HEALTH CARE LAW:

Law 3101 & Health Sciences 3101

WINTER TERM, 2015

R. Solomon, Professor
The Faculty of Law
Western University

Chapter I: Preliminary Issues

Overview

The Changing Legal Environment.

Canada Health Act.

Common Criminal Code Offences.

Civil Law Process.

Selected Tort Actions.

Basic Concepts of Liability.

Relevant Legislation.

Part 1: The Changing Legal Environment

More litigious society.

All professionals under greater legal scrutiny.
American concept.

More suits against health, counselling and

practitioners, as well as all other professionals.
4x increase in suits 1976 to 2013.
85x increase in damages + costs.

Law playing greater role, particularly for administrators.

Health professional as party, witness, compliance officer,

and consultant.

care

Factors Expanding the Role of Law

First, shift from paternalistic to rights-based notions of

health care. Issues increasingly framed in terms of the
respective legal rights of the parties, rather than the best
interests of the patient.

Second, recognition that all competent patients can make

their own health, counselling and care decisions, despite
the wishes of their next-of-kin.

Third, cycle of apathy, crisis and panic.

Child abuse: native residential school scandal.
Violence against women: Bernardo.
Privacy.
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Fourth, flood of complex, piecemeal legislation.

No attempt to rationalize, consolidate or streamline.
Legislation overlaps and duplicates.

Fifth, expansion of the health rubric.

Sixth, politicizing of health care: wait times; doctor fees;

hospital closings; and lobbying for causes.

Seventh, increasing fiscal restraint.

As federal share of health care costs decreased, the
provincial share increased, limiting funding for all other
provincial services.
Provincial governments are under tremendous pressure to
streamline health care services and reduce costs.

The Expectations of the Courts

Canada is not California north.

Not expected to know the law, or be omniscient, an insurer

or always right.

Courts generally supportive of health professionals.

Courts expect health professionals to act:

reasonably; and
in good faith.

The current law is wholly compatible with the professional

and ethical standards of health, counselling and care
professionals.
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Part 2: Canada Health Act

Does not give people a right to publicly-funded health

care.

Establishes conditions for a full federal cash contribution.

Legislative basis for the Federal-Provincial Health

Accord, which expired in 2014.

Governs insured health services (i.e. hospital

dental surgery in hospital and physician services).

care,

Five pillars of medicare:

public administration;
comprehensiveness;
universality;
portability; and
accessibility.

Prohibits the provincial health insurance plans from

paying for insured services that are subject to extrabilling or user fees.

Federal contribution must be acknowledged.

Part 3: Common Criminal Offences, The Civil

Law Process and Selected Tort Actions
(a) Common Criminal Code Offences

Assault:
intentionally applying force to another without consent; or
attempting or threatening to apply force to another, if one
has or apparently has the present ability to carry out the
threat.
Consent obtained by use or threat of force, fraud or
exercise of authority provides no defence.

Assault with a weapon or causing bodily harm.

Assault while carrying, threatening to use, or using a
weapon (or an imitation weapon).
Assault causing bodily harm requires a hurt or injury that
is more than transient or trifling.
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Aggravated assault (wounding, maiming, disfiguring, or

endangering).

Sexual assault; sexual assault with a weapon, while

threatening a third party or causing bodily harm; and
aggravated sexual assault.
Sexual assaults are assaults of a sexual nature.
Consent of person under 16 provides no defence to sexual
assault unless the complainant is:
12 or 13 and the accused is less than 2 years older; or
14 or 15 and the accused is less than 5 years older.

Sexual exploitation.
Any sexual contact with a 16 or 17-year-old by a person in
a relationship of trust or authority.
R. v. Colas.
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Criminal harassment.
Knowing that a person is harassed or being reckless in this
regard and engaging in specified conduct, without lawful
authority, that would cause the person to fear for his or her
own or another persons safety.
The specified conduct includes:
repeatedly following or communicating with another;
watching a persons home or workplace; and
engaging in threatening behaviour.

Proposed cyberbullying offence.

Proposed legislation would, among other things, make it an
offence to distribute intimate images of another person
without that persons consent.
Has since been passed
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Providing necessaries of life.

Parents or guardians failure to provide necessaries of life
without a lawful excuse to their children who are under 16,
if the children are destitute or if the failure endangers their
life, or has or is likely to permanently endanger their health.
Failure to provide necessaries of life to those under your
charge without lawful excuse, if they cannot withdraw and
provide for themselves, and failure endangers their life or
has or is likely to permanently endanger their health.
R. v. J.(S.).

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Counselling, aiding or abetting suicide.

Counselling, aiding or abetting anyone to commit suicide,
whether or not it is attempted or ensued. (Criminal Code, s.
241)
A persons consent to having death inflicted on him or
herself provides no defence to criminal liability. (Criminal
Code, s. 14)

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(b) Civil Law Process

Parties can settle at any time and on any terms they choose.
The process is designed to encourage settlements.

Statement of claim:
sets out the plaintiffs case against the defendant.
filed with a court clerk and must be served on the
defendant.

Statement of defence:
sets out the defendants response to the statement of claim.

