chapter I

Question 1

what factors are expanding the role of law?

Answer 1

1. the shift from paternalistic to rights-based notions of health care: legal rights > best interests
2. recognition that all capable patients can make their own decisions despite the wishes of their closest relative
3. the cycle of apathy, crisis, and panic – e.g. child abuse in residential schools
4. increase in complex, piecemeal legislation. no attempt to rationalize, consolidate or streamline – legislation overlaps and duplicates
5. expansion of the health rubric
6. politicizing of health care. e.g. wait times, hospital closings, lobbying
7. increasing fiscal (government money) restraint. healthcare is the largest portion of the provincial budget

Question 2

what power does the federal government have regarding health legislation?

Answer 2

criminal law and procedure – but must be framed as a prohibition coupled with a sanction – limited ability to regulate

laws for peace, order, and good government (POGG)

matters needing national approach e.g. airline safety

temporary measures in national emergencies e.g. pandemics

etc.

Question 3

how does the federal government induce the provincial government to enact specific programs and legislation?

Answer 3

the federal government uses their taxing and financial power

Question 4

what power does the provincial government have regarding health legislation?

Answer 4

authority over almost all health-related matters according to their power over hospitals – except marine hospitals

property and civil rights (contracts, property, torts, employment, commercial)

matters of a private or local nature

trades, professions, and industries within their boundaries

Question 5

describe the Canada Health Act (CHA)

Answer 5

does not give people a right to publicly-funded health care

establishes criteria the provincial health insurance plans must meet to obtain a federal cash contribution

provides the legislative basis for the Federal-Provincial Health Accords – which sets out the funding formula

is not comprehensive, covering only “insured health services” (i.e. medically-necessary hospital care, dental surgery in hospital and physician services) and only “insured persons” (residents of the province with some exceptions)

prohibits the provincial health insurance plans from paying for insured services that are subject to “extra-billing” or “user fees”

Question 6

which act provides the legislative basis for the Federal-Provincial Health Accords?

Answer 6

the Canada Health Act (CHA)

• Federal-Provincial Health Accords sets out the funding formula

Question 7

what are the 5 pillars of medicare?

Answer 7

comprehensiveness

universality

public administration

portability

accessibility

Question 8

what gives residents the legal entitlement to publicly-funded health services?

Answer 8

the provincial/territorial health insurance plans

the provincial/territorial insurance health plan may choose to publicly-fund various optional treatments

Question 9

what are the common criminal code offences?

Answer 9

assault

sexual exploitation

providing necessaries of life

counselling, aiding, or abetting suicide

Question 10

what are the types of assault?

Answer 10

assault

assault with a weapon/assault causing bodily harm

aggravated weapon

Question 11

describe simple assault

Answer 11

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/threat of force, fraud, or exercise of authority provides no defence

Question 12

describe assault with a weapon or causing bodily harm

Answer 12

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

Question 13

describe aggravated assault

Answer 13

wounding, maiming, disfiguring, or endangering life

Question 14

name the conditions for when consent is not considered a defence, making the case a case of sexual assault

Answer 14

consent of a person under 16 provides no defence to sexual assault unless the complainant is:

12/13 and the accused is less than 2 years older

or, 14/15 and the accused is less than 5 years older

Question 15

what is sexual exploitation an a criminal code offense?

Answer 15

any sexual contact with a 16 or 17 year old by a person in a relationship of trust or authority

it is also an offence to engage in such conduct

Question 16

what is a case of sexual exploitation mentioned in class?

Answer 16

R. c. Colas

a secondary school teacher was convicted of sexual exploitation and sentenced to 20 months’ imprisonment for having a sexual relationship with one of his students

Question 17

describe providing necessaries of life as a criminal code offence

Answer 17

when parents/guardians fail to provide the necessaries of life without a lawful excuse to their children who are under 16 and are destitute or in necessitous circumstances or if the failure ^^ endangers their life, or likely to permanently endangers their health

Question 18

what is a case of providing necessaries of life mentioned in class?

