not make recommendations.[2]

The federal government also released its Fourth and Final Interim Report on MAID in April 2019. The Report provides information about how many people were provided MAiD overs a 10-month period from January 1, 2018 to October 31, 2018, (approx. 2,614)and total since 2016 at 6,749. The numbers are pretty consistent with previous reports and other states allowing MAiD.[3]

Federal Regulations for the Monitoring of Medical Assistance in Dying came into effect on November 1, 2018. As a result annual reports will be produced starting in the spring of 2020 using the more robust MAID data (as required by the Regulations). This information will provide more insight into how and when MAiD is administered and why requests may go unfulfilled. This could guide any future legislative or policy changes.

B. Truchon and Gladu v. Canada

Future changes are coming as a result of the decision by Quebec’s superior court on September 11, 2019, which struck down portions of the federal and Quebec legislation on MAiD in Truchon and Gladu v. Canada, 2019 QCCS 3792 in a 177-page (French) decision.

The plaintiffs in the case, Nicole Gladu and Jean Truchon, are two Montrealers who despite serious, degenerative illnesses. However, neither met the provincial or federal requirements to qualify MAiD because their conditions were not terminal and their deaths deaths were not considered “imminent” or “reasonably foreseeable.”

Quebec’s law, the End of Life Care Act, required under s.26 that those requesting MaiD were “at the end of life.” The federal law required that natural death be “reasonably foreseeable.”

The Court found both requirements to be unconstitutional and invalidated the provisions in both acts requiring natural death to be imminent or reasonably foreseeable.

The Court found the federal law in violation of s. 7 and 15 of the Charter, and Quebec’s law to violate s. 15 because they do not permit assistance in dying for Canadians who are suffering with no immediate or specifically predictable end in sight.

Justice Baudouin noted that Carter did not impose a temporal restriction or require that suffering patients would have to be near-death in order to qualify for medically-assisted death. She suspended the declaration of invalidity for six months. Neither the government of Quebec nor Canada has appealed the decision.

The Lamb decision

This case challenged the interpretation of the “reasonable foreseeability” of natural death as a requirement for obtaining physician-assisted suicide. This case was settled just before trial on September 18, 2019.

The BCCLA and Ms. Julia Lamb filed the lawsuit in 2016. It challenged the criteria imposed under the legislation that required the natural death for the applicants to be “reasonably foreseeable”, as this was not a requirement imposed by the SCC in Carter, and meant that Ms. Lamb, who suffers from spinal muscular atrophy would not qualify.

However, the BCCLA sought an adjournment to the case after Canada’s expert witness provided evidence that Ms. Lamb would now qualify for MAiD. Her evidence was uncontested.

The expert, Dr. Li, stated that Ms. Lamb would not have qualified when the legislation came into effect. However, she found that due to the evolution of interpretation of “reasonably foreseeable” by physicians and practitioners, she felt that it was clear Ms. Lamb would now qualify for MAiD if she applied.

Ms. Li provided evidence that medical practitioners have now reached a “clear understanding that the law does not require a person to be near death” and that to refuse care that would lead to death would be considered “reasonably forseeable.”

Dr. Li provided evidence that initially medical practitioners applied the law very narrowly and where the patient had a short life expectancy. However, Dr. Li stated that if Ms. Lamb requested MAID now, she would be eligible because she is at risk for developing a chest infection if she is refused care; she would meet the requirement under Canada’s law that “her natural death has become reasonably foreseeable.”

Although not decided, this case provides important insight into the difficulty that the ambiguity of these provisions has caused for the public, legal and medical practitioners.

3. Indigenous health

Indigenous health issues in Canada are numerous, including mental health, housing health, food security, Indigenous health practices, and access to medical services. However, in this presentation, we have chosen to follow up on the two health law issues which we presented on in 2017.

A. Jordan’s principle

Jordan’s Principle provides that where a government service is available to all other children, but a jurisdictional dispute regarding services to a First Nations child arises between Canada, a province, a territory, or between government departments, the government department of first contact pays for the service and can seek reimbursement from the other government or department after the child has received the service. It is a child-first principle meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them.