Examination for discovery:

pre-trial legal proceeding at which parties examine each
others witnesses and documents.
Discoveries permit counsel to assess the strength of the
opposing partys case, and minimize surprise at trial.
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Trial.
The parties present evidence and arguments in court. The
judge or jury considers the evidence, issues a decision and
determines what remedy, if any, is to be given.
A damage award, the most common remedy, only gives the
plaintiff a legal right to seek recovery and not the actual
money awarded.

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(c) Selected Tort Actions

Battery.
Battery is broadly defined as the intentional bringing
about of harmful or socially offensive physical contact
with the person of another.
Any nonconsensual physical contact is viewed as
offensive, except for socially-accepted practices, but
these change over time.
The plaintiff need not be physically harmed by the battery
or aware of it at the time.
Once physical contact is proven, the defendant will be
held liable unless he or she can establish a defence.
A mistaken belief that the plaintiff consented provides no
defence.
Toews (Guardian ad litem of) v. Weisner.
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Assault.
Assault is defined as the intentional creation in the mind
of another of a reasonable apprehension of imminent
physical contact.
The plaintiff need not fear for his or her physical safety.
The defendant need not have actual ability or intent to
carry out the threat, provided the plaintiff reasonably
believed that the threat was going to be carried out (e.g.
defendant with unloaded gun threatens to shoot the
plaintiff).

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(d) Basic Concepts of Liability

As a general rule, individuals are only held legally responsible for their own behaviour.

Individual liability.
Health professionals are independent decision makers who
are accountable for the decisions that they make.
It is no defence to civil suit or prosecution to argue I was
only following orders.
Administrators can be held civilly liable for negligence in
screening, hiring, placing, and monitoring subordinate staff.
Non-professionals who purport to provide professional
services are held to the standards of a professional.
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Vicarious liability.
Can arise in several situations, the most important being
employer/employee relationships.
Traditionally, employers were only held vicariously
liable for civil wrongs that employees committed in the
course of employment.
More recently, employers have been held vicariously
liable for civil wrongs that volunteers, trainees and
students commit in carrying out tasks under the
employers direction.
Vicarious liability does not diminish the employees
personal liability for the civil wrong.
Vicarious liability applies to master/servant relationships, but not to independent contractors.
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 Traditionally, employers were not vicariously liable for

their employees intentional criminal acts, because
such conduct fell outside the scope of employment.
The principles of vicarious liability were expanded
following the public scandals in the 1990s over the
widespread abuse of children in residential schools and
other facilities.
Initially, the Supreme Court defined vicarious liability in
terms of whether the employer put the employee in a
position of trust, control or power over the plaintiff that
increased the likelihood of sexual/physical abuse.
The current vicarious liability test entails two sub-issues:
First, vicarious liability is imposed if the existing cases
clearly establish its applicability in the circumstances
(e.g. traditional employer/employee relationships).
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 Second, a party may be held vicariously liable if:

the party is in a sufficiently close relationship with
the tortfeasor; and
there is a significant connection between the
wrongful act and the tortfeasors assigned task or
authorized conduct.
No vicarious liability imposed on government for a
private orphanage that it funded, because the relationship between the government and the orphanage was not
sufficiently close.
Vicarious liability imposed on Catholic diocese for a
priests sexual abuse of choir boys, because the
relationship between the diocese and the priest was
sufficiently close and there was a significant connection
between the priests assigned tasks and the abuse.
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Part 4: Relevant Legislation

Child and Family Services Act governs:

the legal principles applicable to various services
provided to children;
the age of consent for those services; and
the reporting of children in need of protection.

Coroners Act governs:

provincial coroners responsibilities;
the duty of health professionals and institutions to report
specified categories of deaths to the coroner; and
the duty that everyone has to report unexpected and
suspicious deaths to the police or a coroner (e.g.
homicides, suicides and deaths resulting from
misadventure or negligence).
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Health Protection and Promotion Act:

governs boards of health and their broad public health
responsibilities, including:
monitoring communicable diseases;
overseeing sanitation and immunization programs;
providing public health education; and
inspecting restaurants, food processing plants and other
facilities.
also governs the obligation of health facilities and
regulated health professionals to report communicable,
reportable and virulent diseases to the medical officer of
health.

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Trillium Gift of Life Network Act:

governs inter-vivos and post-mortem donations of organs
and tissues, and post-mortem donations of bodies for
transplant, education and scientific purposes.

Mental Health Act:

governs administration of psychiatric hospitals, and the
criteria and procedures for voluntary, informal and
involuntary admission, and community treatment orders.

Public Hospitals Act:

governs the administration of public hospitals.
provides for funding.

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Limitations Act, 2002:

creates a standard limitation period of two years for almost
all civil actions.
A limitation period only begins to run when:
the plaintiff knew or ought to have known the facts
upon which the wrongful act was based;
understood the harms that the wrong caused; and
was physically, mentally and emotionally able to bring
an action.
Postponing the onset of the limitation period has important
implications for record keeping, particularly in the case of
children.

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Chapter I: Recap

Canada Health Act.

Five pillars of medicare.

Common criminal offences: assault; sexual assault; sexual

exploitation; providing necessaries of life; and counselling, aiding
or abetting suicide.

Civil law process.

Tort actions: assault; and battery.

Individual and vicarious liability.

Relevant legislation.
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