Answer 18

R. v. J.(S.)

couple was charged with
1. aggravated assault
2. failing to provide the necessaries of life to their child thereby endangering his life
3. failing to provide the necessaries of life to their child who was in necessitous circumstances

the charge of aggravated assault against the couple had to be dropped nor was there enough evidence to prove that the couple’s failure to seek medical attention endangered the child’s life.

but, all the doctors agreed that when the child entered hospital, he was malnourished and anemic, and had vitamin C levels consistent with scurvy, three open wounds, a skin condition so severe as to require transfusions, and scarring all over his body.

couple was convicted of failing to provide the necessaries of life to their child who was in necessitous circumstances because they failed to get their son needed medical treatment in the weeks between his arrival in Canada and his hospital admission

Question 18

describe counselling, aiding, or abetting suicide as a criminal code offence

Answer 18

must deliberately encourage, assist or induce, the person to commit suicide. merely advising or providing info is not enough.

a person’s consent to having death inflicted on themselves provides no defence

Question 19

what effect did the case: Carter v. Canada have on the MAID law?

Answer 19

created a narrow exception to criminal liability regarding physicians providing MAID to competent adults with grievous and irremediable medical conditions causing enduring and intolerable suffering

did not create a legal right to MAID

Question 20

what are the 3 parts to civil action?

Answer 20

pleadings

examination for discovery

trial

Question 21

describe the pleading stage of civil action

Answer 21

statement of claims sets out the plaintiff’s case against the defendant

statement of defence sets out the defendant’s response to the claim.

if the defendant fails to respond, the plaintiff will get a default judgement

Question 22

describe the examination of discovery stage of civil action

Answer 22

pre-trial legal proceeding: parties examine each other’s witnesses and documents

vast majority of cases are abandoned or dismissed on preliminary motions or settled prior to trial

Question 23

describe the trial stage of civil action

Answer 23

parties present evidence and arguments in court

judge/jury considered evidence, issues a decision, and determined what remedy is given

plaintiffs must prove they have suffered a loss or harm that is recognized as being somewhat recoverable

Question 24

what is a damage award?

Answer 24

the most common remedy from a trial

only gives the plaintiff a legal right to seek recovery and not the actual money awarded

Question 25

what are the types of common law tort actions?

Answer 25

battery

assault

false imprisonment

Question 26

describe battery, a common law tort action

Answer 26

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”

the plaintiff doesn’t have to 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 they can establish a defence

the mistaken belief that the plaintiff consents provides no defence

Question 27

what is a case of battery (tort) mentioned in class?

Answer 27

Toews (Guardian ad litem of) v. Weisner

Weisner was a nurse providing vaccinations of HepB at school.

Neither of Toews’ parents signed the consent form and Toews told Weisner her parents did not want her to be vaccinated

but, Weisner believed Toews’ mother provided oral consent, vaccinating Toews. No harm resulted but Weisner was held liable in battery for $1000

Question 28

describe assault, a common law tort action

Answer 28

**defined more narrowly in tort law than in criminal law

intentional creation in the mind of another of a reasonable fear of imminent physical contact

if the defendant had the apparent intent and ability to bring about a physical contact, it is irrelevant whether they intended or had the ability to do so – issue dependant on whether the plaintiff reasonably believed they were about to be touched.

tort includes a threat of any immediate harmful or socially offensive physical contact

Question 29

describe false imprisonment, a common law tort action

Answer 29

intentional bringing about of a total restraint of movement of another person

once plaintiff proves that they were restrained, even momentarily, the defendant will be held liable unless they can establish a valid defence

Question 30

describe individual liability

Answer 30

health professionals are independent decision makers who are accountable for the decisions that they make.

it is no defence to a civil suit or prosecution for a health professional to argue that “I was only following orders or management policy.”

administrators can be held civilly liable in negligence for their own conduct, including screening, hiring, placing, and monitoring subordinate staff.

non-professionals who purport to provide professional services are held to the standards of a professional.