Jordan’s Principle is named in memory of Jordan River Anderson, a First Nations child from the Norway House Cree Nation in Manitoba. Jordan had substantial medical needs from the time of his birth. As a result of a jurisdictional dispute between the Canadian and Manitoba governments over which party was responsible for his homecare costs, Jordan was unnecessarily confined to hospitals for much of his life. Jordan died at age 5 without ever having lived in his family home.

In 2016, the Canadian Human Rights Tribunal (the “Tribunal”) found that Canada discriminated against First Nations children on reserve by providing inequitable and insufficient funding for child welfare services. (As a result, First Nations children and families living on reserve were being denied equal child and family services.) The Tribunal also found that jurisdictional disputes between Federal and Provincial authorities had a negative impact on the well-being of First Nations children and ordered the federal government to immediately stop applying a limited and discriminatory definition of Jordan’s Principle, and to immediately take measures to implement the full meaning and scope of the principle.

The Tribunal deferred its ruling on compensation into three phases: requests for immediate reforms; mid- to long-term reforms; and then compensation.

The Tribunal had to issue 10 subsequent orders to ensure Canada’s compliance.

With respect to compensation, Canada argued that the Tribunal was the wrong forum for compensation to be heard, and also a lack of evidence of harm to individual children before the Tribunal.

On September 6, 2019, the Canadian Human Rights Tribunal decided (2019 CHRT 39) to award the statutory maximum of $40,000 to each of a variety of First Nations persons, including (among others) every First Nation child taken into out-of-home care, and to each parent or grandparent caring for each child, from 2006, to such time the panel may determine that Canada is in full compliance with the tribunal’s decision of Jan. 26, 2016. The Tribunal noted that this could affect 44,000 to 54,000 people. The Tribunal decided that First Nations children suffered egregious and compound harm as a result of discrimination, such as by being removed from their extended families and communities (at para. 149).

On October 4, 2019, Canada filed for judicial review, and filed a motion for a stay of order. As of Oct. 7, the Federal Court ordered that the application continue as a specially-managed proceeding. (Update: The Federal Court has since rejected Canada’s application for a stay of the payment order pending judicial review.)

B. Water crisis

A continuing key health care issue for First Nations is access to clean water. This continues to be an issue for First Nations across the country.

In 2015, the federal government committed to eliminating all long-term water advisories on First Nations by March 2021. (Long-term advisories are advisories that have been in place for over a year.) Budget 2016 provided $1.8 billion in funding over five years towards water infrastructure. This has been supplemented by additional sums in later years (2017-2019). However, the Parliamentary Budget Officer’s report on actual costs has estimated that Canada is providing about 30 percent less than what is needed for capital expenditures, and only half of what is required for ongoing operations and maintenance.

At the start of 2016, 105 long-term advisories were in place. As of October 4, 2019, 57 long-term advisories remain in place. Critics have noted, however, that reducing long-term boil advisories does not address the issues that led to them, or guarantee long-term access to clean drinking water.

Throughout 2019, there continue to be First Nations across Canada declaring water crises, including on July 7, when Attawapiskat First Nation (in northern Ontario) declared a state of emergency over dangerous levels of disinfection byproducts (trihalomethanes) arising from chlorination. Residents were told to limit showers and not use the water from their pipes to wash food. A few days later, Eabametoong First Nation declared the same emergency. Eabametoong First Nation has had a boil water advisory for 18 years. Water drawn from household taps contain a noticeable foul smell and test.

Some nations have commenced litigation. On August 15, 2019, the Okanagan Indian Band brought suit against Canada in Federal Court (T-1328-19) alleging, among other things, Canada’s breach of fiduciary duty, and breaches of various Charter rights (ss. 7 and 15), and breach of s. 36(1)(c) of the Constitution Act, 1982 (respecting essential public services of reasonable quality to all Canadians) in relation to its creating and managing reserves, and creating and sustaining unsafe drinking water conditions. The Band seeks to remedy unsafe drinking water conditions, but also seek to enhance their own Indigenous governance powers through new regulations.

Furthermore, on October 15, 2019, a group of Alberta First Nations (Ermineskin Cree Nation, Sucker Creek First Nation, Tsuu T’ina Nation and Blood Tribe) announced they were restarting litigation against that they began in Federal Court in 2014, respecting safe drinking water. They allege the same breaches by Canada as alleged by the Okanagan Indian Band. They also seek remedies that include increased governance, resources and powers in the hands of the First Nations.

4. Privacy

A. Notable case law

A notable case with respect to privacy for health practitioners is College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354.

In this case, a physician and registrant of the BC College requested information that was obtained by the College under one of its quality assurance programs, the physician practice enhancement program (or PPEP). The registrant requested access to information about their performance which was given by colleagues, who were told that they would remain anonymous, to a third party organisation that collected the information on behalf of the College’s QA program.

In the decision, the BC Supreme Court confirmed that where a health professions college collects information about a registrant for “quality assurance” purposes, and the information includes feedback about the registrant’s performance from colleagues and patients, the information is not accessible by the registrant under freedom of information law.

The Court quashed an order of the Information and Privacy Commissioner (“IPC”) that would have required the College to disclose the information to the registrant.

The IPC has appealed this decision to the BC Court of Appeal.

The Office of the Information and Privacy Commissioner also recently released a review which found that the privacy protections were lacking at BC medical clinics.

The review, which looked at 22 BC medical clinics, each with 5 or more licensed physicians on staff, looked at whether clinics were meeting their obligations under Personal Information Protection Act (or PIPA).

The review found gaps in privacy management programs at several clinics, including the absence of a designated privacy officer, a lack of funding and resources for privacy, and a failure to ensure that privacy practices keep up with technological advances.

B. Amendments to FIPPA

There are proposed amendments to the Freedom of Information and Protection of Privacy Act (FIPPA). The proposed amendment (Bill 35 – Miscellaneous Statutes Amendment Act (No. 2), 2019) seeks to amend s. 33.1 of FIPPA. Section 33.1 of FIPPA addresses addresses disclosure of personal information outside of Canada.

The proposed amendments would expand the authority of public bodies to disclose personal information outside of Canada in limited circumstances. The purpose of the amendments are to allow the use of email, spam filtering, and other technological processes that include specific functions that require temporary processing and storage of information outside of Canada, notably through the use of cloud-based services.

5. Private vs. Public health care

Cambie Surgeries: A trial has been underway since 2016 concerning the legality of restrictions under the Medicare system, which provides public funding or all medically necessary hospital and physician services. That case is the Cambie Surgeries case: Cambie Surgeries Corporation v. Attorney General of British Columbia, B.C.S.C. File No. S090663 (Vancouver).

Under BC legislation (the Medicare Protection Act, R.S.B.C. 1996, s. 286, s. 17), physicians who are enrolled in (and being paid by) the Medical Services Plan (MSP) are prohibited from charging BC residents fees for medically necessary hospital and physician services.

These restrictions were challenged by plaintiffs, including Cambie Surgeries Corporation, as infringing s. 7 of the Charter. Their position in brief is that the publicly-funded system compels waiting for patients who have a right to obtain services more quickly by paying privately. Furthermore, physicians who are enrolled in MSP should be allowed to “extra-bill” patients, as already allowed for physicians who are not enrolled in MSP.

The opposing position of BC is that priority of care should be based on need, and private payment would result in priority for those who can pay. Allowing physicians to participate in both the MSP system and in privately-funded care would allow physicians to prefer private-paying patients, shift physicians from public-pay to private-pay, and likely increase the wait times of patients who cannot afford to pay.

In April 2018, the BC government announced that it would be bringing into force provisions of the Medicare Protection Amendment Act (of 2003 – Bill 92) not previously brought in force, to enable further action against extra-billing, such as making an offence of extra-billing for services insured under the Medicare Protection Act, and allowing for fines of up to $20,000 per occurrence. Other measures included ensuring that beneficiaries are not liable to pay extra-billing charges, and obliging practitioners and others to refund extra-billed amounts paid.