Question 31

describe vicarious liability

Answer 31

imposed on individuals based on their relationship with the wrongdoer and not personal fault on their part

vicarious liability doesn’t diminish the employee’s personal liability

vicarious liability applies to “master/servant” relationships, but not to independent contractors

Question 32

compare vicarious liability before and now

Answer 32

traditionally, employers were only held vicariously liable for civil wrongs that employees committed in the “course of employment”

now, employers have been held vicariously liable for civil wrongs that volunteers, trainees, and students commit in carrying out tasks under the employer’s directions

traditionally, employers were not vicarious liable for their employees’ intentional criminal acts, because this was viewed as outside the scope of employment

principles of vicarious liability were expanded following public scandals over the abuse of children in residential schools.

initially, the Supreme Court defined liability in terms of whether employer puts the the employee ins a position of trust, control, or power over the plaintiff that increased the likelihood of sexual/physical abuse

Question 33

what two sub issues does the current vicarious liability test entails?

Answer 33

1. vicarious liability is imposed if the existing cases clearly establish its applicability in the circumstances (e.g. traditional employer/employee)
2. party may be held vicariously liable if the party is in a sufficiently close relation with the wrongdoer AND there is a significant connection between the wrongful act and the wrongdoer’s assigned task or authorized conduct

Question 34

what is a case of vicarious liability mentioned in class?

Answer 34

Roman Catholic Episcopal Corporation of St. John’s (“Archdiocese”) v. John Doe

vicarious liability imposed on the Archdiocese for a priest’s 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 priest’s assigned tasks and the abuse.

Question 35

what does the Child, Youth, and Family Services Act (CYFSA) govern?

Answer 35

the legal principles applicable to various services provided to children

the age of consent for those services

the mandatory reporting of children in need of protection

Question 36

what does the Coroners Act govern?

Answer 36

provincial coroners’ responsibilities

duty of health professionals and institutions to report specified categories of deaths to the coroners

the duty that everyone has to report unexpected and suspicious deaths to the police or a coroner

Question 37

what does the Health Insurance Act do?

Answer 37

establishes the administration of OHIP

defines the terms “insured services” and “insured persons”

establishes the rules for paying health practitioners and facilities

voids any private insurance contract for insured services provided to insured persons

taken together, OHIP and the health insurance act gives insured persons a legal right to insured services

Question 38

what does the Health Protection and Promotion Act do?

Answer 38

governs boards of health and their public responsibilities which include:

monitoring communicable diseases

overseeing sanitation and immunization and programs

providing public health education

inspecting restaurants, food processing plants, and other facilities

governs the obligations of health facilities and regulated health professionals to report communicable, reportable, and virulent diseases to the medical officers of health (MOHs)

Question 39

what does the Limitations Act do? describe the amendments made

Answer 39

created a standard limitation period of 2 years for almost all civil actions

postponing the onset of the limitation period has important implications for record keeping, especially in the case of children

amendments eliminated the limitation period for:

all sexual assault

other sexual misconduct or other assaults involving those under 18

any assaults committed in an intimate relationship

Question 40

what does the Mental Health Act (MHA) govern?

Answer 40

administration of psychiatric hospitals

the criteria for voluntary, informal, and involuntary admission

community treatment orders

Question 40

what does the Regulated Health Professions Act do?

Answer 40

establishes the colleges and legislative framework governing Ontario’s 26 self-regulated health professions

along with the Health Professions Procedural Code, they set out the:

registering of applicants

scope of practice

process of investigating complaints and disciplining members

mandatory reporting of sexual abuse of patients

unfitness and incapacity

the colleges typically issue detailed guidelines and policies that its members are expected or required to follow

Question 40

when does a limitation period begin to run?

Answer 40

the plaintiff knew or ought to have known the facts upon which the wrongful act was based

understood the harms that wrong caused

was physically, mentally, and emotionally able to bring an action

Question 40

what does the Public Hospitals Act do?

Answer 40

governs administration of public hospitals

provides for provincial funding of hospitals

Question 41

what does the Social Work and Social Service Work Act do?

Answer 41

sets out a similar framework (to the Regulated Health Professions Act) and set of procedures and rules governing social workers and social service workers

Question 42

what does the Gift of Life Network Act governs?

Answer 42

inter-vivos (live) and post mortem donations of organs and tissues

post mortem donations of bodies for transplant, education, and scientific purposes