Consequently, the plaintiffs sought an interim injunction during trial, to stay the coming into force of provisions of the Medicare Protection Act until the court could decide their constitutionality. The trial court granted this injunction (2018 BCSC 2084), with an application for leave to appeal dismissed by the Court of Appeal (2019 BCCA 29, on Jan. 24, 2019).

The evidential portion of the trial closed in July 2019. Final arguments began in November 2019 and will conclude in early December 2019.

6. Consent to treatment

A. A.H. v Fraser Health Authority

An important decision from the BCSC this year was A.H. v Fraser Health Authority, 2019 BCSC 227, which involved the involuntary detention of A.H., by the Fraser Heath Authority (FHA), for almost a year from 2016 to 2017.

A key aspect to this case was whether s. 59 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6 (the “AGA”) authorizes designated agencies (including health authorities) to detain vulnerable adults indefinitely.

The AGA is legislation that aims to provide support and assistance for adults who are abused or neglected and allows designated agencies, such as FHA, to provide support to vulnerable adults. The AGA has specific requirements for agencies that make decisions regarding support and assistance, including when agencies must apply for authorization from the provincial court to provide services. Agencies must apply to the provincial court when adults are deemed incapable or unwilling to consent to the provision of services.

Section 59 of the AGA is an emergency provision, which allows agencies to provide services to adults without their consent, where an adult is abused or neglected, when it is necessary to act without delay to prevent harm. Section 59(2)(e) provides a designated agency the authority to take “any other emergency measure that is necessary to protect an adult from harm” but does not specifically address detention.

The court held that s. 59(2)(e) of the AGA does not authorise designated agencies “to detain adults on an indefinite or long-term basis” [99], and found a “flagrant overstepping of its [the F.H.A.’s] authority under the AGA.” [127] The court declined to address if s. 59(2)(e) authorized a short-term, emergency detention, pending a prompt application to the Provincial Court.

The court described the petitioner, A.H., as a “highly vulnerable” 39-year-old woman, who suffers from cognitive impairments and mental health issues. She has a history of substance abuse, family violence and sexual abuse. She was diagnosed with FASD (fetal alcohol spectrum disorder) in April 2017. A.H. was a First Nations woman, who in October 2016 was primarily living with her mother on First Nations land. On October 6, 2016, she was admitted to Delta Hospital, and detained without her consent, pursuant to s. 59(2)(e) of the AGA, as an emergency measure, after reports were made to FHA regarding her safety and that she was being abused.

Ultimately, the Court held that on October 6, A.H. was in serious risk of harm, but that F.H.A. inexplicably failed to apply for authorization from the Provincial Court for a support plan, and instead detained A.H. for nearly a year, without providing written reasons or access to legal counsel for more than 9 months, and placing serious restrictions on her personal freedoms. A.H.’s detention included several troubling aspects:

  1. FHA explained that A.H. needed to stay in hospital for her safety but provided no written reasons to her.
  2. H. was physically restrained at times.
  3. H. was denied requests to go outside.
  4. H. was denied access to telephone and Internet.
  5. H. was subjected to the “do not acknowledge protocol.”
  6. H. escaped Delta Hospital 3x, and police returned her to the hospital against her will.
  7. Police told FHA they did not have the authority to apprehend and detain A.H. against her will and advised that forms completed pursuant to the Mental Health Act, R.S.B.C. 1996, c. 288, following certification of A.H. under that legislation, could extend the requisite authority to them.
  8. FHA did not follow The procedures for Mental Health Act certificationand there was no evidence that she was certifiable.
  9. FHA did not apply for an order of provision and support from the Provincial Court until August 23, 2017.

On September 22, 2017, a provincial order authorized a support plan for A.H. with a residential placement, and A.H. was no longer detained unlawfully. However, the court considered and granted A.H.’s habeous corpus application, due to the seriousness of the circumstances, the impact on A.H.’s liberties, and the immense power imbalance between the designated agency and the vulnerable adults subject to its authority.

The court found, after a thorough review of the AGA, its purpose, structure and agency roles within the broader statutory scheme, the AGA did not authorize the ability to detain adults indefinitely, or on a long-term basis. The court noted that other legislation authorizations explicitly used the language of “detain” and “detention” and included express time limits, processes of mandatory review and mechanisms for the detainee to challenge a detention, which were not included in s.59.

The Court held that an involuntary detention for a period longer than is reasonably required to apply for a support and assistance order under s. 56 of the AGA is not an “emergency measure” as those words are used in s. 59(2)(e) of the AGA.

The court noted that the AGA was governed by principles and presumptions of self-determination for adults with disabilities, and involuntary measures should only be imposed as a last resort, in manners that are minimally intrusive. She found that the purpose of s.59 was only to “bridge a gap” as an emergency measure, and that the purpose of the legislation would be “substantially undermined” if interpreted in a way that permitted agencies to indefinitely detain vulnerable adults, without judicial oversight, and to compel service provision.

The Court found that a number of A.H.’s Charter rights were violated by FHA, including s. 9 (freedom from arbitrary detention); ss, 7 and 10(a) (right on detention to be informed promptly for the reason for the detention; right not to be deprived of liberty except in accordance with the principles of fundamental justice, including procedural fairness); s. 10(b) (right on detention to retain and instruct counsel without delay, and to be informed of that right); and s. 10(c) (right to have the validity of a detention determined by way of habeas corpus).

This decision highlights administrative and procedural failures in a healthcare contest and is particularly significant because of the restrictions on liberty in a mental health context.

B. Ombudsperson Office report

In the spring, the BC Ombudsperson Office released a report about the rights of involuntary patients under the Mental Health Act: “Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act” (Special Report No. 42). The report highlights a lack of compliance with legal documentation required on involuntary admission to designated psychiatric facilities in the province. Compliance issues include legally-required admission documentation were missing; and documents were late or improperly completed. For example, forms lacked reasons for detention, consent and descriptions of treatment, notification of a patient’s rights, and notification to relatives.

In some cases, facilities used standard rubber stamps to generally authorize treatment for individual patients instead of describing the specific treatment proposed for that patient. In other cases, physicians failed to explain why a person met the criteria for involuntary admission, yet the patient was nonetheless admitted. Some forms lacked required signatures or dates.

The report’s findings were based on an investigation that reviewed admission records of every involuntary admission in the province that took place in June 2017. A detailed analysis of mandatory admission forms found that across the province, all of the required forms were was completed in only 28% of involuntary patient admissions. Vancouver Coastal Health, Northern Health and the Provincial Health Services Authority had the lowest overall compliance rates.

7. Professional Regulation

In 2018 and 2019, professional regulation intersected with constitutional principles in four cases.

A. Christian Medical (freedom of religion)

Freedom of religion was found to give way to the professional obligations of physicians, who objected to particular forms of care (such as abortions or medically-assisted dying), to nonetheless provide effective referrals for such procedures. This was decided in an Ontario case, initially in 2018 and again on appeal in 2019: Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, affirmed 2019 ONCA 393.

CPSO had issued two policy statements.

A human rights policy stated that, “Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health-care provider must be provided to the patient.” It further obligated physicians to provide care “in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs.”

A second policy concerning physician-assisted dying said that, “Where a physician declines to provide medical assistance in dying for reasons of conscience or religion, the physician must not abandon the client. An effective referral must be provided.” (emphasis added)

At first instance, the Divisional Court held that the policies expressed a minimum standard of professional conduct that the discipline committee was to apply, and that they infringed freedom of religion under the Charter. However, the College’s objective, which was to facilitate patient access to health care services, was a pressing objective, and that the obligation of physicians to provide effective referrals was justified. The court noted that requiring patients to “self-refer” to other physicians would impose a disproportionate burden on vulnerable and marginalized groups. The need for effective referrals avoided many kinds of harm to patients, including emotional distress, loss of eligibility for treatment due to passage of time, and denial of care where patients lacked the resources to find another physician.

The Court of Appeal reached the same conclusions, despite the appellants tendering fresh evidence. The court went further to note that the duty to refer was itself a compromise acceptable to many objecting physicians (at para. 186), and that, “[t]hose who do not find them acceptable may be able to find other practice structures that will insulate them from participation in actions to which they object” (at para. 186). The court went on to note that, “the appellants have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests.”

B. Strom (freedom of expression)

Freedom of expression was found to give way (at least at a first level of judicial review) to professional obligations in the Strom case, where a nurse, while on leave, posted comments on social media criticizing the end of life care her grandfather received at a care facility, and criticizing the professional competence of nursing staff at the facility. Strom v Saskatchewan Registered Nurses’ Association, 2018 SKQB 110 (appealed to the SKCA).

A discipline committee found that the nurse had failed to take her concerns through appropriate channels, and also identified herself as a nurse before public allegations against other nurses and health care providers, without first obtaining all relevant facts. She was disciplined for professional misconduct through a reprimand and a $1,000 fine. She was also ordered to pay costs of $25,000. On the issue of freedom of expression, the tribunal decided that the professional standards justifiably infringed freedom of expression.

The Saskatchewan Queen’s Bench found that the discipline committee’s approach to the Charter issue was reasonable, and declined to interfere with it.

The nurse appealed to the Saskatchewan Court of Appeal, which heard her appeal in September 17, 2019. A decision is outstanding.

C. MaryMoon (freedom of expression)

Freedom of expression did not give way to a law which protected reserved titles from use by non-registrants, in the recent “death midwives” case: College of Midwives of British Columbia v. MaryMoon, 2019 BCSC 1670.

The case involved a person, Ms. MaryMoon, who was not a registrant of the College of Midwives of British Columbia, who used the reserved title “midwife” as part of her occupational title, “death midwife”. According to a website run by Ms. MaryMoon, a death midwife provides guidance and support to “death journeyers” and their families.

The term “midwife” is reserved for exclusive use by members of the college, pursuant to regulations under the Health Professions Act. The College sought an injunction under section 12.1(1) of the HPA, which stipulates that a person other than a registrant must not use a reserved title as part of another title describing the person’s work.

Ms. MaryMoon challenged the constitutionality of the law, which brought the Attorney General of BC into the proceeding as a party.

The court accepted that s. 12.1(1) applied to Ms. MaryMoon, but then held that the restriction infringed freedom of expression, and was NOT justifiable, because it did not minimally impair freedom of expression (due to the existence of another provision in the HPA which prevents uses of a title or descriptions that wrongly express or imply that a person is a registrant of a college).

The court struck-out s. 12.1(1) without any period of delay.

The matter has been appealed by both the AGBC and the College. As counsel for the College, we can say that we consider the decision highly problematic, particularly with respect to the court’s formulation of the legislative objectives of the reserved title provisions, and its minimal impairment analysis.

D. Essilor (Provincial jurisdiction over out-of-province health devices)

In 2019, the Ontario Court of Appeal held that the Ontario College of Optometrists did not have jurisdiction over an Internet-based provider of prescription eyewear to customers in Ontario: College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265, leave to appeal to the SCC dismissed.

In an earlier lower-court judgment,the Ontario Superior Court decided that an Ontario college could regulate the activities of Essilor, whose “online” business operated physically in British Columbia, but which that court found was dispensing prescription eyewear to customers in Ontario, without involving an Ontario-licensed professional.

The Ontario Court of Appeal decided that Ontario’s Regulated Health Professions Act was not constitutionally applicable to Essilor, due to a lack of sufficient connection between its business and Ontario that would make it subject to Ontario laws.

Essilor argued on appeal that it did not perform the controlled act of “dispensing” in Ontario. Essilor accepts online orders from, and delivers prescription eyewear to, Ontario customers. The court decided, however, that the College does not regulate acts by customers. [74] The court found that delivery to Ontario constituted part of the controlled activity of “dispensing”, [90] but despite that, delivery was not enough to give rise to a substantial connection, given that delivery involved (according to the court) a commercial aspect involving no aspect of professional health care skills. [96]

The court recognized that Essilor met British Columbia requirements for dispensing without in-person fitting or adjustment on delivery, [106] but not Ontario requirements for fitting and adjusting. The court declined to find this failure of Essilor relative to Ontario requirements as supporting a substantial connection (at para. 109).

Some parts of the decision are puzzling. For example, the decision that Essilor was not dispensing in Ontario did not address the fact of Essilor advertising in Ontario, or the fact of Essilor providing a 1-800 number for customers to call for professional assistance, after they have received their classes in Ontario. But the matter appears to have ended (at least in Ontario), given the refusal of the SCC to grant the Ontario college leave to appeal.

8. Mental Capacity

In A.B. v. C.D., a father has appealed two B.C. Supreme Court orders (2019 BCSC 254 and 2019 BCSC 604) respecting the treatment and protection of his 14 year-old child.

The dispute involves a 14-year-old transgender youth (A.B.) and his father (C.D.) and A.B.’s decision to proceed with hormone treatment, which was recommended by his doctors for gender dysphoria. A.B. started the action in February 2019, and sought to be found competent to consent to and proceed with hormone treatment.

A.B.’s father filed a petition seeking injunctive relief to prevent doctors and counsellors from providing A.B. with advice or treatment.

The first order (the Treatment Order) by Justice Bowden (2019 BCSC 254) authorized the treatment, and dismissed C.D.’s application for an injunction. The court found that A.B. proceeding with hormone treatment without delay was in the A.B.’s best interests, based on the “totality of the medical evidence regarding A.B.’s medical needs”, and because A.B.’s mother and a doctor expressed the view that further delay in hormone treatment could impact A.B.’s mental health (by placing him at risk of suicide).

In making the Treatment Order, the court concluded A.B. had provided informed consent and met therequirements under s. 17 of the Infants Act, as the consent form signed by A.B. and the evidence of his doctors were sufficient to establish that A.B. had mental capacity and was aware of and understood the nature, consequences, foreseeable benefits, and foreseeable risks of the hormone treatment (at para. 56).

After the court released its reasons for the Treatment Order, A.B. brought an application to restrain C.D. from publishing, speaking or giving interviews about the case, or about A.B.’s personal and medical information. A.B. also sought an order that would restrain A.B.’s father from sharing related documents or information with other persons, including media and social media organizations, who might publish that information. In his response, C.D. raised his freedom of expression under s. 2(b) of the Charter.

Madam Justice Marzari granted an order (the “Protection Order”) pursuant to s. 183 of the Family Law Act (2019 BCSC 604). The court concluded that A.B. was an at-risk family member based on their dependency on both their parents, their love for their father, A.B.’s discomfort with their physical body, their risk of suicide and their exposure to bullying and harassment (at para. 19).

On balancing C.D.’s freedom of expression and harm to A.B., the court found that the balance favoured the protection of the safety and security of A.B.

C.D. has appealed both the Treatment Order and the Protection Order, in an appeal that was set for September 4, 2019. C.D. alleges both procedural and substantive errors, including the summary process followed by Justice Bowden, sufficiency of reasons, and failure to weigh the evidence.

On August 9, 2019, the B.C. Court of Appeal granted leave to intervene in the appeal to the Provincial Health Services Authority, BC Children’s Hospital (PHSA), West Coast LEAF, the Canadian Professional Association for Transgender Health (CPATH), Egale Canada Human Rights Trust, the Association for Reformed Political Action Canada (ARPA) and Justice Centre for Constitutional Freedoms (JCCF). The Court held that s. 17 of the Infants Act and the issue of consent for treatment raise issues of general importance.

The Court also decided that the Protection Order raised issues concerning Charter s. 2(b) (freedom of expression), and competing rights of A.B. and C.D. under Charter s. 7 (right to life, liberty and security of the person). Those issues raise questions of general import not previously litigated in the Court of Appeal.

The Court of Appeal has not yet released its appeal decision.

Lisa C. Fong, Lauren Riva, and Michael Ng